that it had been used in many places about the works, and was an old chain. He says the chain looked well enough to him, though he never examined it until after the accident; that he never received any orders from the master mechanic or from the foreman of the machine shop to inspect it; and that it was not his duty to inspect it, or any of the machines. He, however, did keep his own tools in repair. He says he did not know much about chains, but that this defect could have been easily detected by a competent inspector. His cross-examination tends strongly to show that he was as competent to inspect the chain as any one could be. Indeed, he says he thinks he would have thrown the whole chain away as unfit for use had he examined it just before the accident. He says, before swinging the 18foot iron shaft around from the forge to the anvil to cut in two, he caused a bar to be placed from the forge to the anvil; that he did this because the shaft was so heavy, he was afraid the whole crane might give way; that this bar was not used after the shaft had been cut in two; that this was the heaviest piece of metal he had ever handled with the crane; and that he supposes trusses could have been used, instead of the crane. It appears from the testimony of the witnesses called by the defendant that cranes with chains were used in the casting hall, and that they were inspected by a man employed for that purpose, but it does not appear that this person ever inspected the crane in the blacksmith shop. The evidence of Prentice, foreman of the machine shop, is that he caused machinery to be repaired when reported to him as out of order; that he often gave plaintiff orders for work. Prentice occupied a position subordinate to Seddin, the master mechanic. Seddin testified on cross-examination that it was his duty to exercise a general supervision over all the machinery in the factory, including the machine shop and the blacksmith shop and the foundry, and to see that it was kept in repair; and that the plaintiff was subordinate to him. He says he never gave the plaintiff any instructions as to what his duties were, and never directed him or any other person to inspect the crane in the blacksmith shop. He saw it and the chain, but did not see or know of any defect. Prentice was present when the shaft was cut in two, and aided in that work. Indeed, he directed the plaintiff to make the dies out of this particular shaft.

The court, of its own motion, gave the following instruction: "If you believe said link broke by reason of its having become fractured, corroded, and impaired by exposure and time, after it was provided by the defendant as aforesaid; that defendant knew, or by the exercise of reasonable care might have known, of the alleged defects in said link; and that plaintiff was not guilty of negligence in handling the shaft, but was

at the time exercising reasonable care and prudence in handling the same,-then you should find a verdict for the plaintiff, unless you should further find and believe from the evidence that the plaintiff knew of the defects in said link, or by the exercise of reasonable care might have known of them." "Unless plaintiff was employed by defendant as foreman of its blacksmith shop, and was given the supervision of the same, together with the appliances therein, and it was his duty, by virtue of his employment as foreman of said shop, according to the regulations and course of business of defendant, to see that all the tools and appliances were kept in repair, or report all needed repairs to his superiors, he would not be required to inspect said chain for the purpose of discovering any such defects or impairments which might be therein not observable by a reasonable, careful, prudent man while using or handling the same." "You are also instructed that if you believe and find from the testimony in this cause that plaintiff was employed by defendant as foreman of its blacksmith shop, and that plaintiff asked defendant to erect in his shop the said crane, and that plaintiff was given the supervision of said shop, and that it was his duty, by virtue of his employment as foreman of said shop, according to the regulations and course of business of defendant, to see that all the tools and appliances used by him in his shop were kept in repair, or report the same when out of repair to his superiors, then the plaintiff cannot recover; or if you should find from the evidence that the crane was not furnished by the defendant to be used in the handling of as heavy a piece of metal as the steel shaft mentioned in the evidence, and that plaintiff, knowing this, negligently put said shaft in the chain attachment to said crane, by which the chain was broken, then, and in that event, plaintiff cannot recover in this action."

