Volume 1 — Puerto Rico Federal Reports

<p>Municipal Consumption Tax — Abmy Post Exchanges.</p> <p>1. The power of a municipality to tax is not inherent in it, and is hy grant only.</p> <p>2. Circular 46, December 20th, 1900, Department of Porto Rico, and which has force of law, exempted the post exchanges from municipal taxes.</p>

<p>Opiniow in Matter oe Contempt.</p> <p>An attorney, when he does not content himself with giving his advice and opinion upon the validity of an order of the court, but urges disobedience and takes part in acts which are forbidden by the order, is himself liable for contempt, alike with his client.</p>

<p>Removal of Causes.</p> <p>1. Section 720, U. S. Rev. Stat. (XJ. S. Comp. Stat. 1901, p. 581), has no application to a case properly removed to the United States court. This court has power to enjoin a party from proceeding further in an insular court after such removal.</p> <p>2. If the case he a removable one, and stands removed by the proper steps, then the jurisdiction of this court over the parties immediately attaches; and it may require either party to do or not to do any act affecting the relief this court may finally afford, and may issue any writ necessary to the exercise of its jurisdiction.</p> <p>3. When the defendant in an action in the insular court which is by law removable to this court files and presents to the former court his petition for a removal containing the necessary jurisdictional averments, and files therewith a proper bond, it is the duty of the insular court to accept the petition and bond, and proceed no further. Any further action by it is coram non judice.</p> <p>4. The insular court has no power to try an issue of fact made by the petition, but may determine whether upon the face of the record a removal has been effected; but even this action of the insular court is reviewable by this court. The decision of the insular court whether case is removable is not binding upon this oourt, and cannot limit its jurisdiction; nor can such jurisdiction be defeated by the refusal of the insular court to act upon the petition.</p> <p>5. Section 2 of the act of August 13, 1888, relating to removals from state courts to United States courts, applies to this court; and a cause cannot be removed from an insular court to this court if it appears from the record that the defendant is a resident of P'orto Rico.</p> <p>6. If the jurisdiction of this court, by removal, be doubtful, it should not be exercised.</p>

<p>Opinion on Motion to Vacate Order foe Contempt.</p> <p>A court has the power to grant a temporary restraining order until it can, upon a proper hearing, determine the question of jurisdiction; and disobedience of such an order is contempt of court, independently of how the court may afterwards decide the. question.</p>

<p>Commercial Paper — Accommodation Maker — Taxation upon Revenue Laws.</p> <p>1. If one be an accommodation maker of a note, then, as between him and the principal, he is but a surety; and this is true as to the creditor, if he knows it.</p> <p>2. If a creditor, by a new agreement upon sufficient consideration, extends time to the principal debtor without the knowledge or assent of the surety or accommodation maker, the latter is thereby released from liability on the note.</p> <p>3. A section of the Political Code of Porto Rico, providing that notes sued upon which have never been listed as provided by the insular revenue law, and upon which no taxes have been paid, shall not be recoverable in any court of the island until these requisites are complied with, does not destroy the validity of the conti-aet, biit merely suspends the remedy. It applies only to the courts of Porto Rico, and not to this court.</p> <p>Bills and notes — accommodation maker as surety. The authorities determining the admissibility of extrinsic evidence to show who is. liable as the maker of a note, and whether one executing a note is liable as surety, and not as maker, are presented and discussed in editorial note to Keidan v. Winegar, 20 L. R. A. 705.</p> <p>Discharge of surety — extension of time — consideration. The question as to whether the fact that the consideration for the extension of time is usurious will vitiate the extension so as to prevent its operating as a discharge of the sureties, is discussed and the authorities .fully presented in editorial note to Fleming v. Borden, 53 L. R. A. 316.</p>

<p>Bill of Review.</p> <p>1. Section 1008, TJ. S. Rev. Stat. (U. S. Comp. Stat. 1901, p. 715), allows two years for filing bills of review.</p> <p>2. A bill of review plainly showing irregularity in former proceedings should be allowed, if filed in time.</p> <p>3. The rule that bills of review should not be entertained until the payment of the judgment is administrative, and not jurisdictional.</p> <p>4. After a pro confesso order is entered, distinct and positive averments of the bill will be taken as true without proof; but, if vague, evidence should be produced. A pro confesso decree should conform to the prayer of the bill.</p>

<p>Criminal Jurisdiction.</p> <p>The alleged crime having been committed during the existence of the military government in Porto Rico, but before the treaty of Paris, which ceded the island to the United States, and before the establishment of the United States provisional court for Porto Rico, and not being contrary to any Spanish law or military order then in force, is not an offense against any law of the United States, and this court has no jurisdiction of it.</p>

<p>lw Equity — Opinion on Demurrer to Biel — Usury—Retrospective Legislation.</p> <p>1. A law is to be construed in its entirety, and the intention of the legislature is to be regarded more than grammatical rules. The usury-law of Porto Rico of March 1st, 1902, does not apply to contracts made prior to its passage.</p> <p>2. Although the Constitution of the United States does not forbid all retrospective legislation, and there is no law in Porto Rieo forbidding it, a law impairing vested rights would, from the very nature and spirit of our government, be void.</p> <p>Constitutional law — vested rights. As to constitutionality of statute impairing vested rights, see editorial note to Fletcher v. Peck, 3 L. ed. U. S. 162.</p>

<p>OPINION.</p> <p>1. The striatum jus is that private movable property on land of an enemy is liable to seizure; this was the former custom, but the modern usage, with some exceptions, is to exempt it.</p> <p>2. It is, however, a rule of international law that the private property of an enemy may be taken and used if necessary, by the war power, without compensation to the owner.</p>

<p>Opinion on Motion foe a Rehearing.</p> <p>1. The signing of the protocol and the proclamation of the President did not end the war with Spain. It ended by the ratification of the treaty of peace by both parties.</p> <p>2. Until such ratification the war power had the right to hold and use, without compensation, the private property of the enemy, which it had seized during the war for necessary use.</p>

<p>Opinion on Motion to File DilatoRY Pijga.</p> <p>1. An action for an accounting lies in a Federal court, but a bill in equity is the usual form.</p> <p>2. Leave should not he given to withdraw a plea to the merits in order to file a dilatory plea, at a late hour in the proceedings.</p> <p>3. A plea in an action at law' to settle the right of the plaintiff, that a suit in equity for an accounting was first pending, is not good, the latter suit having been stayed until the right to an accounting should be settled at law.</p>

<p>Contempt — Injunction—Res Judicata.</p> <p>1. The plaintiff, by a former order of court, was subrogated to the rights of a mortgagee in a mortgage against the defendant, all parties appearing. Later the defendant brought a bill in another court, praying for a decree establishing that the plaintiff was never so subrogated. This proceeding seeks to hold the defendant liable for contempt for so doing.</p> <p>2. The purpose of the first suit, in which all the present parties were represented, was to subrogate the present plaintiff to the rights of the mortgagee, and the judgment followed the prayer and directly adjudicated the mortgage credit. That matter is res judicata.</p> <p>3. A suit questioning the sufficiency of this decree, and even asking to have it set aside, is not a contempt. The violation of the injunctive order would be one.</p>

<p>Attorney’s Fees — Local Libel Law.</p> <p>1. The local statute giving in a libel suit to the defendant, in ease judgment. is rendered in his favor, an attorney’s fee in addition to other costs, is not applicable to the Federal court.</p> <p>2. The meaning of U. S. Rev. Stat. § 823 (LT. S. Comp. Stat. 1901, p. 932), that no other compensation sliail be taxed as an attorney’s fee except as provided in § 824 save where otherwise provided by law, is clearly to be understood as referring to United States law.</p>

<p>InjuRy to Trespasser — Degree of Care Required of One in Danger— Measure of Damages.</p> <p>1. Employees of a railway company have no right wantonly or wilfully to injure a trespasser on the company’s cars or track.</p> <p>2. A person negligently placed in a dangerous position by another is bound- only to exercise such care as a reasonable man would be likely to exercise under such circumstances.</p> <p>3. One injured by doing an act in attempting to escape from a dangerous position can recover against a person who negligently placed him in that position, even if the act was possibly not necessary, but was, under the circumstances, reasonable.</p> <p>4». It is negligence for an employee of a railway company to compel a person to jump from a moving car.</p> <p>5. The jury may, in a case like this one, take into consideration age, condition of health, and earning capacity of plaintiff in fixing the' measure of damages.</p> <p>Railroads personal injimes. The authorities dealing with various phases of the liability of a railroad company for injuries to persons on its tracks are fully presented and discussed in the following editorial notes: Gare required of railroad companies to prevent injuring small children upon the track, note to Bottoms v. Seaboard & R. R. Co. 25 L. R. A. 784; Duty to maintain lookout on railroad trains, note to Smith v. Norfolk & S. R. Co. 25 L. R. A. 287; For whose benefit signals by approaching trains are required by statute at public crossings, note to Lonergan v. Illinois C. R. Co. 17 L. R. A. 254 ; Giving the statutory signals as the measure of trainmen’s duty at highway crossings, note to New York, L. E. & W. R. Co. v. Leamon, 15 L. R. A. 426; Liability for failure to give statutory signals when they would not have prevented the injury, note to Sowles v. Moore, 21 L. R. A. 723; Negligence of railroad company in respect to flying switches or detached cars moving by their own momentum, note to Kentucky C. R. Co. v. Smith, 18 L. R. A. 03.</p>

<p>Opinion on Petition foe.a Writ op Possession.</p> <p>Rule 21 of this court, providing for a hearing after notice, either in term time or vacation, of the right of the purchaser to the possession of real estate sold under execution, applies only to this court, and, in the absence of statutory provision or rule of the late provisional court, should not be applied to sales under judgments of that court.</p>

