ceedings in bankruptcy did not devest the jurisdiction of the circuit court to enforce the rights which had accrued to plaintiff by these garnishment proceedings. Gluck & B. Rec. 30, p. 66; Heidritter v. Oil Cloth Co., 112 U. S. 294, 5 Sup. Ct. 135, 28 L. Ed. 729. While it is objected for the first time in the motion in arrest that the court did not obtain jurisdiction over the garnishees and the subject-matter of the action, we think the point is not well taken. It is true that, when goods and chattels belonging to the defendant are to be attached, the officer shall take them into his possession, if accessible, and, if not accessible, he shall declare to the person in possession thereof that he attaches the same in his hands, and summons such person as garnishee (subdivision 4, § 388. Rev. St. 1899); but we think the return of the officer in this case was substantially what the statute requires. He returns that he delivered a copy of the summons of garnishment, marked "Exhibit A," in Jackson county, Mo., on June 23, 1894, to Lamon D. H. Russell, which copy he makes a part of his return. In that written notice he notified (i. e., “declared to") said garnishees that he attached in their hands all debts due by them to the defendant E. Hart, together with all personal property, money, etc. The mere fact that he did not repeat the formula again in his return, but made it a part of his return. does not vitiate it in the least. The return is not open to the criticism made in the various cases cited from this state. There is nothing in the statute which makes a written declaration of less efficacy than an oral declaration. The effect of the written notice, by our statute, was to attach all the personal property, etc., of the defendant in the garnishee's possession. Section 3436, Rev. St. 1899. By that service of the writ of attachment, the plaintiffs, while not obtaining a full and clear lien upon the specific property in their hands as against third persons, did obtain such a lien as against garnishees as gave plaintiffs the right to hold the garnishees personally liable for its value. Drake, Attachm. (4th Ed.) § 453; McGarry v. Coal Co., 93 Mo. 241, 6 S. W. 81, 3 Am. St. Rep. 522; Johnson v. Foster (Ark.) 65 S. W. 105. And as already said, this lien was not devested by the subsequent proceeding adjudging Hart a bankrupt, or his discharge. Bankr. Act July 1, 1898 (30 U. S. Stat. c. 541, § 67, par. "c"). It follows that the motion to discharge the garnishees because of the bankruptcy of Hart must be denied. 3. There is no merit in the point that Harkness was not served. His partner, who had all the property in his possession, was served; and Harkness voluntarily entered his appearance, and throughout the proceedings made common cause with his copartner, who had been served; but he was absent in Europe all the time, and could not be served. By the service of the notice of garnishment upon the partner who had the posses sion of the goods within the jurisdiction of the court, the court obtained jurisdiction of the res, and it was entirely competent for Harkness to waive the summons and give jurisdiction over himself personally. Fletcher v. Wear, 81 Mo. 530; Scott v. Hill, 3 Mo. 88, 22 Am. Dec. 462; Coffin Co. v. Rubelman, 15 Mo. App. 280. 4. It is assigned as error that the court erred in admitting the testimony of Diamond as to certain statements of Russell, one of the garnishees, as to the rate of interest which his firm charged Hart on the loans secured by the pledge or chattel mortgage under which they claimed the personal property which plaintiffs seek to subject to their debt against Hart by the garnishment proceeding. It appears that in the original attachment suit against Hart notice was given by plaintiffs to take depositions, and Russell was summoned and testified before Diamond, who was the notary. By agreement the testimony was taken in shorthand, and, when written out, was handed to Russell to sign. He took it and made many interlineations, and then had his own stenographer copy it, and then signed it. Diamond refused to certify it in this shape, but made a longhand copy of his stenographic notes, and filed that as the deposition. This last paper was lost without fault of plaintiffs, and on the trial they proved the loss, and then offered proof of a declaration by Russell at the time of the taking of the depositions that Russell said they charged Hart 2 per cent. a month on all loans made by their firm to him. To this garnishees objected because they insisted that the deposition filed by Russell after he had corrected it contained his statement on that subject, and could not be contradicted by Diamond. The offer was to prove an admission by an adverse party to the suit, and we think it was competent, and no error was committed in admitting it. Bogie v. Nolan, 96 Mo. 90, 91, 9 S. W. 14. 5. Again, error is predicated on the refusal of the peremptory instruction asked by garnishees for a verdict in their favor. Two propositions are advanced to support this assignment: First, that plaintiffs could not attack the validity of the collateral note held by the garnishees, for usury; second, by refusing this instruction this court gave a retroactive effect to the usury law of 1891, in violation of section 15 of the bill of rights of 1875. The first of these contentions is based upon the assumption that an attaching creditor proceeding by garnishment is a stranger, and cannot attack a pledge for usury, or, at best, is only a general creditor, and as such cannot invoke section 3710, Rev. St. 1899. That section is in these words: "Sec. 3710. In actions for the enforcement of liens upon personal property pledged or mortgaged to secure indebtedness, or to maintain or secure possession of