1. The master, in procuring machinery and appliances, must use reasonable care and precaution to see that they are safe and fit for the designed use; and he must use like care and precaution to see that they are kept in good order and condition. If the master does not know of the defect, and reasonable care on his part would not have disclosed it, he is not liable; but, if reasonable care would have disclosed it, then he is liable, though it was not known to him. Porter v. Railroad Co., 71 Mo. 71; Bowen v. Railroad Co., 95 Mo. 276, 8 S. W. 230. The fact that the master and the servant have equal opportunities to discover the defect will not defeat a recovery by the servant, if the defect was unknown to the servant, and the ordinary and careful use of the machine or appliance would not have revealed the defect; and this for the reason that it is not the duty of the servant to look out for defects, save such as are open to his observation in the ordinary use of the machine or appliance.

Gutridge v. Railroad Co., 105 Mo. 526, 16 S. W. 943; O'Mellia v. Railroad Co., 115 Mo. 217, 21 S. W. 503. Now, there is much evidence tending to show that this chain was old, cracked, and unfit for use at the forge. There is also evidence tending to show that the defect was one which would not be discovered by simply using it, but that it could and would have been discovered by an examination made by a competent person, and that no such examination was ever made. The case was therefore one for the application of the principles of law before stated, and they are set forth in the instructions given. Cases are cited where servants have been held bound to see that instruments placed in their hands are fit for use, and the principle may be correct as applied to simple instruments or tools, like a spade, hoe, hammer, or sledge; but we think this crane, with its various appliances, presents a very dif ferent case. But it is said it was the duty of the plaintiff to inspect the chain for the purpose of discovering defects, if any there were. If it was his duty to inspect it, he ought not to recover, for in that event the injury was the result of his own negligence. Whether he was bound to look for defects, other than those open to his observation in the prudent use of the appliance, was a question of fact, and was properly submitted to the jury. Surely, we cannot say, as a matter of law, that it was the duty of the plaintiff to inspect the chain. If it was, it was also his duty to inspect each and every part of the crane. The question whether the plaintiff should have examined the chain for defects not observable in the prudent use of it was one for the jury. It is earnestly argued that plaintiff was negligent in attempting to handle so large a shaft by the use of the crane, and that he was negligent in standing so close to the shaft. It is no doubt true that he could have discarded the crane in the instance in question, and used trusses; but it does not follow that he was, as a matter of law, guilty of negligence in using it. The question whether he was guilty of negligence in using this crane on the occasion in question, or in standing close to the shaft, were questions of fact for the consideration of the jury. The questions of negligence on the part of the defendant, and of contributory negligence on the part of the plaintiff, were fully and properly stated in the instructions given; so that we need not stop to consider the refused instructions.

2. The further contention that the injury was caused by one of those risks assumed by the plaintiff when he entered the employment of the defendant cannot be sustained. The risks assumed by servants do not include those which arise from the failure of the master to perform duties which are personal to him, and it is the personal duty of the master to use due and reasonable care in providing appliances, and in keeping them

in repair and fit for use. Henry v. Railroad Co., 109 Mo. 493, 19 S. W. 239.

3. There is no doubt but the plaintiff was the foreman of the blacksmith shop, and, as such, had charge of the various jobs of work sent to him. He also had control of his help.

ers.

Though a foreman, and to a limited extent the defendant's vice principal, still he was the servant of the defendant. The fact that he was such foreman does not defeat his action to recover for injuries sustained by reason of defective appliances, unless it was his duty to see that the appliances were kept in order; and we have seen that this was a question of fact in this case, and not one of law.