<p>Support op Illegitimate Child — Railroads—Degree op ' Diligence Required in Their Operation and Providing Appliances.-</p> <p>1. Under the local law there are legitimate children, or those born in lawful wedlock; natural children, or those whose parents could lawfully intermarry, and other illegitimate children. The parent is liable for the support of all.</p> <p>2. A railroad company is entitled to the use of its track. One upon it in the country is a trespasser. Those operating its cars there are not bound to be on the lookout for him, but must use all reasonable effort to avoid injury to him after his presence is known. In a city or place where many persons are passing about, public policy requires however that those operating the cars should be on the lookout and use all reasonable care to avoid injuring them.</p> <p>3. The company must provide all such appliances for use in the operation of its cars as are reasonably calculated to protect persons from injury, and use all reasonable care to keep them in good condition. If it knowingly uses defective appliances, or which in the exercise of reasonable care might be known to it to be so, then it is liable for all injury resulting from such use.</p> <p>Railroads — lookout. As to duty to maintain lookout on railroad trains, see editorial note to Smith v. Norfolk & S. R. Co. 25 L. R. A. 287.</p>

<p>ANNULMENT OE CONTRACT-DEMURRER — DAMAGES.</p> <p>1. When a declaration asks for recovery of alleged profits that would have arisen from the full performance of a contract, but does not allege that such contract was wrongfully terminated by the defendant, a special demurrer will lie.</p> <p>2. The plaintiff may, however, recover for what he has actually done and furnished; and defendant cannot defeat this by an annulment of the contract under a mere right to annul it.</p> <p>Damages — loss of profits. The authorities dealing with loss of profits as an element of damages for breach of a contract are fully presented and discussed in editorial note to Wells v. National Life Asso. 53 L. R. A. 33; while the loss of profits of sale or purchase as damages is similarly treated in editorial note to Guetzkow Bros. Co. v. A. H. Andrews & Co. 52 L. R. A. 209. Other questions involving loss of’ profits as element of damages are treated in the following editorial notes: Damages for tort as affected by loss of profits, note to Wallace v. Pennsylvania R. Co. 52 L. R. A. 33; Damages for infringement of patents, copyrights, or trademarks as affected by loss of profits, note to Rose v. I-Iirsh, 51 L. R. A. 801.</p>

<p>TRESPASS — INJUNCTION—INTERVENING PETITION-DEMURRER - EMINENT Domain — Railroad Company — Adequate Remedy at Law — Laches.</p> <p>1. Where trespasses go to the destruction of the substance of an estate, cannot well be measured in damages, and are of a continuing character, equity will interfere.</p> <p>2. The Code of Commerce for Porto Rico of 1885 authorized the formation of railroad companies, and provided how it should be done. Also for the exercise of the right of eminent domain for a public utility, upon payment of indemnity.</p> <p>3. The question of laches may be raised by demurrer. When a landowner has desisted from attempting to enjoin the occupation and use of his land by a railroad company so long that the company has in good faith expended large sums of money in making improvements, he has been guilty of such laches that an injunction will not be granted.</p> <p>4. Moreover, when the company has made improvements of great value, and the public have become interested in its public service, it would be against public policy and inequitable to grant the landowner an injunction against the use of his land by the public servant.</p> <p>•’ Injunction to prevent trespass. The authorities dealing with injunction against trespass to cut timber are presented in editorial note to Carney v. Hadley, 22 L. R. A. 233.</p>

<p>Railroad Corporation — Degree of Care — Presumption of Negligence from Injury — Degree of Care Required of Owner of Property Injured.</p> <p>1. It is the duty of a railroad company to provide reasonably safe machinery, and to operate it in a reasonably safe manner. The degree of care to be exercised in the conduct of any business depends upon its character.</p> <p>2. If the property of another be injured by the operation of a railroad train, prima facie it must be presumed it arose from the negligence of the company.</p> <p>3. The owner of property injured must use reasonable care and effort to protect himself from further loss by its deterioration in value.</p> <p>Railroads — fire. The authorities dealing with the question of presumption as to negligence in case of railway fires are presented in editorial note to Barnowslci v. Helson, 15 L. R. A. 40. In some of the states, statutes have been passed imposing upon railroad companies absolute liability for damages resulting from fir.e, and the constitutionality of such statutes is discussed in editorial note to Matthews v. St. Louis & S. F. R. Co. 25 L. R. A. 161.</p>

<p>Nolle Prosequi by District Attorney.</p> <p>1. The court should grant a motion to nolle an indictment, made by the prosecuting attorney who is charged with the duty to prosecute, unless it has some knowledge that the motion is based upon improper motives.</p> <p>2, The Secretary of the Treasury has power by law to remit a penalty incurred by the nonpayment of a custom duty, and to direct the prosecution therefor dismissed. The solicitor of the Treasury may, in cases like these, instruct the district attorney what he is to do.</p>

<p>Railroad — Negligence—Duty of Company to the Public — Duty to Persons on Track — Contributory Neglect.</p> <p>A railroad company is in law present in those operating its train. It has the right to the use of its track. In the country, one on it is a trespasser. Those operating the train are not bound to look out for him. In a city or thickly populated place public policy requires a different rule.</p>

<p>Bilt, to Redeem MoRtgaged Property — Pleadings—Evidence—Testimony as to — Transaction With Dead Agent.</p> <p>1. When facts charged in a bill are positively denied by answer under oath, and the complainant supports them by but one witness, the bill will be dismissed; but otherwise if by two or more witnesses, or by one witness and corroborating circumstances. An answer not under oath is merely denial, — a pleading. Undisputed facts need not be proven; and a complainant, in order to get the benefit of an admission of a certain fact, is not required to admit everything in the answer.</p> <p>2. Under § 858, U. S. Rev. Stat. (U. S. Comp. Stat. 1901, p. 659), all parties and persons are competent witnesses in a civil action, save that in actions by or against executors, administrators, or guardians a party to the suit shall not testify against them as to any transaction with or statement by the testator, intestate, or ward, unless called to do so by them.</p>

<p>Liability of Agent to Principal fob Interest — Demand before Suit.</p> <p>1. It should be presumed an agent to collect a debt collected the interest due on it. This was his duty.</p> <p>2. It is a general rule that a principal must demand of his agent money collected by him in the course of his agency before he can sue for it. There are, however, limitations upon this rule. If he be merely a collecting agent, and fails to render an account of it or to report it within a reasonable time, such demand is not necessary.</p>

<p>Opinion on Motion foe Appointment op Receiver and Injunction to Stay Waste.</p> <p>1. Notice of application for appointment of receiver. — Where notice of the application for the. appointment of a receiver and for an injunction was given defendants in Porto Rico July 19th, 1901, to be presented to the judge of this court August 2d, 1901, at Crescent Hill, Kentucky, —Held, not sufficient notice, considering all the circumstances.</p> <p>2. Recitals of 6ill and affidavits as to time of waste. — Where the averment of the bill as to wilful mismanagement and waste is of a general character, and the affidavits presented in support of it speak mainly in general terms of conditions in April, 1901, more than three months before the application, it should be denied.</p> <p>3. Power of judge of this court when out of his district. — It is a “grave question” whether the judge of this court, although having the power of a judge of both the circuit-and district court of the United States, has power to appoint a receiver or grant an injunction when out of his district, — and one not necessary to be now decided.</p>

<p>In Equity — Waste—Receives.</p> <p>1. Generally a court should he reluctant to appoint a receiver upon the application of a mortgagee, and should only do so upon clear proof of danger of loss of the security in whole or part.</p> <p>2. When the value of the security was in excess of the mortgage debt at the time of its creation, the security should not be allowed to become of doubtful sufficiency. The mortgagor may use it, but not in such a manner as to destroy its value.</p> <p>3. A mortgagor is guilty of permissive waste by permitting the premises to greatly deteriorate in value for the want of proper attention. In such a ease a mortgagee is entitled to a receiver to take charge of the property.</p>

<p>Appeals from Orders Appointing Receiver and Granting Temporary Injunction.</p> <p>1. An appeal does not lie from tins court from an order appointing a receiver or granting a temporary injunction; such orders not being final decisions within the act of April 12th, 1900, authorizing appeals to the Supreme Court of the United States.</p> <p>2. Neither the act of March 3d, 1891, creating circuit courts of appeals, and regulating appeals thereto, nor the acts of February 18th, 1895, and of June Gth, 1900, relating to appeals to the circuit courts of appeals from interlocutory orders, apply to this court, from which appeals can be taken only to the Supreme Court of the United States.</p>

<p>In Equity — Bill for Foreclosure of Mortgage and Accounting — Money Borrowed by Receiver.</p> <p>1. Wliere the borrower of a sum of money stipulates that the interest on it shall be paid annually, and a mortgage on an estate is given to secure both principal and interest, failure of the debtor to pay the interest as it becomes due will authorize a foreclosure for it and a sale of the property, notwithstanding the principal has not become due. While there can, of course, be but one foreclosure of a mortgage, it may be had for the interest due upon a debt.</p> <p>2. Sums borrowed by the receiver of the property mortgaged should be paid, together with the interest owing to complainants, by a foreclosure of the mortgage.</p>

<p>Opinion on Demurrer to Plea to the Jurisdiction.</p> <p>A corporation organized in a dependency, or province of Spain by Spanish' authority is a creature of the Spanish government. A corporation, has the citizenship of the sovereignty that creates it, and its incor-porators are presumed to be citizens of the state creating it.</p>

<p>OPINION ON DEMURRER TO T1IE DECLARATION.</p> <p>By the common law no civil action lies for an injury through negligence resulting in death. But by the civil law in force in Porto Rico, as construed by. the supreme court of Spain, which was the supreme tribunal as to the construction of law applicable to Spanish possessions, it does lie.</p> <p>Deaili — action for. As to common-law right of action . of parent for loss of service of child killed, see editorial note to Gulf, C. & S. F. R. Co. v. Beall, 41 L. R. A. 807; as to the number of distinct causes of action arising from injuries resulting in death, see editorial note to Louisville & N. R. Co. v. McElwain, 34 L. R. A. 788; as to liability of railroad receiver for negligence resulting in death, see editorial note to Turner v. Cross, 10 I,. R. A. 202.</p>

