negotiable promissory notes were given is proved, a party who claims to have purchased the notes before maturity must assume the burden of proof to show that he is a bona fide purchaser for value before maturity and without notice. To the same effect are Savings Bank v. Scott, 10 Neb. 86; Olmstead v. N. E. Mtge. Sec. Co., 11 Id. 492; Cheney v. Cooper, 14 Id. 416; Evans v. De Roe, 15 Id. 631. And every subscquent security given for a loan originally usurious, however remote or often renewed, is subject to the plea and proof of usury; and when the proof of usury is sufficient, the court will apply all payments of interest upon such usurious loan as a payment, pro tanto, of the principal: Nelson v. Hurford, 11 Neb. 465.

That there was usury of an aggravated character in the original transaction, is proved beyond a doubt. There is an utter failure of proof to show that the bank was a bona fide purchaser of the note in question before maturity. The plaintiff, therefore, having obtained the note after it became due from one who held subject to the maker's equities, is not protected. The note in his hands was subject to the same defenses as if held by the payee.

Usury being shown, all payments upon the note, whether as principal or as interest, are under the statute to be applied in payment of the principal. The payments are shown to have greatly exceeded the sum of fifty dollars. It was the duty of the plaintiff in error, therefore, to have accepted the $250 tendered by the defendant in error. This tender was absolute, and without qualification, and has since been kept good. It therefore divested the lien of the mortgage: Tompkins v. Batie, 11 Neb. 147, 38 Am. Rep. 361. The plaintiff in error had no lien on the property at the time he took possession of the same, and was not entitled to possession thereof. The judgment of the district court is clearly right, and is affirmed.

ALLEGATIONS AND PROOF THAT A CONTRACT IS NOT USURIOUS, where it appears to be so, must be explicit and clear of all doubt: Lockwood v. Mitchell, 7 Ohio St. 387; 70 Am. Dec. 78; Roundtree v. Brinson, 98 N. C. 107. USURY IN A TRANSACTION AVOIDS ALL SUBSEQUENT securities growing out of it: Price v. Lyons Bank, 33 N. Y. 55; 88 Am. Dec. 368. But if a security, founded upon an antecedent lawful consideration, becomes void, or tainted with fraud, the original demand will be revived, and may be enforced: Roundtree v. Brinson, 98 N. C. 107. When partial payment is made to a national bank under a contract to pay usurious interest, in the absence of a stipulation as to how the payment shall be appropriated, the law will apply it to that part of the contract which is legal: Stout etc. v.

Bank, 69 Tex. 384. In Minnesota, the statutory exception, by the terms of which "bona fide purchasers of negotiable paper" are protected from the avoiding effects of usury, is not applicable to mortgages securing negotiable paper: Scott v. Austin, 36 Minn. 460.

LIEN OF PLEDGEE IS EXTINGUISHED by a valid tender to him of the amount due, and his refusal to accept it: Loughborough v. McNevin, 74 Cal. 250; 5 Am. St. Rep. 435, and note 440.

Tender after DEFAULT of the amount due upon a chattel mortgage must be kept good to be availing: Tompkins v. Batie, 11 Neb. 147; 38 Am. Rep. 361.

NORTHFIELD KNIFE COMPANY v. SHAPLEigh.

[24 NEBRASKA, C35.]

SERVICE OF NOTICE UPON THE GARNISHEE CREATES A LIEN on the goods of the debtor in his hands, and such goods are not subject to levy and sale upon process thereafter levied during the continuance of such attachment lien.

GARNISHMENT. ACTION IN EQUITY WILL LIE TO DETERMINE PRIORITY OF LIENS AND FOR AN INJUNCTION till final hearing, where there has been service of notices upon garnishee, and other creditors, who have obtained judgments and levied executions upon the garnished property, threaten to sell the same under execution.

COURT MAY APPOINT RECEIVER TO TAKE CHARGE OF GOODS WHERE GARNISHEE ABANDONS THE PROPERTY, or where he declines to retain the same in his hands.

W. L. Browne, O. H. Ballou, and S. P. Vannatta, for the plaintiffs in error.

M. A. Hartigan and R. B. Windham, for the defendants in

error.

MAXWELL, J. This action was brought by the plaintiffs in the district court of Cass County, to restrain the defendants from selling certain goods of one John S. Duke upon executions. It is alleged in the petition that, on or about December 20, 1887, the several plaintiffs had begun suits in said court against one John S. Duke, a hardware merchant in said county, and had sued out orders of attachment on the stock of goods then owned by said Duke; that when an attempt was made to levy said attachments, plaintiff therein learned that said Duke was not in possession of the goods, but that Sherman S. Jewett & Co., by their agent, W. S. Wise, had the actual and manual possession thereof, and the attachments were not levied, but that on further showing the plaintiffs sued out garnishee process against said Wise, and had the same served on said garnishee and Duke; that said Wise proceeded to answer said

garnishee process, and did appear in the district court of Cass County, on the sixteenth day of January, 1888, and answered in said cause that he held said stock of goods under a chattel mortgage securing eight hundred dollars, and that the invoiced and appraised value of said stock was about four thousand dollars; that the defendants and others did obtain judgments in the county court of Cass County, Nebraska, in the several sums due from said Duke, and did sue out executions on said judgments, and caused the same to be placed in the hands of M. McElwain, constable, who levied the same on the unsold portion of said stock of goods. There is also an allegation that the garnishee is about to abandon or has abandoned the care of the property. The prayer is for a decree adjusting the priority of the liens, and to enjoin the defendants from selling said property in satisfaction of the executions in their hands until the liens of the plaintiffs are satisfied, and for the appointment of a receiver.