4. The evidence bearing upon the objection that the damages are excessive is to the following effect: On the first trial, plaintiff recovered judgment for $15,000. At the trial now under review, it being the second one, the plaintiff obtained a verdict and judgment in the sum of $8,666. According to the plaintiff's evidence, the bones of his ankle were broken. He was confined to his house three or four weeks. After that, he used crutches for five or six months. He then, and down to the date of the last trial, used an apparatus consisting of iron braces and a cork-bottom shoe. At the time of the accident, he was earning from $75 to $90 per month. He lost seven or eight months' time. At the expiration of that time, he began work at another place, and earned from $30 to $40 per month; and, at the date of the last trial, he was earning $2.70 per day, and as much as $18 per week when he worked extra time. Dr. Cristoff examined the ankle while plaintiff was yet on crutches. He found a fracture of the inside bone, and the foot turned outward. Dr. Carson examined the plaintiff shortly before the last trial. He says he found a thickening of one bone, but he was unable to say whether it had been a fracture; says the bones were all in proper place. He found indications of a bruise, and the foot was drawn in by muscular contraction, so that less than half of the sole of the foot rested on the floor. He says the injury impairs the strength of the leg, and the chances are that the injury is permanent. From this evidence, it appears that the strength of the plaintiff's leg is in all probability permanently impaired; but he has not lost the use of it, and he appears to be able to earn as much as he did before the accident. It does not appear that he incurred any expenses in and about being cured. He was attended by the defendant's physician. We cannot escape the conclusion that the judgment for $8,666 is excessive. Counsel for the defendant insist that the judgment should be reversed, though the plaintiff may be willing to remit the excess. To this proposition we do not agree. That the court has the power to say a given verdict is excessive is conceded on all hands, and, if it has such

power, it can say what amount will not be excessive. Aside from the excessive damages, there is no error in the record; nor is here anything in the record tending to show that the finding for the plaintiff was in any way brought about by prejudice or passion on the part of the jury. Under these circumstances, this court will indicate an amount which, in its judgment, will not be excessive, and allow the plaintiff to take an affirmance for that amount, or submit to a reversal of of the judgment and remanding of the cause, as he may elect. Burdict v. Railway Co. (in banc) 27 S. W. 453. If the plaintiff shall remit $3,666 within 20 days from this date, the judgment will be affirmed for the residue; otherwise the judgment will be reversed, and cause remanded. The costs of this appeal will be taxed against the respondent. All concur, except BARCLAY, J., who dissents.

1. The judgment of the probate court on the final settlement of the administrator's accounts is conclusive only as to matters actually adjudicated by the court, and matters not thus included may be adjudicated in an action to set aside the settlement on the ground of fraud.

2. Where deceased's widow is administratrix, and dower has not been assigned her, the right to the rents and profits of the land cannot be adjudicated in an action to set aside her final settlement for fraud, though they were not mentioned in such settlement.

3. Where a dwelling house is destroyed by a cyclone, in which the head of the family is killed, the widow is not personally chargeable with $240 expended for work and materials for a new dwelling on deceased's land, since she has a right to remain on the farm during the continuance of her quarantine, and she and her children are entitled to shelter.

4. An action by an heir against an administratrix and the sureties on her bond, to recover the proceeds of a sale of stock on hand when the intestate died, and which were not reported to the probate court, and did not enter into her final settlement, is not barred until ten years after such settlement, though plaintiff arrived at his majority five years after the settlement.

Appeal from circuit court, Gentry county; Charles H. S. Goodman, Judge.

Action by Robert C. Nelson against Ann Barnett and others to set aside the final settlement of defendant Barnett, as administratrix of the estate of Robert C. Nelson, Sr., deceased. From the decree entered, plaintiff appeals. Affirmed.

By this equitable proceeding, plaintiff sought to set aside, on the ground of fraud, the final settlement of his mother, Ann Barnett (formerly Nelson), as administratrix of the estate of his father, Robert C. Nelson, Sr., deceased. It appeared at the hearing