<p>Opinion on Motion to Vacate Supersedeas and fob Execution.</p> <p>1. Writ of error — stvpersedees.—The service of the writ of error within sixty days from the rendition of the judgment is an indispensable requisite to its operation as a supersedeas. The court has no discretion in the matter.</p> <p>2. Where a writ of error is not served until eighty-three days after rendition of judgment, no motion to vacate supersedeas is necessary, although bond be properly given; and execution may issue as a matter of right to enforce the judgment.</p>

<p>Opinion on Motion to Stec Aside Judgment and Quash Execution.</p> <p>Correction or alteration of judgment after term. — After the expiration of the term at which a judgment is rendered, the court has no power to correct or alter the same, unless the. judgment be void for want of jurisdiction.</p>

<p>Opinion on Demuerer to Bill foe Injunction.</p> <p>1. The action of the insular Treasurer in approving or disapproving a municipal ordinance relating to the financial affairs of the municipality is not final. His acts are of a ministerial character, and are not beyond the control of the courts in a proper case.</p> <p>2. The autonomic Constitution of 1897 did not repeal the municipal law limiting tlie levying of a consumption tax to such articles as were consumed in the town levying the tax,-and limiting such tax to 25 per centum of the value of the article.</p> <p>3. A municipal ordinance clearly unreasonable and oppressive is void. One levying a consumption tax on salt'on hand at its passage, and nearly to its value, and which to a material extent is not consumed within the limits of the municipality, is void. Any interested party may enjoin a void ordinance.</p>

<p>Liability of Municipality foe Toet.</p> <p>1. A municipal corporation is liable for a trespass by its officers, if they acted under its authority, and it was committed in the exercise of a corporate act.</p> <p>2. A trespass committed by the employees or officers of a municipality, if afterwards ratified or the benefit accepted by the corporate authority, becomes the act of the municipality, for which it is liable.</p> <p>3. If the mayor of a city takes possession of property forcibly, and the city receives the benefit of such property for any length of time, it must be held to have ratified his action, and to have assumed the responsibility therefor as a corporate act of the city. •</p> <p>4. The measure of damages in such a case is compensation for all injury which resulted as a direct consequence from the trespass. It is not limited to compensation for the use during the time defendant was actually in possession, but includes all damage which may have been done to the property, which was a direct result of the wrongful entry and wrongful use.</p> <p>Municipal corporations — torts. Various questions relating to the liability of municipal corporations for tortious acts ai-e discussed in. the following editorial notes, where the authorities dealing with the particular questions involved are fully presented: Liability of municipal corporations for false imprisonment and unlawful arrest, note to Bartlett v. Columbus, 44 L. R. A. 796; Municipal liability for arrest and imprisonment under invalid ordinance, note'to McGraw v. Marion, 47 L. R. A. 593; Liability for imprisonment in unfit prison, note to Shields v. Durham, 36 L. R. A. 293; Distinction between, public and private functions of municipal corporations in respect to liability for negligence, note to Bai-ron v. Detroit, 19 L. R. A. 452; Liability for acts of policeman, note to Whitefield v. Paris, 15 L. R. A. 783; Liability for acts of firemen, note to Dodge v. Granger, 15 L. R. A. 781; Liability for permitting animals in streets, note to Cochrane v. Rrostburg, 27 L. R. A. 728; Liability for property destroyed by mob, note to Gianfortone v. New Orleans, 24 L. R. A. 592; Liability for authorizing dangerous nuisance such as fireworlcs, note to Scan-lon v. Wedgex-, 16 L. R. A. 395.</p> <p>5. If, after the trespass had been committed, and after having remained in possession of the property for a time, using the same in the manufacture of gas, the city abandoned it, the agent of the company being present, the plaintiff could only recover for the injuries which were the direct consequences of the trespass.</p> <p>6. If the trespass was committed wantonly, exemplary damages may also be awarded.</p>

<p>Moxion for Bill of Particulars.</p> <p>1. In an action of trespass, a bill of particulars will not be required of plaintiff where the declaration shows the character of the property injured and the manner and extent of the injury.</p> <p>2. An application for a bill of particulars ought properly to be supported by an affidavit showing its necessity.</p>

<p>Powers oe a Municipal Council.</p> <p>1. Although the action of a municipal council may be ill advised, it must stand unless the presumption that a public officer has done his duty is overturned by evidence showing fraud or corruption.</p> <p>2. The municipal council has the right to fix the basis and specifications for bidding on á contract with the city.</p> <p>3. The municipal council has the right to judge what measures afford the greatest benefit and security to the public.</p>

<p>WRITS OF POSSESSION' — PERSONS NOT PARTIES OR PRIVIES TO A CUIT NOT Affected.</p> <p>1. A court issuing a, writ of possession retains equitable jurisdiction over it, and may recall it. Section 716, United States Revised Statutes, (U. S. Comp. Stat. 1001, p. 580), gives the power to issue all writs necessary for the exercise of the court’s jurisdiction; but such writs must be in accord with the usages and principles of law.</p> <p>2. Persons not parties or privies to a suit cannot be affected in their rights by any order or proceeding in such suit.</p>

<p>Bilí. Quia Timet — Disclaimer—Demurrer—Pleadings—Injunction—■ Suit in Another Court.</p> <p>1. A disclaimer by a defendant to all of the land described in complainant’s bill quia timel is sufficient.</p> <p>2. A general demurrer to a bill quia timet which alleges that the defendant, with others, is asserting certain mortgage claims prescribed by limitation, invalid for want of proper registration, and in fact already paid, does not lie.</p> <p>3. When exceptions to an answer for impertinence involve an examination of the mode of recording mortgages under the Spanish system, and questions of fact, they can properly be referred to a master for report.</p> <p>4. Where two courts have concurrent jurisdiction, the one acquiring control of the property in contest holds it. It is then in custodia legis. The mere pendency, however, of an executory foreclosure suit in one court, custody of the property not having been acquired, does not bar a suit in equity in another court as to the same property.</p> <p>5. A mortgage proceeding under the local law is merely a summary or executive process, affords no opportunity for equitable relief; and there can be no complete decree as to claims between the parties.</p> <p>6. One court has no power to enjoin another court; but it can enjoin a litigant in personam to prevent a defeat of its action. Where a bill is brought in this court to cancel an obligation, and subsequently there is a proceeding' by the creditor in another court to enforce it by an executory and summary proceeding, this court has power to enjoin such litigant from further procedure in such other court, in order to prevent the possible action of this court from being rendered ineffectual.</p>

<p>Right or Heir to Sue.</p> <p>1. In a suit by an heir to collect his share of a debt due Ms ancestor, it suffices for him to aver he is such heir.</p> <p>2. Under the local law the heir may collect a debt coming to him by heir-ship from his ancestor.</p>

<p>NONRESIDENT DEFENDANT — SERVICE BY PUBLICATION-SEQUESTRATION.</p> <p>X. Service upon a. nonresident defendant by publication in an action not to enforce a lien, and prior to the attachment of his property or its seizure in some way, is a nullity.</p> <p>2. Where a nonresident defendant whose place of residence is unknown has property within the district, the court may allow substituted service upon the defendant’s attorney in fact residing within the district, with an order of sequestration of defendant’s property. This will give jurisdiction in rem, if not in persona/m.</p>

<p>Motion to Set Aside Verdict — Jurisdiction.</p> <p>1. A war ship is a detached portion of the sovereignty to which it belongs. Although not under control of the sovereignty of a foreign port, it cannot harbor criminals.</p> <p>2. There can be no entry of a foreign war ship by the local power for the purpose of arresting a criminal thereon,, without the permission of its commander; yet it is his duty to surrender to the local authority persons charged with ordinary offenses. If he refuses, diplomatic appeal to his government is the remedy. This rule does not apply to foreign merchant vessels. Within the three-mile zone the sovereignty of the shore may by due process arrest one thereon charged with crime.</p> <p>3. When once the person is turned over by the commander of the war ship to the shore authorities, their laws regulate in what tribunal the case will be tried. The United States court has jurisdiction over the harbors of Porto Rico.</p>

<p>Malicious Pkosecution — Pbobable Cause — Malice.</p> <p>.1. To maintain an action for malicious prosecution one must stow that he has been prosecuted either civilly or criminally; that the prosecution has ended; that it was without probable cause and malicious,— whereby he has been damaged.</p> <p>2. A malicious prosecution' is a-wanton, wilful one, without probable cause.</p> <p>3. Express malice need not be shown; but malice is generally inferable from want of probable cause.</p> <p>4. Probable cause in law in a civil action may consist of such circumstances known to the party as reasonably lead to the inference by him that he has the right to do as he is doing, even though he in fact has not the right.</p>

<p>New Trial — Newly Discovered Evidence — Diligence—Statement of Vendor After Conveyance by Him.</p> <p>1. Where newly discovered evidence is the ground for a new trial, it should be overruled if a want of diligence to obtain it before the trial appears.</p> <p>2. Tlie statement of a vendor made subsequent to a conveyance of the property by him is not admissible to slander the title he professed to convey.</p>

<p>Suit in Poema. Paoteeis.</p> <p>1. An affidavit supporting a motion to be allowed to sue without prepayment of costs or giving security therefor, in addition to stating that plaintiffs are unable to pay the costs, and that they believe they are entitled to the relief asked, must set forth briefly the nature of the alleged cause of action, and also state the citizenship of the parties.</p> <p>2. The United States statute providing for suits m forma pauperis in terms limits the right to citizens of the United States; but in this jurisdiction it should be construed to also embrace citizens of Porto Rico.</p>

<p>Possession by Joint Owner — Limitation.</p> <p>1. One heir in actual possession or exercising acts of ownership is presumed to act or he in possession for all, unless his acts and declarations rebut that presumption. Such acts and declarations must be open, public, and notorious.</p> <p>2. Such possession, acts, and declarations by one heir, continued for ten years, openly, publicly, and notoriously, with recorded evidence of right, will bar a right of recovery.</p> <p>3. An actual possession of thirty years’ duration, openly, publicly and notoriously, without record title, will bar a recovery.</p>