The defendants demurred to the petition, upon the ground that the court had no jurisdiction; that the facts stated in the petition did not constitute a cause of action, and that there was a misjoinder of parties plaintiff and defendant.

The demurrer was overruled, and the defendants electing to stand on their demurrer, judgment was entered as prayed in the petition.

Three questions are presented by the record: 1. Whether service of a notice upon a garnishee creates a lien on the goods of the debtor in his hands; 2. Whether an action in equity can be maintained to determine the priority of liens, and for an injunction till the final hearing; 3. The authority of the court to appoint a person to take charge of goods which a garnishee declines to retain in his hands.

In Mathews v. Smith, 13 Neb. 179, and Reed v. Fletcher, 24 Id. 435, it was held that, upon service of a notice on a garnishee, it created a trust in the property in his possession. Hence, to entitle the creditor to serve notice upon the garnishee, the property or credits must be within the jurisdiction of the court; therefore, if a non-resident of the state should come into it for a mere temporary purpose, but have no property of the debtor in his hands in the state, he would not be liable as garnishee: Baxter v. Vincent, 6 Vt. 614; Ray v. Underwood, 3 Pick. 302; Wright v. C., B., & Q. R. R., 19 Neb. 175; 56 Am. Rep. 747; Green v. Farmers' etc. Bank, 25 Conn. 451; Casey v. Davis, 100 Mass. 124; Sawyer v. Thompson, 24 N. H. 510; Lawrence v.

AM. ST. REP., VOL. VIII. — 15

Smith, 45 Id. 533; 86 Am. Dec. 183; Nye v. Liscombe, 21 Pick. 263; Tingley v. Bateman, 10 Mass. 343; Jones v. Winchester, 6 N. H. 497; Mathews v. Smith, 13 Neb. 190; Danforth v. Penny, 3 Met. 564; Gold v. Housatonic R. R. Co., 1 Gray, 424.

As is said in Wright v. C., B., & Q. R. R. Co., supra, if it appears that the garnishee has no money or property of the principal debtor in the state, or that there is no money due from him to be paid therein, he will not be chargeable as garnishee. The goods and the party garnished being both within the jurisdiction of the court, it will exercise such jurisdiction over them as the necessities of the case may require.

We are aware that in Bigelow v. Andress, 31 Ill. 322, it was held that garnishment imposed no lien upon the goods in the garnishee's hands, and did not put them in custodia legis. If this was the rule, proceedings by garnishment would be an expensive farce, which would give the attaching creditor no rights under the attachment. Neither can the right be restricted to the personal liability of the garnishee, as he might be insolvent or unable to pay the value of the property. We hold, therefore, that garnishment is an attachment of the goods in the hands of the garnishee, and that such goods are not subject to levy and sale upon process thereafter levied, during the continuance of said attachment.

In this case it is alleged in the petition that a number of executions had been levied by the defendants upon executions issued on judgments against Duke, and that a sale thereunder would defeat the plaintiff's claims. In such a case, while the the plaintiffs have a remedy at law by bringing separate actions against the defendants, still it would not be adequate. An action in equity, therefore, is the proper remedy to prevent a multiplicity of suits, and determine the priorities of the several liens of the parties.

Section 213 of the code provides that "the court, or any judge thereof during vacation, may, on the application of the plaintiff, and on good cause shown, appoint a receiver, who shall take an oath faithfully to discharge his duty, and shall give an undertaking to the state of Nebraska, in such sum as the court or judge may direct, and with such security as shall be approved by the clerk of the court, for the faithful performance of his duty as such receiver, and to pay over all money and account for all property which may come into his hands by virtue of his appointment, at such times and in such manner as the court may direct."

Section 214 provides that "such receiver shall take possession of all notes, bills, books of account, accounts, and all other evidences of debt that have been taken by the sheriff or other officers as the property of the defendant in attachment, and shall proceed to settle and collect the same. For that purpose he may commence and maintain actions in his own name as such receiver; but in such actions no right of defense shall be impaired or affected."

These sections apply alone to property taken under an attachment. Where the garnishee abandons the property, however, as is alleged in the petition in this case, there is no doubt of the power of the court to appoint a suitable person to take charge of the same. The court possesses this power independently of the statute. The property being a trust fund for the satisfaction of the judgment, the court may, when necessary for the preservation of the property, appoint a trustee to take charge of the same. If any party desire a receiver under the general law, the court no doubt in a proper case would appoint one. But that question does not arise here. There is no error in the record, and the judgment is affirmed.

SERVICE OF PROCESS OF GARNISHMENT DOES NOT CREATE A SPECIFIC LIEN in favor of the plaintiff upon the property of the defendant in the hands of the garnishee: McGarry v. Lewis Coal Co., 93 Mo. 237; 3 Am. St. Rep. 522. Compare Rinchey v. Stryker, 28 N. Y. 45; 84 Am. Dec. 324, note; Cottrell v. Varnum, 5 Ala. 229; 39 Am. Dec. 323.

GAYER V. PARKER.

[24 NEBRASKA, 643.]

TEST WHETHER FORMER JUDGMENT IS A BAR generally is, whether or not the same evidence will sustain both the present and the former action; if different proofs are required to sustain the two actions, a judgment in one is no bar to the other.

Pemberton and Bush, for the plaintiff in error.

Hazlett and Bates, for the defendants in error.

MAXWELL, J. In the year 1883, one A. N. Wiswell procured from the defendants twelve thousand feet of fencing lumber, and other material, all being of the value of $260. The testimony shows that Wiswell desired the lumber for a temporary purpose, and had an option either to purchase it at a price stated, or return the material to the defendants, and pay them