that an error had crept into the final settlement to the extent of $400, and, this being admitted, the court, in its decree, corrected this error, by surcharging the defendant administratrix with that amount on account of the admitted error, and found the other issues for the defendants, and assessed part of the costs against each of the parties. The decree thus entered, from which plaintiff appeals, is the following: "Now, at this day, this cause coming on to be further heard, and was argued by counsel, and the defendants having stated in open court and admitted by their counsel that the sum of four hundred dollars charged against the estate of Robert C. Nelson, deceased, as the absolute property of the widow, by the defendant Ann Barnett, then Ann Nelson, administratrix of said estate, in her final settlement of said estate, filed in and approved by the probate court of this county on the 14th day of May, 1885, and mentioned in the petition, was so charged by mistake, having already been charged in another item, it is ordered by the court that plaintiff have leave to amend his petition, setting up such fact as ground for relief, which is done; and thereupon, upon consideration thereof, and of all and singular the matters and things in the pleadings and evidence set forth and contained, it is ordered, adjudged, and decreed by the court that the said sum of four hundred dollars be, and the same is hereby, surcharged against the said defendant upon said settlement as of the said 14th day of May, 1885, the date of the making and filing of said final settlement, and of the judgment of said probate court of Gentry county, Missouri, approving the same; so that the balance due to the said defendant Ann Barnett, late administratrix, thereon at said date is and shall be the sum of eight hundred and ninety-six dollars and sixty cents ($896.60), instead of the sum of one thousand two hundred and ninety-six dollars and sixty cents ($1,296.60), as set forth in said settlement and judgment of the probate court; and the court finds all the other issues for the defendants. It is thereupon ordered and adjudged by the court that the defendants recover of the plaintiff the costs of witnesses, one day, and mileage, attending court the 12th day of September, 1890, the date plaintiff amended his petition, and that execution issue therefor; and that the defendants recover of the plaintiff all other costs in this behalf expended, and that execution issue therefor."

H. S. Kelley and J. W. Sullinger, for appellant. McCullough & Peery and S. S. Brown, for respondents.

SHERWOOD, J. (after stating the facts). 1. The final settlement of an administrator stands as firmly on an impregnable basis of conclusiveness as does the judgment of any

other court, and cannot be impeached except on the ground of fraud in the very act of procuring the judgment, or, as it is sometimes expressed, in the "concoction" of the judgment. McClanahan v. West, 100 Mo., loc. cit. 320, 13 S. W. 674, and cases cited; Nichols v. Stevens (decided present term) 25 S. W. 578. This has been the uniform ruling in respect of final settlements of probate courts in this state. Jones v. Brinker, 20 Mo. 87; State v. Roland, 23 Mo. 95; Barton v. Barton, 35 Mo. 158; Picot v. Bates, 47 Mo. 390; Oldham v. Trimble, 15 Mo. 225; Woodworth v. Woodworth, 70 Mo. 601; Lewis v. Williams, 54 Mo. 200; Smith v. Sims, 77 Mo. 272; Sheetz v. Kirtley, 62 Mo. 417; Miller v. Major, 67 Mo. 247; State v. Gray, 106 Mo. 526, 17 S. W. 500; and numerous other cases. And resort cannot be had to a court of equity to grant a new trial, and permit the reagitation of matters which have already been adjudicated. Murphy v. De France, 101 Mo. 151, 13 S. W. 756. And it is well settled that the procurement of merely illegal allowances, or the omission of proper debits in the account presented for a final settlement, will not render such settlement vulnerable to attack in a court of equity on the ground of fraud. Nothing presented by the facts in this case brings it within the operation of the rule heretofore noted.

2. But a judgment of a probate court on a final settlement of an administrator is, of course, conclusive only as to matters therein embraced. In order that any matter can be said to have passed in rem judicatam, it must have been tried and adjudicated by the court. 2 Woerner, Adm'n, § 506, and cases cited. And it has been determined in this state that parol evidence may be introduced to show that certain matters, as to which the record is silent, were not passed on in a judgment of allowance in a probate court. Sweet v. Maupin, 65 Mo. 65; Id., 47 Mo. 323. Like rulings have frequently been made as to judgments of circuit courts. Bell v. Hoaghland, 15 Mo. 360; Clemens v. Murphy, 40 Mo. 121; Wright v. Salisbury, 46 Mo. 26; Wells v. Moore, 49 Mo. 229; Spradling v. Conway, 51 Mo. 51. See, also, Freem. Judgm. §§ 273, 274, and cases cited; Packet Co. v. Sickles, 24 How. 333; Id., 5 Wall. 580. In this case it seems there are matters which were not embraced in the final settlement. If this is true, then, of course, the matters thus nonincluded, not having been tried and adjudicated, are still open for trial and adjudication, and as to them the final settlement constitutes no adjudicatory barrier. See authorities last aforesaid.