<p>Nolle Prosequi by Prosecuting Attorney.</p> <p>1. In the absence of statutory provision the weight of judicial authority seems to be that the prosecuting attorney has the right before trial to enter a nolle of an indictment.</p> <p>2. The court certainly should not refuse such a motion when made, unless it has knowledge of improper reasons therefor, as it is made by an officer acting upon his oath and under his official responsibility.</p>

<p>Contempt.</p> <p>It is..a contempt of court for a party to an action to talk to witnesses or in their presence, and especially in such a way as to intimidate them, or prevent them from giving true testimony; he knowing they had been put under the rule not to talk to anyone, or suffer anyone to talk to them as to the ease.</p>

<p>Importation of Foreign Labok — Sufficiency of Declaration.</p> <p>1. The acts of Congress relative to importation of foreign labor are highly penal, and are to be strictly construed; and the averments of a declaration seeking the recovery of the. penalty must fully cover the ease.-</p> <p>2. By the act of March 3d, 1903, Congress evidently intended to prohibit the importation of all labor, skilled or unskilled, save that of the character therein excepted.</p> <p>3. A declaration under this act, to be sufficient, should aver that the alleged labor or service is not of the character therein excepted.</p>

<p>Jubisdiction — Citizenship.</p> <p>1. Under the French law one may denationalize himself by acquiring a foreign domicil; and by the Spanish law one may become a Spanish citizen by acquiring a domicil.</p> <p>2. Domicil is mainly a question of intention; and the declaration of the party should control unless overthrown by his acts.</p> <p>3. The citizenship of the child follows that of the parent.</p>

<p>Opinion on Petition for Habeas Corpus.</p> <p>United States courts will not interfere by writ of habeas corpus with prisoners held by local authority except in the eases enumerated in § 753 of the Revised Statutes of the United States* U. S. Comp. Stat. 1901, p. 592.</p> <p>Habeas corpus. The authorities dealing with the power of the Federal courts to issue writs of habeas corpus are presented in editorial note to Tinsley v. Anderson, 43 L. ed. U. S. 92.</p> <p>As to when habeas corpus will issue, and, what may be inquired into upon such writ, see editorial notes to Pearce v. Texas, 39 L. ed. U. S. 164; Oteizay Cortes v. Jacobus, 34 L. ed. U. S. 464; Re Carll, 27 L. ed. U. S. 288; as to issuance of the writ in extradition cases, see editorial note to Oteiza y Cortes v. Jacobus, 34 L. ed. U. S. 464; as to the suspension of writ of habeas corpus, see editorial notes to Luther v. Borden, 12 L. ed. U. S. 581; Re Boyle, 45 L. R. A. 832; as to issuance of writ for purpose of reviewing excessive sentence, see editorial note to Re Taylor, 45 L. R. A. 136; as to presumption of innocence in habeas corpus proceedings, see editorial note to North Carolina v. Jones, 22 L. R. A. 678.</p>

<p>Injunction — Demurrer to Jurisdiction.</p> <p>1. The act of Congress of March 2d, 1901, extends the jurisdiction of this court to controversies ivhere the parties, or either of them, are citizens of the United States or a foreign state.</p> <p>2. An electric light company acquiring under proper authority a reasonably sufficient space for its lines along a street is entitled thereto, which another must not invade; but it cannot claim more than a reasonable space to the exclusion of another company.</p> <p>Highways — erection of wires and poles. The authorities relating to rights of telegraph and telephone companies to use public streets and erect poles therein are presented in editorial note to St. Louis v. Western Ü. Teleg. Co. 37 L. ed. U. S. 810; electric wires in a street as constituting a nuisance subject to municipal regulation, note to Louisiana v. New Orleans City & L. E. Co. 39 L. E. A. 621.</p> <p>Electric companies. In the following editorial notes the authorities dealing with various liabilities of electric companies are presented: Negligence us to electric wires on or in buildings, note to Griffin v. United Electric Light Co. 32 L. E. A. 400; Liability for injuries by electric taires in highways, note to Denver Consol. Electric Co. v. Simpson, 31 L. E. A. 566; Regulation of electric companies under the police power of the state, note to Missouri ex rel. Laclede Gaslight Co. v. Murphy, 31 L. E. A. 798; Electric wires as constituting a nuisance subject to municipal control, note to Harrington v. Providence, 38 L. E. A. 306.</p>

<p>Demurree in Equity.</p> <p>In equity a demurrer not accompanied by the affidavit of the party that it is not interposed for delay, or the certificate of the solicitor that it is well founded in law, is fatally defective, and may be disregarded, and a decree pro confesso entered.</p>

<p>Opinion on Motion to Remand Cause.</p> <p>1. An averment that a party is a citizen of a certain state or country implies that he is, or at one time was, a resident thereof.</p> <p>2. An amendment to a petition for removal, of a merely defective averment, may be allowed in this court.</p> <p>3. Nonresidence as well as residence, once shown, is presumed to continue.</p>

<p>Equity — Pleadings—Conjugal Property — Divorce.</p> <p>1. A married woman must sue by her next friend.</p> <p>2. A wife, in Porto Rico, cannot sue for her part of the conjugal earnings and property until after the dissolution of her marriage; but the estate arising during the marriage belongs, upon the dissolution of it, equally to her and her husband. Until then he is the administrator of it, and he can alienate or encumber it in good faith and for a consideration; but the wife cannot.</p> <p>3. A defendant cannot plead to the whole bill and at the same time answer all of it. The answer overrules the plea.</p> <p>4. A proposed amendment to the bill, averring that since it was filed a divorce has been granted, and to enlarge the prayer by asking the taking of an account by a master, should be allowed.</p>

<p>Opinión as to Claims op Witnesses.</p> <p>1. A witness duly subpoenaed is not entitled to a per diem while traveling to and from the court, but only to mileage.</p> <p>2. Where a witness is subpoenaed and not introduced, the presumption is he has been brought to court unnecessarily. His claims should not be taxed as costs against the adverse party.</p>

<p>Action on Insurance Policy — Conditions of Policy — Proofs—Waiver of Proofs.</p> <p>1. An insurance company may require notice of a fire within a reasonable time after its occurrence, and also proofs of loss within a reasonable time.</p> <p>2. If the company notifies the insured he need not furnish them, or if they are furnished after the time specified in the policy, and it makes no objection to them within a reasonable time, this amounts to a waiver.</p> <p>3. An insurance policy on a stock of goods embraces the goods substituted in the usual course of business for those sold.</p> <p>Insurance — -proofs of loss. As to forfeiture by failure to furnish proofs of loss within a stipulated time, see editorial note to Steele v. German Ins. Co. 18 L. R. A. 85.</p>

<p>Equity Practice.</p> <p>1. A party has the right to disregard a clearly defective plea and proceed as if none were filed by entering in due time an order taking the bill pro confesso.</p> <p>2. When nothing could have been done, however, between the time of filing the defective plea and the motion to set aside the pro confesso order, on account of the absence of the judge, the order nisi taking bill pro confesso should be set aside, and a plea properly verified and certified allowed to be filed.</p>

<p>Injunction Bond — Power to Requise.</p> <p>Before removal of suit to this court, the insular court, by virtue of an act of the legislatui-o, granted the complainant an injunction without bond. Under the equity practice this court has a discretion to require a bond or not. As none was given in the insular court, and there is no express averment in the answer of accruing damages, it would not be inclined to require it. Aside from this, however, there is no authority to require a bond where the state or political sovereignty brings the suit.</p>

<p>Vacation of Order Dismissing Bill — Exceptions to Answer.</p> <p>1. Where complainants under equity rule 63 had the right to set exceptions to the answer for hearing on the second rule day after they were filed and did not do so, they have no right to afterwards have said exceptions heard.</p> <p>2. When the defendant, without malting any motion to dismiss the exceptions for want of compliance with the rule, enters an order dismissing the hill because complainant had not set down the exceptions for hearing within the specified time; and.it is shown there was no judge in the jurisdiction to hear them within the prescribed time, and that complainant moved in the matter as sopn as action could be had on the return of the judge, — the court will exercise its discretion and allow the reinstatement of the cause.</p>

<p>MotioN to Dissolve Temporary Injunction and Dismiss Bill — Public Lands — Military License — Riparian Rights — Injunction.</p> <p>1. While parties are perfecting pleadings it would be irregular to act upon a motion to dismiss bill for want of equity, although determining the motion to dissolve temporary injunction may virtually determine the case.</p> <p>2. By the treaty of Paris the United States was vested with the right formerly belonging to Spain in crown lands in Porto Rico; and the War Department had power to grant a revocable license for the building of a wharf in the harbor of San Juan.</p> <p>3. A complainant owning the riparian right to harbor shores can enjoin the building of a wharf which would rest on those shores, but cannot enjoin the use of the navigable waters of the harbor, for they belong to the United States.</p> <p>4. A complainant, to obtain injunctive relief, must present an equitable state of case. Where a revocable license granted by the War Department provided that the United States or Porto Rico reserves the right afteir three months’ notice to take the wharf from the licensee upon the payment of the value of the structure, and the complainant seeks by injunction to prevent the repair of said wharf when injured by fire, it must show that it has done equity and complied with the terms of the license by the offer to the company of its value, before the court will act by injunction.</p> <p>'Navigable waters — riparian rights. The authorities bearing on various questions relating to the rights of riparian proprietors in the shore bordering on, and the land under, navigable waters, are presented in the following editorial notes: What waters are navigable, notes to Willow River Club v. Wade, 42 L. R. A. 305; Gibson v. United States, 41 L. ed. U. S. 997; What are navigable waters of the United, States, notes to United States v. The Montello, 22 L. ed. U. S. 391; Perry v. Haines, 48 L. ed. U. S.73; State control as distinguished from Federal control over navigable waters, note to Gibson v. United States, 41 L. ed. U. S. 997; Public rights on navigable waters, note to Gibson v. United States, 41 L. ed. U. S. 997; Obstruction of navigable stream by log boom, note to United States v. Bellingham Bay Boom Co. 44 L. ed. U. S. 437; Right to use stream for floating logs, note to Carlson v. St. Louis River Dam & Improv. Co. 41 L. R. A. 371; Right of owner of upland to access to navigable water, note to Washington ex rel. Denny v. Bridges, 40 L. R. A. 593; Right of access to water, note to Slater v. Gunn, 41 L. R. A; 268; Title to la/nd under water, note to Goff v. Cougle, 42 L. R. A. 161; Title to land between high and low water marh, note to Waverly Water Front Improv. & Development Co. v. White, 45 L. R. A. 227; The law of accretion to shore land, note to De Lassus v. Faherty, 58 L. R. A. 193; Effect of sudden submergence upon title to land, note to Chicago v. Ward, 38 L. R. A. 849; Division of water front, alluvion, and flats between adjoining riparian owners, note to Northern Pine-Land Co. v. Bigelow, 21 L. R. A. 776; Separation of riparian rights from upland, note to Gratz v. Land & River Improv. Co. 40 L. R. A. 393.</p> <p>Wharves. Public right of access to water, note to Slater v. Gunn, 41 L. R. A. 268; Right of Vnited States and the states to shore lands and accretions against piers, note to Doe ex dem. Hallett v. Beebe, 14 L. ed. U. S. 35; Right of riparian owner to construct, note to Ex parte Easton, 24 L. ed. U. S. 373.</p>