property so pledged or mort gaged, or in any other case when the valid In ity of such lien is drawn in question, proof The usury act took effect April 21st, 1891. upon trial that the party holding or claiming to hold any such lien has received or exacted usurious interest for such indebtedness shall render any mortgage or pledge of personal property or any lien whatsoever thereon given to secure such indebtedness invalid and illegal." The usury does not extinguish the debt, but the statute destroys the lien or mortgage given to secure it. Clothing Co. v. Corl, 155 Mo. 149, 55 S. W. 1017. Rubber Co. v. Wilson, 55 Mo. App. 656, it was first ruled that an attaching creditor stood in such privity with the mortgagor in a mortgage to secure an indebtedness tainted with usury that he could attack the same for usury. That ruling was approved and adopted by this court in Coleman v. Cole, 158 Mo. 253, 59 S. W. 106, in which it was said, "The plea of usury is a privilege personal to the debtor, or his privies in blood, contract, or representation; and an attaching creditor of the mortgagor is a privy in representation with the mortgagor, and hence can interpose the defense." With these decisions confronting them, garnishees concede that when the sheriff actually takes the mortgaged property into his possession, by seizing it under the writ, the creditor may avail himself of the usury to defeat the mortgage; but they contend that an attaching creditor who attaches the property in the hands of the usurious mortgagee or pledgee stands in the position of a mere stranger, or at most a general creditor, and has no such right. The distinction is not sound. When the sheriff served the notice of garnishment on garnishees that he attached in their hands all property belonging to defendant, the process of enforcing the attachment against the mortgaged property was begun, and plaintiff stood, as to the garnishees, lienors on that property, albeit it was not a lien upon specific property, but still such a lien as gave them a right to hold garnishees personally liable for it or its value. McGarry v. Coal Co., 93 Mo. 241, 6 S. W. 81, 3 Am. St. Rep. 522. And no sound reason can be given why an attaching creditor who has fastened his attachment upon property in the hands of a usurious pledgee or mortgagee by a proper service of garnishment, and declaring to him that he attached in his hands the property of defendant, should not have the same right to attack a mortgage for usury as one who succeeded in having the sheriff actually seize it. We cannot assent to the proposition that such an attaching creditor is no more than a stranger to such usurious mortgage, or is only a general creditor. He has rights superior to either, and, we think, falls within the protection of the statute. Did the court give the statute a retroactive effect? This insistence is bottomed upon the claim of counsel that there was no evidence that any usurious interest was paid on the $1,020 note made by Hart and wife to Fred Kast, and by him indorsed to garnishees, after January 1, 1890. They argue, therefore, that conceding usurious interest was paid on this $1,020 before the usury act of 1891 went into effect, but not afterwards, said act cannot apply to mortgages or pledges made after its passage to secure notes upon which usurious interest has been paid previous to its enactment. Their further contention along this line is that as, by the terms of the $1,825 note, it is applicable "to any other note or claim held by the said Harkness & Russell," the collateral described in the $1,825 note was pledged to secure the $1,020 note held by them, and although all the other notes held by garnishees on Hart were tainted with usury, as the evidence amply established, still the pledges would be good as to the $1,020 note, and therefore the collateral was incumbered with a trust, and not subject to garnishment. That the circuit court did not intend to give a retrospective effect to the usury act is plainly deducible from its instructions; for in both plaintiffs' Instruction No. 1 and garnishees' fourth instruction it required the jury to find that the garnishees received or exacted usurious interest on the $1,020 note after June 22, 1891, the date when the usury law went into operation. It is evident that, if such a construction was put upon the act of 1891 as would give it a retroactive effect, it grew out of the mistake of the court that there was evidence that the garnishees had exacted or received usurious interest after the law went into effect, when in fact none was exacted or paid. It will be observed that garnishees submitted to the jury, in their fourth instruction, whether usurious interest was exacted or received after June 22, 1891. Neosho City Water Co. v. City of Neosho, 136 Mo. 507, 38 S. W. 89. While Russell testified at one time that he had not received any usurious interest on the $1,020 note, he admitted that "he probably did, that Hart said he did, and that he afterwards corrected it, or attempted to correct it"; and Diamond testified that he said he charged Hart 2 per cent. per month on all his indebtness, which included this particular note. Again, he says the $1,825 note was made up of interest and charges for services, etc. The jury were the triors of the fact. They were not bound to accept Russell's testimony as true, or to reject Diamond's evidence as false. They heard Russell's effort to explain the entries in his books made in his own handwriting, and, directed as they were to find usury only if they found garnishees had exacted it after June 22, 1891, their verdict must be held to have found they did exact or receive it after June 22, 1891; and, if so, then there was no retroactive effect given to the statute. Their finding is conclusive on this point in an action at law, where there was substantial evidence on which to base it. Particularly is this true in investigating whether a transaction is usurious or not. As said in Kreibohm v. Yancey, 154 Mo. S6, 55 S. W. 266: "The real inquiry in every case is whether there has been a borrowing and lending at a greater rate of interest than the law allows; and this becomes purely a question of fact to be determined by all the circumstances of the particular case. The courts will follow them through all their shifts and devices, and ascertain the true character and design of the transaction." The testimony of Russell lacked that candor and consistency which tends to convince a jury of its credibility. 