Rensselaer Republican, Volume 21, Number 22, Rensselaer, Jasper County, 31 January 1889 — MATTERS OF LAW. [ARTICLE]

MATTERS OF LAW.

Recent Decisions of the Indians. Supreme Court. Damages may be recovered for an injury inflicted on Snnday by the negligence of the defendant, although the injured person was working on Sunday, in violation of thq law on tfrat subject. This rale is applied in this case to a brakeman on a railroad train. A railroad company is liable for an injury to a brakeman caused by requiring him to use machinery which it knew to be defective, but of the defective condition of which the employe had no knowledge, and could have nonq except by taking unnsual and extraordinary precautions. This rale is applied to an injury caused while coupling cars by a defective brakebeam, the condition of which the brakeman could only Bes by stooping down and looking under the car. Declarations which were the natural emanations or outgrowths of the act or occurrence in litigation, although not precisely concurrent in point of time, if they were yet voluntary and spontaneously made so nearly contemporaneous as to be in the presence of the transaction which f!hey illustrate and explain and were made under snch circumstances as necessarily to exclude the idea of design or deliberation, are admissible as part of the res gestae. In this case the declarations, which are held admissible, were made within two minutes of the injury and in responee to a question as to how the injury happened. (1) An award which is good upon its face can not be impeached except for causes enumerated in Section 845, R. S. 1881, (2) The Court, when it is sought to have judgment rendered upon an awaH, can not hear extrinsic evidence as to the merits of the case or the justice of the award, or inquire as to whether the arbitrators decided according to the weight of the evidence or observed strictly to the technical rales of law in hearing or refusing to hear the evidence, but it may near evidence pertinent to the statutory grounds of objection. (3) Where the trial court hears affidavits and counter affidavits upon a question triable by it) and thus makes a decision upon conflicting evidence, the Supreme Court will not review the decision. (4) In the consideration of a motion to modify or correct an award, under Section 846 R. S. 1881, the Court will be limited to what appears upon t the face of the submission and the award. Appellees complaint charges that he is the owner of lot 68 in the town of Rushville, on which he resides and has resided with his family for many years tbat the appellant is the owner of lot 67, adjoining lot 68, and twenty-eight feet distant from appellee’s res dence; that on appellant’s lot there is a frame Bhop which appellant and another are converting into a public blacksmith shop, for the purpose of shoeing horses and doing a general blacksmithing business; that such business will greatly interfere with the comfortable enjoyment of appellee’s property, etc., wherefore he asks that the defendants may be enjoined form erectihg, maintaining and using the building as a blacksmith shop. Held: That the complaint is bad, it not being made to appear therein that the defendants threaten and intend- to conduct the business—in itself legitimatein such a qaanner as to constitute a nuisance, i An assignee, believing that certain lands conveyed to him by the debtor possessed a value above the amount 'of a mortgage lien thereon, and being notified by the mortgagee that a part of the mortgage was due and foreclosure imminent, to se&ure time within which to make an effort to sell the land paid the mortgagee all the interest and a part of the principal due on his mortgage out of the trust funds in his hands, the mortgagee agreeing to repay* the same on demand of the assignee if the court or general creditors should not sanction the payment. The mortgage was subsequently foreclosed and nothing was realized for the several creditors. Action by the assignee to recover the amount so paid, the complaint allegin g the facts stated. The sureties on this assignee’s bond, on their application, were made parties, and plaintiffs filed a complaint alleging that the creditors had obtained judgment upon the assignee’s bond partly for the breach of duty represented by such payment and that they had been compelled to pay the judgment, therefore they asked to be subrogated to the rights of the assignee and creditors as against the aljresaid mortgagee. Held: That the mortgagee must repay the moiiery so paid to him. Held, also. That the sureties are entitled to be subrogated. Held, also: That there was not , : an improper joinder of parties plaintiffs, and that a joint jndgment in favor of plaintiffs was proper.