<p>INVOLUNTARY BANKRUPTCY.</p> <p>1. Generally an affidavit in a cause should not be made by the attorney. In strict equity practice such an affidavit would be invalid if made in a suit then pending, and not merely preparatory to the commencement of it.</p> <p>2. A petition in bankruptcy should be verified by the petitioner, or, if verified by another, the reasons therefor should be given. The forms and rules in bankruptcy prescribed by the Supreme Court must be given a practical construction to promote justice.</p> <p>3. A duly authorized agent may, where all the petitioners reside and are out of the district, be allowed to make the affidavit to an involuntary petition, but his authority, and means of knowledge should appear in such affidavit. '</p> <p>4. There is no presumption of fact that one claiming to be a special agent has been regularly appointed. When a petition in bankruptcy is verified by an agent he should, if required, show bis authority to so act.</p>

<p>Involuntary Bankruptcy — Demurrer to Petition — Suspension op Payments as Acts of Bankruptcy.</p> <p>1.'A petition in bankruptcy should show the alleged bankrupt’s business; and a person “trading” is not within the excepted class.</p> <p>2. A firm is not insolvent if the partnership assets, adding individual assets less exemptions and individual debts, will pay the firm debts.</p> <p>3. A petition on the part of the alleged bankrupt, to a local court under the local law, to be allowed to go into “suspension of payments,” acknowledging his inability to pay his debts, and asking a release of part of his indebtedness and further time within which to pay the balance, but failing to admit a willingness to be adjudged bankrupt under the national bankruptcy law, is not an act of bankruptcy.</p>

<p>ACTION ON THE CASE — DEMURRER TO DECLARATION.</p> <p>1. An action on the case lies against a common carrier or a warehouseman for a violation of the duty imposed by a contract express or implied; and in such a ease it is proper to set forth the contract as an inducement and basis for the tort.</p> <p>2. In such a ease negligence may be charged in general terms.</p> <p>Pleading — general allegations as to negligence. The authorities dealing with the sufficiency of general allegations of negligence are fully presented and discussed in editorial note to King v. Oregon Short Line R. Co. 59 L. R. A. 209.</p>

<p>Motion fob New Trial — Presumption of a Grant.</p> <p>1. A statute of limitation does not run against the state. Possession by an individual for the time mentioned in the statute, with a claim oi absolute ownership, raises a conclusive presumption of a valid grant against all but the sovereign.</p> <p>2. From long possession, accompanied with all the acts usual to unqualified ownership, the jury may, however, presume a grant from the sovereign.</p> <p>Adverse possession — limitation of actions — as against state. As to rights acquired against the public by adverse possession of highway or city street, see editorial note to Meyer v. Graham, 18 L. R. A. 146.</p>

<p>Comity between Courts — Subpcena Duces Tecum as to Court Records.</p> <p>Proper judicial comity would dictate that one court should allow another the use of its records, and direct its officers to obey a- subpoena duces tecum, when it is shown the original record is material in evidence in a cause pending in the court issuing the subpoena. This should not, however, deprive the court in which the records belong of their necessary use in a pending cause under consideration.</p>

<p>Actioít NOR Support on Illegitimate Child — Attorneys’ Pee.</p> <p>1. Where a statute obliges the father to support his illegitimate child until the latter arrives at the age of eighteen years, and also fixes how this support shall be furnished or paid, the child may, nevertheless, maintain an action for the value of such support where the father has abandoned it and is about to leave the country.</p> <p>2. Where an attorney renders legal services in the prosecution of a suit, and during its pendency there is a collusive settlement between some of the plaintiffs and the defendant, with the intention to defraud the attorney of his fees, the court should permit the attorney to join as eo-plaintiff with the remaining plaintiff' for the recovery of a reasonable fee for services rendered ro the plaintiffs who joined in the settlement.</p>

<p>ACTION BY PARENT FOB NEGLIGENT KILLING OF CHILD — RELATIVE DUTIES of Employer and Employee.</p> <p>1. A father, unless dependent on his son, deceased, for support in whole or in part, cannot recover under the act of March 1st, 1902 (R. S. Porto Rico, articles 322-333).</p> <p>2. Appliances furnished by employer to employees need not he of the highest possible degree of perfection, but must be reasonably safe for the performance of the work required.</p> <p>3. The care which an employee placed in a dangerous position by his employer must exercise is that which a reasonable man would probably use under those conditions.</p> <p>4. An employee who unnecessarily places himself in danger and is injured cannot recover; nor if he knew the defects in machinery or appliances, and continued to use them without notifying his employers or superiors.</p> <p>Master and servant. The authorities bearing upon various questions relating to the liability of the master for injuries to his servants are fully presented and discussed in the following editorial notes:—</p> <p>Duty of master: Right of a servant to recover for injuries caused hy projecting screws in shaft and other moving machinery, note to Ford v. Mt. Tom Sulphite Pulp Co. 48 L. R. A. 96; Effect of an assurance of safety given by a master or eoservant, note to McKee v. Tourtellotte, 48 L. R. A. 542; Liability of employer for injuries received by servants owing to want of blocking at switches, note to Narramore v. Cleveland, C. C. & St. L. R. Co. 48 L. R. A. 68; Duty of a master to instruct and warn his servants as to the perils of the employment, note to Janies v. Rapides Lumber Co. 44 L. R. A. 33; Duties of master and, servant with regard to rules promulgated for the safe conduct of the business, note to Nolan v. New York, N. H. & H. R. Co. 43 L. R. A. 305; Duty of master to furnish medical aid to servant, note to Ohio & M. R. Co. v. Early, 28 L. R. A. 546; Duty of master with respect to the employment of coservcmts, note to Smith v. St. Louis & S. E. R. Co. 48 L. R. A. 368; Injury to servant received in obeying a direct command, note to Dallemand v. Saalfeldt, 48 L. R. A. 753; Liability for injuries received by servant in performance of duties outside scope of original contract, note to Olson v. Minneapolis & St. L. R. Co. 48 L. R. A. 796; Knowledge as an element of an employer’s liability to an injured servant, note to Walkowski v. Penokee & G. Consol. Mines, 41 L. R. A. 33.</p> <p>Defenses in general: Volenti non fit injuria as a defense to actions by injured servants, note to O’Maley v. South Boston Gaslight Co. 47 L. R. A. 161; Rights of a servant who continues work on the faith of his master’s promise to remove a specific cause of danger, note to Illinois Steel Co. v. Mann, 40 L. R. A. 781; Reliance upon orders as affecting contributory negligence of employee, note to Orman v. Mannix, 17 L. R. A. 602; Assumption of risks outside scope of employment, note to Olson v. Minneapolis & St. L. R. Co. 48 L. R. A. 803; Contributory negligence in entering or remaining in an employment, note to Limberg v. Glenwood Lumber Co. 49 L. R. A. 33; Disobedience of master’s rules as constituting contributory negligenee, note to Ford v. Chicago, R. I. & P. R. Co. 24 L. R. A. 657.</p> <p>Vice principalship — fellow servants: Vice principalship considered with reference to the superior ranlc of a negligent servant, note to Stevens v. Chamberlin, 51 L. R. A. 513; Vice principalship as determined with reference to the character of the act v:hich caused the injury, note to Lafayette Bridge Co. v. Olsen, 54 L. R. A. 33; Statutory liability of employers for the negligence of employees exercising superintendence, note to Canney v. Walkéine, 58 L. R. A. 33; What servants are deemed to be in the same common employment, apart from statutes, where no questions as to vice principalship arise, note to Sofield v. Guggenheim Smelting Co. 50 L. R. A. 417; Doctrine of common employment qualified as to servant worhimg outside scope of employment, note to Olson v. Minneapolis & St. L. R. Co. 48 L. R. A. 805; Train dispatcher and telegraph operator as fellow servants of trainmen, notes to Little Rock & M. R. Co. v. Barry, 25 L. R. A. 386; Sofield v. Guggenheim Smelting Co. 50 L. R. A. 429; When a conductor is deemed to be a coservant of other railway employees, note to Jackson v. Norfolk & W. R. Co. 46 L. R. A. 337; Liability for negligence of fellow servant causing explosion, note to MeGahan v. Indianapolis Natural Gas Co. 29 L. R. A. 358; Liability for injuries caused to one servant by the incompetency of a fellow servant, note to Norfolk & W. R. Co. v. Hoover, 25 L. R. A. 710; The relation of the proximate cause doctrine to the rule of liability of a master for injuries to his servant caused by the combined negligence of himself and a fellow servant, note to Lutz v. Atlantic & P. R. Co. 16 L. R. A. 819.</p>