3. But in this category will not be included the rents and profits of the land, the widow's dower not having been assigned, and her quarantine remaining therefore intact (Gentry v. Gentry [decided at this term) 26 S. W. 1090, and cases cited); and this is true notwithstanding such rents and profits

were not mentioned in the final settlement made. As to the materials and carpenter work, costing something like $240, these items were included in the final settlement, and therefore cannot now be questioned. But they cannot be questioned for a reason equally as valid. The dwelling house on the farm had been swept away by a cyclone, in which the father and head of the family perished. The widow and children were entitled to a shelter while she and her children remained on the farm. She having the right to remain on the farm during the continuance of her quarantine, we regard the comparatively small expenditure used to build a small dwelling house as, under the circumstances, a legitimate one, and properly allowed by the probate court; equally as legitimate as if, instead of destroying the house, the cyclone had simply taken off the roof, in which case it would seem that it could scarcely be doubted that the right to repair or renew the roof would be a reasonable and proper expense, subject to the approval of the probate court.

4. The final settlement in this case was made in 1885, and the plaintiff attained his majority on the 28th of September, 1890. Under our rulings, the statute of limitations does not run in favor of an administrator on his bond until 10 years after his final settlement. State v. St. Genome, 8 Mo. 286; State v. Blackwell, 20 Mo. 97; State v. St. Gemme, 31 Mo. 230. This being the case. if it be clearly made to appear that certain items, to wit, the proceeds arising from the sale of the stock on hand, were not reported to the probate court, and did not enter into the final settlement of the administratrix, the right of action of plaintiff is not yet barred, nor is he debarred by this proceeding. For the reasons aforesaid, the decree is affirmed. All concur.

CLINKINGBEARD v. CITY OF ST. JOSEPH.

(Supreme Court of Missouri, Division No. 2. June 12, 1894.)

CITIES CHANGE OF STREET GRADE-DAMAGES.

A city is not liable for damages from a change of grade of a street to improvements put on the property of an abutting owner after such grade had been established, but only for damages to the property, irrespective of the improvements. Davis v. Railway Co. (Mo. Sup.) 24 S. W. 777, followed.

Appeal from circuit court, Buchanan county; Henry M. Ramey, Judge.

Action by Maggie S. Clinkingbeard against the city of St. Joseph. From a judgment for plaintiff. defendant appeals. Reversed.

Huston & Parrish, for appellant. Vinton Pike and Willard P. Hall, for respondent.

SHERWOOD, J. Action against the defedant city for damages caused by the grad

ing of a street in front of plaintiff's property, the building on which was erected after the grade of the street was established by the city. This case falls within the rule announced in Davis v. Railway Co. (Mo. Sup.) 24 S. W. 777, in which it was held that liability for damages did not extend to injury for improvements put on the lot after the grade was established, but was confined to damage done to the lot, without reference to such improvements. Adhering to the rule announced in that case, we reverse the judgment, and remand the cause. All concur.

TUFTS v. VOLKENING. (Supreme Court of Missouri, Division No. 2. June 12, 1894.)

ATTACHMENT

CORPORATE STOCK OF NONRESIDENT-AFFIDAVIT-PUBLICATION OF NOTICE. 1. In attachment against a nonresident, the court can order the publication of notice to defendant before his property has been seized under the attachment.