6. Objection is made to the form of the verdict and judgment, because each item of the jewelry was not separately valued. To obviate the necessity of naming each piece of jewelry in the verdict, counsel on both sides stipulated that it should be sufficient for the jury to designate the goods in the hands of the garnishees as "the diamonds, watches, and jewelry described in the $1,825 note in evidence." Accordingly the court gave the eighth instruction for plaintiffs, as follows: "(8) The court instructs the jury that in this case you have nothing to do with the amount of indebtedness of Hart to plaintiffs, and if you find a verdict for the plaintiffs and against the garnishees, Harkness & Russell, your verdict may be in the following form: 'We, the jury, find the issues for the plaintiffs; and we further find that the garnishees, Harkness & Russell, at the time of the service of the writ of garnishment on them, had in their possession money or property and effects belonging to defendant, Hart, as follows: Diamonds, watches, and jewelry, as described in the $1,825 note in evidence; and the value thereof is $ Foreman.' And if you find for the garnishees, Harkness & Russell, your verdict may be in the following form: 'We, the jury, find the issues in favor of the gar nishees, Harkness & Russell. Foreman.' At the request of garnishees, the court gave the following instruction: "(3) The court instructs the jury that the plaintiffs cannot recover in this action, if at all, except for the market value of the goods pledged as collateral to secure the note for $1,825, dated June 1, 1894, introduced in evidence, as such market value was on June 23, 1894, at the time of the service of this garnishment." Counsel at no time asked for a separate valuation of each article, and the jury returned a verdict for plaintiffs in the form given them by the court, and valued the whole at $3,500. The court ordered all of the said goods and jewelry to be turned into court. Garnishees turned in a part, but failed to turn over the balance; and thereupon the court entered judgment, as provided in section 3452, Rev. St. 1899, against the garnishees for the amount of the judgment against defendant, and directed a sale of the goods turned over to sheriff, and that the proceeds be credited on the execution, and the balance, if any, collected out of the garnishees. We see no objection to the verdict, especially since garnishees made no effort to have a separate valuation of each article. This is a civil case, and it was incumbent on the garnishees to have the separate valuation, if they desired it. As the jury had found these goods were the property of defendant, and subject to the attachment, two courses were open: The garnishees could have turned over all the goods described in the verdict and discharged themselves, or the court could enforce its order, as it did, to which we see no objection, and certainly nothing of which the garnishees can complain. After a full investigation, we find no reversible error, and the judgment is affirmed. SHERWOOD, P. J., and BURGESS, J., concur. CONNOLLY v. ST. JOSEPH PRESS PRINTING CO.1 (Supreme Court of Missouri, Division No. 1. Dec. 17, 1901.) MASTER AND SERVANT-ASSUMED RISK-CON- 1. In an action by an employé for personal injuries the evidence showed that the defect in the machinery by which he was injured was not necessarily obvious to him, and it was not his duty to search for it, and such defect was not manifest to him in the ordinary discharge of his duty; and there was evidence that he did not know of any defect till a week before the accident, when it was repaired, and he was assured by the foreman that the machine was all right. Held it was insufficient to show that he assumed the risk. 2. After repair of machinery and assurance by defendant's foreman that it was all right, plaintiff was not guilty of contributory negli gence in continuing in the performance of his duties. Appeal from circuit court, Buchanan county; A. M. Woodson, Judge. Action by Edward A. Connolly against the St. Joseph Press Printing Company. From a judgment for plaintiff, defendant appeals. Affirmed. Brown & Dolman, for appellant. Thos. F. Ryan and J. W. Boyd, for respondent. BRACE, P. J. This is an appeal by the defendant from a judgment of the Buchanan circuit court in favor of the plaintiff for the sum of $5,000 in an action for personal injuries. The only errors assigned for reversal are the refusal of the court to sustain a demurrer to the evidence and to give two instructions asked for by the defendant. The court gave seven instructions for the defendant, presenting its side of the case very favorably, and it is only necessary to say, in regard to these refused instructions, that they contained nothing to which the defendant was entitled that was not included in the instructions given. The only real question in the case is whether the court erred in submitting the case to the jury. The cause of 1 Rehearing denied January 13, 1902. action stated in the petition