<p>FORECLOSURE-INTERVENTION OP HEIRS OP STOCKHOLDERS.</p> <p>If a trust arrangement existed betweeii the complainant and defendant companies, the claim of the petitioners, who are heirs of stockholders in the defendant company, for leave to intervene and for relief, is not prescribed or barred by laches, the alleged trust not having terminated.</p>

<p>FORECLOSURE — Intervening Defendants — Plea.</p> <p>1. In most of the states of the United States the personal representative of a deceased owner of personal property becomes vested with the title thereto, and is the proper party to enforce a trust therein; but when there is no such representative, an objection to the decedent's heirs suing in their own right will not obtain.</p> <p>2. Personal representatives are not known to the laws of Porto Rico. Under the local law an heir may enforce rights to personal estate belonging to the decedent.</p>

<p>Involuntary Bankruptcy — Fraudulent Transfers — Preferences.</p> <p>1. Under § 3 of the bankrupt act, both a fraudulent transfer of property and insolvency are necessary to constitute ground of involuntary bankruptcy. The burden of establishing fraud is upon the petitioners; but if it be shown, then the burden is upon the alleged bankrupt to establish solvency. Fraud may be shown by facts proven or inferred from circumstances.</p> <p>2. The burden of proof is, however, upon petitioners, to show both insolvency and the preference named in § 3 of the bankrupt act. To exchange one security for another, without increasing the advantage of a creditor, is not a preference within the meaning of the bankrupt act.</p>

<p>Parent’s Recovery for Death of Child from Negligence.</p> <p>1. Parent not dependent, wholly or partially, on child for support, cannot recover for death of latter.</p> <p>2. An employee of an independent- contractor cannot recover against the principal of the latter for negligence of the former, or of his employees not chargeable to the principal.</p> <p>3. If the principal was in control, wholly or partially, however, or was negligent as to any materials or machinery furnished by him, and the defects in which brought about the injury to the employee of the contractor, then the principal is liable.</p> <p>4. A workman assumes the ordinary risks of his employment, but not against defects in appliances or means furnished him to do the work; and the employer is bound to furnisn such appliances or means as are reasonably safe.</p> <p>5. The act of the legislature of Porto Rico of March 1st, 1902 (R. S. of Porto Rico, arts. 322-333), limits recovery in suits for damages by parent for death of child on whom he was dependent for support to $3,000.</p> <p>G. Plaintiff cannot recover if deceased was guilty of contributory negligence, unless the employees of the company could, notwithstanding the negligence of deceased, have prevented the accident.</p> <p>Death — action by parent. The authorities relating to the common-law right of action of parent, for loss of services of child killed, are presented in editorial note to Gulf, C. & S. If. R. Co. v. Beall, 41 R. R. A. 807.</p> <p>Master and servant — injury to servant of third person. In editorial note to Cleveland, C. C. & St. L. R. Co. v. Berry, 46 L. R. A. 33, the authorities bearing on the right of a servant to recover damages from persons other than his master for injuries received in the performance of his duties, including cases where the injured servant is at work for an independent contractor, are fully presented and discussed.</p> <p>7. In fixing the measure of damages tiie jury may take into account the earning capacity of the deceased, the probable duration of his life, and actual need of dependent parent.</p>

<p>Opinion on Application por Appointment op Receiver.</p> <p>1. General military order 224, relative to suspension of payments, construed in connection with, the Code of Commerce and Code of Procedure, does not bind creditors who are not present at the creditors’ meeting, and who have not been notified of the proceedings.</p> <p>2. In a case of violation of trust, or to prevent abuse or fraud, a court of equity will interfere even in case a suspension of payment has been decreed, and a receiver may in such case be appointed.</p>

<p>GARNISHMENT OR INSURANCE MONEY — INTERVENING PETITION — INSURANCE "WITH REFERENCE TO MORTGAGE LAW.</p> <p>1. Section 916, Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 684), applies to garnishments in Porto Rico. Under the local law, merely the nonpayment of a judgment is ground of attachment.</p> <p>2. At common law a contract of insurance for the mortgagor’s benefit is a personal one, and the mortgagee has no claim on the insurance fund in the absence of a valid contract or pledge; but under the local law the insurance is an incident to the mortgaged property. The mortgage law includes in the mortgage all insurance policies on the mortgaged property.</p> <p>Insurance — rights of mortgagee. In the following editorial notes the authorities bearing on their respective phases of the subject are fully presented-: Rights of mortgagee to benefit of insurance taken (n name of mortgagor, note to Chipman v. Carroll, 25 L. R. A. 305; Rights given by the attachment of a mortgage slip to insurance policy, note to Phenix Ins. Co. v. Omaha Loan & T. Co. 25 L. R. A. 679; Effect of settlement between insurer and mortgagor upon rights of mortgagee, to whom loss is made payable as his interest may appear, note to Chandos v. American E. Ins. Co. 19 L. R. A. 321.</p>

<p>Opinion as to Priority of Claims.</p> <p>.1. Both by the Spanish municipal law and the common law a mortgage or an instrument creating a lien is assignable.</p> <p>2. A mortgagee who accepts a writing embracing different pieces of property, and providing that one of them may be disposed of by the mortgagor to enable him to carry out another contract, is estopped from questioning his right, and must abide the consequences.</p> <p>3. When a conveyance is made upon a negotiation for money under circumstances indicating it was intended as security, a court of equity will hold it a mortgage, whatever may be the form of the writing. In doubtful cases this will be the leaning of the court.</p> <p>4. Claims for services in resisting the appointment of a receiver do not stand upon the footing of the claim of a solicitor who has preserved a particular fund for the benefit of lien holders, and are not entitled .to preference.</p>

<p>IN Equity.</p> <p>1. The state of the sovereignty cannot be sued save by legislative consent; but this exemption from suit is limited to actions directly against it by name, and does not apply in favor of its agent against persons asserting private rights.</p> <p>2. While it is a general rule that every party whose interest is to be affected must be a party to an action, yet, if the party who is the real principal be exempt from judicial process, if out of the complainant’s power to sue him, — then the preventive power of the court may be applied to the agent, eat necessitate, to prevent wrong.</p> <p>Suits against state. As to what constitutes a suit against the state as distinguished from one against its officers or agents, see editorial notes to Beers v. Arkansas, 15 L. ed. U. S. 991; Hans v. Louisiana, 33 L. ed. ü. S. 842.</p>

<p>Action on Bail Bond.</p> <p>A recognizance 'taken by a court without jurisdiction, or-by an officer 'without. authority, is void. If the authority has jurisdiction it is valid, even if no offense has been committed.</p>

<p>OPINION ON DEMURRER TO THE DECLARATION.</p> <p>1. If power to sue be given an officer by.the order appointing him, he has capacity to do so whether called a receiver or special master.</p> <p>2. When limitation is relied upon as a' defense, it must be pleaded, as it is always a question of fact if prescription has run against a claim; and cannot be taken advantage of by demurrer.</p> <p>3. Even if the plaintiff may be presumed to have no personal knowledge of the facts pleaded, as is perhaps the ease when he sues as receiver or special master, yet he must state that he has none, and that therefore he avers them upon information and belief.</p>

<p>OPINION ON DEMURRED TO THE DECLARATION.</p> <p>1. Demurrer lies for a misjoinder of party plaintiffs.</p> <p>2. Under the laws of Porto Rico an executor of a will has no right to sue upon claims due the testator unless the will expressly so provides.</p>

<p>INSURANCE — Waives—Construction or Policy.</p> <p>1. A new building added to a building' insured cannot be considered as included in tlie insurance.</p> <p>2. When stock in trade is insured, the insured has the right to sell and repurchase by way of substitution, and the policy covers the substituted goods.</p> <p>3. An insurance company may waive certain conditions of the policy, as, for instance, the production of proofs of loss. It may do so through its general agent. It may do so either expressly, or by conduct calculated ■ to induce a reasonable person to believe that no proofs are required.</p> <p>4. The invasion and insurrection clause of the policy properly «construed means that such invasion or insurrection occurred within the section of country where the loss occurred, and that it was caused by such invasion or insurrection, and not by a cause independent of them.</p>

<p>Opinion on Motion fob an Injunction fbom Suing in an Insulae Coukt.</p> <p>A United States court in a suit first commenced therein may enjoin a party thereto from proceeding in an action subsequently instituted in an insular or state court, in which the issues are substantially the same, when such an action may defeat or impair the action of the United States court.</p> <p>Injunction against legal proeeedvngs. As to injunction to restrain suit in foreign jurisdiction, see the authorities presented in note to Thorndike v. Thorndike, 21 L. R. A. 71.</p>

<p>Pbiobity op Loans to Receiver.</p> <p>The objection that prior bonded indebtedness cannot be displaced by indebtedness for expenses of preservation made by the receiver under the orders of the court is not well taken. The loans to the receiver for the purpose of carrying on the business must be first paid.</p>

<p>INJUNCTION — ‘Contract with Municipality — Receivership.</p> <p>A former decree of court having placed it beyond the power of the receiver of a lighting company to continue a lighting contract with a city, the need of a restraining order preventing the city from annulling such contract is not evident, and its continuation is unnecessary.</p>