2. The interest of a person in shares of stock may be attached though the shares stand on the books in the name of another.

3. Rev. St. 1889, § 521, makes the nonresidence of defendant a ground for the issuance of a writ of attachment; section 526 provides that the affiant shall state that he "has good reason to believe, and does believe, in the existence of one of the grounds." Held, that an affidavit which alleges that affiant "has good reason to believe, and does believe, that the defendant is not a resident of this state," is sufficient.

Error to St. Louis circuit court.

Attachment by James W. Tufts against Max Volkening. There was a judgment for plaintiff, and defendant brings error. Affirmed.

H. W. Adams and E. W. Banister, for plaintiff in error. Geo. W. Taussig, for defendant in error.

SHERWOOD, J. This cause, reported 51 Mo. App. 7, and transferred to this court by the St. Louis court of appeals, is an action on an account for balance due on a "soda fountain." The suit was begun by attachment April 11, 1892, and on the same day garnishment proceedings were instituted, and on the same day properly served on several garnishees, to wit, William Schreiber, William Schreiber, executor of Henry Volkening, and the St. Louis Railroad Company. Said garnishees were duly served according to law, and all the requisites were duly complied with, by the sheriff, to attach in their hands the goods, moneys, effects, rights, credits, benefits, choses in action, and evidences of debt, or so much thereof as would be sufficient to satisfy the debt, interest, and costs in said suit, and said garnishees were duly summoned to appear at the June term, beginning first Monday of June. On April 22d, after the service of the writs of garnishment, an order of publication was applied for, and on the same day the court ordered the de

fendant to be notified by publication of the commencement of the action, and that this property had been attached, which was done in the manner prescribed by law. The order of publication was inserted as required by law, the first publication appearing April 23d. On April 26th, by virtue of the same writ of attachment under which the garnishees had been summoned, the sheriff levied upon and attached the interest in 10 shares of stock of the St. Louis Railroad Company. The re turn of the sheriff is the following: "Executed this writ in the city of St. Louis, Mo.. on the 26th day of April, 1892, by levying upon and seizing all the right, title, claim, and interest of Max Volkening, the within-named defendant, of, in, and to ten shares of the capital stock of the St. Louis Railroad Company, the same being part of a larger number of shares on the books of said company in the name of Henry Volkening, represented by certificate No. -, issued by said railroad company in the name of Henry Volkening; and at the same time leaving with R. B. Jennings, secretary of the said St. Louis Railroad Company, a true copy of the writ, with my attested certificate thereon indorsed that I did levy upon and take such rights and shares to satisfy this writ. Said defendant cannot be found in the city of St. Louis. St. Louis, Mo., June 4, 1892. Patrick M. Staed, Sheriff, by Louis Holy, Deputy." On June 9th, default was taken against defendant, and on June 21, 1892, defendant still not appearing, final judgment was entered "that the plaintiff recover of said defendant the damages assessed, and his costs and charges herein, and have execution therefor against the property attached herein at the commencement of this suit." Among the grounds for attachment, and on which the order of publication was made, was the allegation that the affiant "has good reason to believe, and does believe, that the defendant is not a resiIdent of this state." The judgment being by default, no bill of exceptions was preserved. and the cause went on error to the St. Louis court of appeals, to be decided on the record proper. There the judgment on circuit was affirmed.

1. The affidavit is unobjectionable in form, and is, indeed, in exact compliance with the statute. Nonresidency is the first ground for attachment prescribed by the statute (Rev. St. 1889, § 521), and a subsequent section (526) declares that the affidavit of the affiant, among other things, shall state "that he has good reason to believe, and does believe, in the existence of one or more of the causes, which according to the provisions of section 521 of this chapter would entitle the plaintiff to sue by attachment."

2. The main question, however, which caused the transfer of this cause to this court, is whether the circuit court had jurisdiction to order publication to be made prior to the attachment of the property ordered to be sold to satisfy the judgment. The ob