is, in substance: "That the defendant owned and operated a printing plant, in which the plaintiff was one of its employés. That among other instruments and machinery used and operated in its business was a machine known as a 'shaver,' with a knife attached to a spindle for trimming and shaving stereotype plates, which had a certain lever and spring, and brake or shoe and grooves, and fasteners or clutches, that acted upon a belt and pulley, and other appliances of said machine, which, when in proper repair and condition, would stop and hold said spindle to which said knife was attached, so that the stereotype plate could be safely removed by the employé in charge. That on and for a long time prior to the 29th of October, 1898, the defendant had negligently permitted this lever, spring, and brake or shoe and the grooves, fasteners, and other appliances to become and remain worn and defective, so that they would not hold the spindle, which would revolve when it ought to remain stationary, which condition had been known to the defendant for months, and was not known to plaintiff. That at said date, and while said machine was in this condition, the plaintiff, in the discharge of his duty as such employé, attempted to take out a plate which had been shaved, when the knife suddenly revolved on account of said defects, cutting off his right hand and two fingers of his left hand." The answer was a general denial, a plea of contributory negligence, and risk assumed. The following picture shows the machine upon which the injury occurred: The bed consists of a sector of something less than half a hollow cylinder about two feet long and one foot internal diameter, lying horizontally on its foundation with the concave surface up. Along the center of the circle of which this concave surface forms a part, and extending the length of the bed, extends a spindle of great diameter bearings at each end, carrying a knife its entire length, and extending out so far from the spindle or shaft that when it revolves the edge of the knife describes a circle about half an inch inside the concave surface of the bed. The stereotype plate is cast about 17 inches wide and 20 inches long, and is curved to nearly a half circle, so that it exactly fits the concave surface of the bed. The operator stands on the side of the machine at the right of the picture, and facing it. He puts the curved plate in the bed of the machine, takes hold of the ring-shaped handle at the end of a long steel bar at his right and pulls it. Two pins are seen on the other end of the bar, one on each side of the belt which comes down from a shaft above. As he pulls out the bar, the farther pin pulls the belt from a loose pulley, on which it seems to be running in the picture, to the tight pulley, which appears naked in the picture. The knife slowly revolves toward him at a speed of about eight revolutions per minute. The edge enters the bed on the side toward him, and passes out on the outer side, shaving the plate as it goes. The instant it leaves the plate on the back side, he shoves in the bar, the handle of which he has been holding, the pin nearest him forces They consist of a belt coming down from its line shaft above so as to pass over two pulleys, a tight and a loose one, situated side by side on a screw shaft, the screw of which engages the teeth of a large gear wheel keyed to the end of the knife shaft, which is out of sight beyond the wheel, and the long horizontal shifting bar, which pushes the belt to the loose pulley to stop the machine, in which position it appears in the picture, and pulls it to the pulley which is keyed tight to the screw shaft to start it. The riveted end of the pin that pushes the belt to the loose pulley can be plainly seen when it passes through the bar at the edge of the belt. The pin which pulls the belt to the tight pulley is hidden by the shadow of the ascending portion of the belt. At the outer end of this lever is shown a horizontal slat passing through it. At the end of this slat nearest the operator appears a vertical lever, near the upper end of which a bolt is fixed, which passes loosely through this slat. Following this lever downward in the picture, we come to its fulcrum, which appears as the riveted head of a pin or bolt, and farther down is the brake shoe, which appears as it presses on the top of the tight pulley. This is for the purpose of stopping the revolution of the screw suddenly, with the same move next the operator is a spring, which continually presses the bar upward against the top of the slot, and on the top of the bar are two notches into which the material at the top of the slot is pressed when the bar reaches the right place in starting and stopping, and which are intended to hold it so that the belt will not shift with its own movement. In starting the machine the operator takes hold of the ring-like handle, presses downward so as to disengage the notch in the top of the bar, and pulls it toward him, pulling the belt to the tight pulley. When the outer end of the horizontal slot in the bar strikes the bolt in the top of the brake lever, it raises the brake from the pulley, and the screw revolves. The other notch in the top of the bar engages itself, and holds it in position when the operator releases it. To stop the machine this operation is reversed. Zumwalt, Snowden, and Shoemaker, stereotypers, who had worked in the defendant's plant, and had served this machine in the same line of duty as did the plaintiff, and who were introduced as witnesses in his behalf, testified that for several years prior to the accident the spindle or shaft carrying the knife would at times revolve when the bar of the shifter was shoved back or in, and the spindle should have been stationary; |