<p>Equity Pbactice — Due Peocess of Law — Multiplicity of Suits.</p> <p>1. The equity practice of a United States court is not controlled by the local law.</p> <p>2. Taxes need not be collected by a suit or judicial process in a court, but may be by a! summary process, such as forfeiture; and this is “due process of law.” But a statute of forfeiture must be construed strictly, and not to devest title without inquest of office except by express terms or necessary implication.</p> <p>3. An adequate remedy at law must be as efficient as one in equity. It must be obtainable in any court, state or Federal, having jurisdiction.</p> <p>4. Where an apportionment of taxes is to be made among municipalities and other local divisions, and complainants would be compelled to resort to a multiplicity of suits at law against them to recover taxes illegally exacted, there is ground for equitable interference.</p> <p>Federal courts — effect of state laws and decisions in. Various phases of this question are treated, and the authorities relaing thereto are presented, in the following editorial notes: State laws as rules of decision, notes to Elmendorf v. Taylor, 6 L. ed. U. S. 290; Jackson ex dem. St. John v. Chew, 6 L. ed. U. S. 584; United States ex rel. Butz v. Muscatine, 19 L. ed. U. S. 490; State laws as governing, competency of witnesses in United States courts in civil cases, note to Vance v. Campbell, 17 L. ed. U. S. 168; State limitation of actions in Federal courts, note to Elmendorf v. Taylor, 6 L. ed. U. S. 290; Federal courts following state court decisions, notes to Clark v. Graham, 5 L. ed. U. S. 335; Elmendorf v. Taylor, 6 L. ed. U. S. 290; Jackson ex dem. St. John v. Chew, 6 L. ed. U. S. 584; Mitchell v. Burlington, 18 L. ed. U. S. 351; United States ex rel. Butz v. Muscatine, 19 L. ed. U. S. 491.</p>

<p>BANKRUPTCY — PARTNERSHIP.</p> <p>1. Under the present bankrupt law a partnership in liquidation may be declared a bankrupt, although the individual members may be solvent.</p> <p>2. Where there is no showing that the creditors released any of the partners from liability, even though the partners may for a consideration have made an agreement between themselves that one of them shall assume all the liabilities, all of them are still liable to the creditors.</p>

<p>Bankruptcy — Partnership—Individual Liability.</p> <p>1. A partnership may, after its dissolution, but before final settlement, be adjudged a bankrupt. Under the bankrupt law a partnership is an entity. The individual estate of a partner not adjudged a bankrupt should not be settled in bankruptcy 'when the firm is declared bankrupt. In case the partnership assets should pay the partnership debts, and leave a surplus, his portion would be paid over to him. In the event they do not pay the partnership debts in tofo, he and his individual property would be liable for the balance. This is so because each partner is liable in solido for the firm’s debts.</p> <p>2. If an adjudication in bankruptcy be had of a partnership upon the petition of one of the partners, the other partner refusing to unite in it is, nevertheless, required to file schedules.</p>

<p>SERVICE of Process against a Firm — Application of Payments— Interest.</p> <p>1. Under the rules of tliis court, service of process upon one member of a firm brings the firm into court as to the firm property; but there can be no personal judgment against a partner not served.</p> <p>2. By the common laiv the debtor owing two or more debts may, when he makes a partial payment, direct upon which debt it shall be applied. If he gives no direction, the creditor may apply it as he chooses. By the civil law, in the absence of any direction, the creditor must apply it upon the debt most onerous to the debtor. Under both the civil and common law payments must be applied first to the extinction of interest.</p> <p>3. By the local law a mortgage debt as to the third parties can bear interest for a limited time only, it and the amount to be stipulated; and where an amount is fixed by the contract, it controls.</p>

<p>in equity — Removal of Cause — Mortgage' Foreclosure — Receiver.</p> <p>1. A petition for removal, filed in the insular court, did not expressly aver the nonresidence of the defendant; but that he was a foreigner, and subject of Spain. The insular court ordered a removal: Held, — The term “residence” is not so comprehensive as “domicil.” It need not involve an intention to remain; but it must be a fixed abode. The averment of alienage implies that defendant once lived in Spain; and in the absence of a showing to the contrary, such residence is presumed to continue.</p> <p>2. The pendency of a foreclosure proceeding in the insular court in accordance with the mortgage law of Porto Rico, it appearing that the mortgage property is not in custodia legis' is no bar to the institution of a suit in this court, involving the same parties, but allowing equities to be litigated "which cannot be considered in the insular court.</p> <p>3. A proceeding to foreclose a mortgage under the local law can hardly be called a suit; it is not an action via ordinaria, and cannot prevent this court from assuming jurisdiction of the cause and the parties before it, and appointing a receiver.</p>

<p>Plea in' Bab — Local Mortgage Law.</p> <p>1. At common law, if a court has jurisdiction of the parties and of the subject-matter, and there may be a trial on the merits, defenses to a foreclosure suit if not set up in time are barred, and a judgment in such a suit is a bar to another suit.</p> <p>2. A plea of res judicata based upon a judgment in an action in an insular court to foreclose a mortgage is, however, not sufficient, as such a judgment is but a summary one; and the local law provides that a declaratory suit may still be brought.</p>

<p>Taxation op Pbopebty op Army Post Exchange by Insular Authorities — Injunction.</p> <p>.1. Property is not exempt from local taxation merely because it is the property of a government agent. It must be shown that the taxation interferes with the governmental instrumentality in executing the government purpose.</p> <p>2. An army post exchange is an institution for private benefit; and taxation of its property will not impede the efficient exercise of governmental powers.</p>

<p>JURISDICTION.</p> <p>1. A suit, at the time it is filed, not coming within the jurisdiction of the court, should be dismissed on demurrer.</p> <p>2. An amendment stating that the amount involved will be so increased within a certain time as to bring it within the jurisdiction alleges only a possibility, and cannot be considered.</p>

<p>In Ejectment — Opinion on Demurrer to Answer and Plea to Jurisdiction.</p> <p>1. Averment in answer that all the statements in the declaration are untrue is bad pleading. A plea of “not guilty” would put in issue plaintiff’s ownership.</p> <p>2. In a suit in rem, where two courts have concurrent jurisdiction, the court that first obtains control of the property holds it. The mere pendency of a suit, however, in an insular court, although it be in its nature m rem, does not bar a like suit in the United States court as to the same property.</p> <p>3. A mere action pending in one court, between the same parties, as to the same subject-matter, cannot be pleaded in abatement to an action in the other court; but any final action in the one may be asserted in the other.</p>

<p>Contempt.</p> <p>1. To punish for contempt is the exercise of a high judicial power inherent in a court, to the proper transaction of its business.</p> <p>2. A witness cannot be compelled to give testimony which will, or is likely to, incriminate him.</p> <p>3. A witness will not be compelled in any investigation to give evidence -tending to show that he has committed a crime.</p> <p>4. A witness is not deprived of this right because there is a statute provid.ing that his testimony shall not be used against him.</p> <p>Witnesses — privilege of. As to privilege of witness as to criminating questions, see editorial note to Be Buskett, 14 L. R. A. 407; as to his constitutional protection against furnishing evidence to be used against him in a civil ease, see editorial note to Levy v. Superior Court, 29 L. R. A. 811; as to the right to compel a witness to testify where he is protected by a statute exempting him from prosecution, see editorial notes to Be Buskett, 14 L. R. A. 407; United States v. James, 26 L. R. A. 418; Interstate Commerce Commission v. Baird, 48 L. ed. U. S. 860.</p>

<p>BANKRUPTCY — INVOLUNTARY BANKRUPTS — SUFFICIENCY OF PETITION — VERIFICATION of It by Attorney.</p> <p>1. Under the bankrupt law any natural person, except a wage earner or one engaged chiefly in farming, owing $1,000 or over, may be adjudged an involuntary bankrupt; also any unincorporated company, and any corporation mainly engaged in manufacturings trading, printing, publishing, or mercantile pursuits.</p> <p>2. Qucere, — Should the petition aver the business of the defendants, or show they are not of the excepted classes? In this case the petition in substance avers the defendants are merchants.</p> <p>3. Pleadings in bankruptcy, stating facts, must be verified. If the party be a nonresident, and the facts within the knowledge of his attorney, the latter may verify them. He should, however, state that he knows the facts, and his means of knowledge.</p>

<p>Corporate Rights — Liability of Railroad Company for Injury in Its Construction to Abutting Property — Criterion of Damages.</p> <p>A railroad company must so use its, property as not to injure other persons. It is not liable for mere inconveniences to others; but it must construct and operate its road in such a reasonable manner as is not likely to result in injury to other persons.</p> <p>Railroads — ahutting owners. As to injury to abutter’s easement by construction of railroad in street, see editorial note to Egerer v. .New York C. & H. R. R. Co. 14 L. R. A. 381; as to injury to him by laying street railway near side of street, see editorial note to Ashland & C. Street R. Co. v. Faulkner, 43 L. R. A. 554.</p>

<p>In Equity — Demurbee to Bill foe Injunction — Poweb of Executive Council to Grant Eranci-iises.</p> <p>1. The ownership of streams in Porto Rico, which belonged to the Spanish government, for public use, was transferred by the treaty of cession to the United States.</p> <p>2. By the act of Congress, April 12th, 1900, the power to grant franchises in such streams was conferred upon the executive council. This duty by the executive council is not subject to the direction of the courts, save to protect vested rights. A bill which substantially is one to review its action is demurrable.</p> <p>Navigable waters of the United States. As to what are navigable waters of the United States, see the presentation of the authorities in editorial notes to United States v. The Monteilo, 22 L. ed. U. S. 391; Perry v. Haines, 48 L. ed. U. S. 73.</p>

<p>Importance op Duty op Grand Jury — Its Powers, Duties, and Manner op Their Performance.</p> <p>Grand jury. The authorities determining various questions relating to grand juries are fully presented and discussed in the following editorial notes dealing with their respective phases of the subject: Bight of women to serve on grand jury, note to Missouri ex rel. Crow v. Hostetler, 38 L. R. A. 214; Organization and procedure of grand jury, note to Wisconsin ex rel. Dunn v. Noyes, 27 L. R. A. 776; Qualifications of grand jurors, note to Iowa v. Russell, 28 L. R. A. 195; Number of grand jurors necessary or proper to act, note to Iowa v. Belvel, 27 L. R. A. 846; Numoer of grand jurors necessary to concur vn finding an indictment, note to Nevada v. Hartley, 28 L. R. A. 33; Competency of evidence before grand jury, note to Massachusetts v. Hayden, 28 L. R. A. 318; Sufficiency of evidence before, to sustain indictment, note to Minnesota v. Peterson, 28 L. R.- A. 324; Improper influence or interference with grand jury, note to Clair v. Nebraska, 28 L. R. A. 367; Negroes as grand jurors, note to Carter v. Texas, 44 L. ed. U. S. 839; Objection to grand jurors, when and how taken, note to United States v. Hamilton, 27 L. ed. U. S. 857.</p>

<p>1. A garnishment against one as an individual, and not as a governmental disbursing officer, does not stop disbursement of the money.</p> <p>2. A disbursing officer of the government is not subject to garnishment. Public n toney in his hands cannot be attached. Garnishment of government funds is contrary to public policy.</p> <p>Garnishment. As to person or property subject to garnishment, see the following editorial notes: Property in custody of lato, note to Dunsmoor v. Furstenfeldt, 12 L. R. A. 508; Money due from receiver, note to Irwin v. McKechnie, 26 L. R. A. 218; Garnishment of debt after delivery of check in payment, note to National Park Bank v. Levy Bros. 19 L. R. A. 475; Officer o>r agent of a corporation for purpose of securing dcnunl ajiinst corporation, note to Mayo v. Milwaukee Amusement Co. 36 L. R. A. 561; Liability of county to garnishment, note to Washington ex rel. Summerfield v. Tyler, 37 L. R. A. 207; Liability of carriers, to garnishment, note to ¡?tevenot v. Koch, 28 L. R. A. 600; Garnishment of executor or administrator, note to Hudson v. Wilber, 47 L: R. A. 345.</p>

<p>Powers of United States Commissioner — Relation of District Attorney to United States Commissioner.</p> <p>X. The duties of United States commissioners were at first limited to taking acknowledgments and bail. Now he is a magistrate vested with authority to hear preliminary investigations of charges of crime, and to discharge or bail the accused. A district attorney cannot control his action so as to prevent the investigation by him of a criminal charge, no more than he can control the action of a grand jury.</p> <p>2. To hold a defendant or his bondsmen liable, however, when told by the district attorney he need not appear, would be harsh and unjust, where there was no wilful default, and no indictment found by the grand jury-</p>

<p>Claim fob Mileage by Government Witness before United States Commissioner.</p> <p>1. A witness is entitled to mileage only while traveling, and not to a per diem. He must not adopt an expensive mode of travel, even to be at the hearing in time. There is no law authorizing allowance of actual expenses to private individuals.</p> <p>2. A witness before a United States commissioner is entitled to but 5 cents a mile as mileage. The act of Congress of March 2d, 1901, relative to Porto Rico, allowing more, applies only to witnesses in court.</p>

<p>Motion to Quash Indictment.</p> <p>1. An indictment under the act of March 2d, 1895 (2 U. S. Rev. Stat. Supp. p. 435), charging one with bringing lottery tickets within the United States from abroad, which fails to allege that defendant had knowledge of their unlawful character, or that he knew they were certificates or instruments representing lottery chances, is insufficient and will be quashed.</p>

<p>Evidence — Sale of United States Properte.</p> <p>1. Documents purporting to be a concession to use and dispose of United States property, given by tbe military governor of Porto Rico, and other papers from subordinate officers recognizing his act, are inadmissible in an action of ejectment by the United States to recover the property.</p> <p>2. Property of the United States cannot be sold or disposed of by any executive or military officer without the authority of the Congress of the United States.</p>

<p>Conditions of Insurance Policy — Statutes of Limitation — Evidence.</p> <p>1. Reasonable conditions attached to policies of insurance are valid. A condition requiring the insured to notify the company of loss and submit proofs of same is reasonable and binding.</p> <p>2. If a company makes no objections, within a reasonable time, to proofs of loss furnished it by the insured, such failure to object is a waiver of any insufficiency.</p> <p>3. A condition in a policy barring insured from bringing suit upon same after expiration of three months from time when payment was refused, is valid; but, if the matter was in process of settlement, the time doas not run. A waiver of limitation may be inferred from an offer to pay the claim.</p> <p>4. An insurance company may waive the fifteen years’ limitation prescribed by law for bringing suits on policies by an offer of settlement within that time.</p> <p>5. Incendiarism by the insured vitiates insurance; but if the insured had no knowledge of "the incendiary fire, and was no party to it, he is entitled to recover.</p> <p>Insurance — limitation of action. The authorities relating to the validity and operation and effect of a stipulation limiting time for suit on insurance policy are fully presented and discussed in editorial note to Sample v. London & L.. F. Ins. Co. 47 L. R. A. 096.</p>

<p>Opinion on Motion to Remand.</p> <p>1. A proceeding for damages under the provision of arts. 923 and 927 of the Code of Civil Procedure does not constitute a new suit, but is a mere sequence by way of enforcing the previous judgment. Such a proceeding is merely a continuation of the same suit to obtain the fruit of a judgment.</p> <p>2. Ancillary proceedings by way of executing a'judgment are not removable. Merely supplementary proceedings involving no new controversy with new parties do not fall within the law of removal.</p> <p>Removal of causes. For authorities bearing on various questions relating to the removal of causes, see the following editorial notes: Removal of criminal causes into Federal courts from other Federal or from state' courts, note to Jewett v. United States, 53 L. R. A. 568; Removal to another Federal district for trial of persons there charged with am, offense against the United States, note to Greene v. Henkel, 46 L. ed. U. S. 177; Stipulation by foreign corporation against removal of cause, note to Cone Export & Commission Co. v. Poole, 24 L. R. A. 289; Removal for diverse citizenship, local prejudice, or where Federal Constitution, statute, or treaty comes in question, note to Little York Gold Washing & Water Co. v. Keyes, 24 L. ed. 'U. S. 656; Delaware R. Constr. Co. v. Meyer, 25 L. ed. U. S. 593; Butler v. National Home, 36 L. ed. U. S. 346; Torrence v. Shedd, 36 L. ed. U. S. 528; Removal of actions against Federal officers, note to Davis v. South Carolina, 27 L. ed. U. S. 574.</p>

<p>Counsel fob Indigent Pekson Chabged with Cbime.</p> <p>1. The court should, if possible, appoint counsel to defend an indigent person charged with crime.</p> <p>2. An attorney so assigned cannot refuse to act.</p> <p>3. No attorney’s fee can be taxed as costs for the defendant, even though in such a case he be acquitted.</p>

<p>In Equity — Opinion on Exceptions to the Answee.</p> <p>1. An answer to a bill of complaint is not sufficient if it merely states a legal conclusion.</p> <p>2. A grant of letters to a personal representative in one country does not authorize him to act as such in another. He has no extraterritorial power. A foreign personal representative cannot sue in this jurisdiction without first taking out ancillary letters here.</p>

<p>Perjury.</p> <p>1. False statements upon material facts before a grand jury after being sworn by its foreman to testify is perjury.</p> <p>2. The grand jury is a competent tribunal, and tbe foreman is tbe proper one to administer tbe oath.</p> <p>Grand Jury. See note to Charge to U. S. Grand Jury, ante, p. 397.</p>

<p>Opinion on Motion por Writ op Ouster.</p> <p>On a motion for a writ of ouster to remove persons holding public offices, there should be a showing that there are other persons entitled to them, or to enter upon the discharge of their duties, and that the defendants refuse to surrender them.</p>

<p>Qpiinm on Motion to Amend Rule Ten.</p> <p>1. A rule allowing an attachment upon the ground that the defendant is a foreigner would be both impolitic and unjust in this jurisdiction, where there are so many foreigners with ample visible property.</p> <p>2. Actions by foreign attachments do not lie in this court,</p> <p>Attachment■ — nonresidents. As to attachment of property of nonresident, see editorial note to Cousins v. Alworth, 10 L. R. A. 504; as to what is nonresidence for the purpose of attachment, se'e editorial note to Munroe v. Williams, 19 L. R. A. 665.</p>

<p>Criminal Law — Jeopardy.</p> <p>If one be arraigned, and plead in a court of competent jurisdiction, a jury be impaneled and sworn, and he is put upon trial upon a valid information or indictment, he is in jeopardy; and once in jeopardy is a bar to a second prosecution for the same offense.</p> <p>Former jeopardy. As to former jeopardy by reason of the discharge of the jury in the prisoner’s absence, see editorial note to Upchurch v. Texas, 44 L. R. A. 694; as to former jeopardy in general, see editorial notes to United States v. Perez, 6 L. ed. U. S. 165; Re Lange, 21 L. ed. U. S. 872.</p>

<p>New Tbiae — Fobfeitube.</p> <p>1. A deed conveying land is not annulled ipso faoto by tlie failure to perform a condition subsequent concerning the price, unless tlie intent to work a forfeiture is clearly shown in it.-</p> <p>2. At common law, upon breach of condition of forfeiture, a demand of possession or re-entry was necessary.</p> <p>3. In this instance compliance with the subsequent condition had been waived.</p>

<p>Garnishment of Municipal Funds — Public Officer.</p> <p>1. A ministerial officer in official possession of public money is not subject to garnishment.</p> <p>2. The insular government, although it may sue and be sued, cannot be charged as garnishee as to a fund due through its disbursing officer to a municipality.</p> <p>3. Money devoted to the purpose of carrying on a municipal government cannot be seized by garnishment, as ‘it may be .necessary to its existence; but it can be compelled by mandamus to pay its debts.</p> <p>Mandamus — to compel payment of municipal debt. As to mandamus to compel payment of municipal debt by custodian' of municipal funds, see editorial note to Ray v. Wilson, 14 L. R. A. 773.</p>

<p>BANKRUPT’S Books — Omission of Property from Schedule.</p> <p>1. A bankrupt may be examined and cross-examined like any other witness.</p> <p>2. Failure to keep books of account from which a bankrupt’s true condition may be ascertained, must have been with a fraudulent intent to conceal his true financial condition and in contemplation of bankruptcy.</p> <p>3. The law does not contemplate that his books must be kept in the most scientific manner, but only so the condition of his affairs may be ascertained.</p> <p>4. An omission, fraudulently made, from a sworn schedule of property, constitutes a false oath, and is ground for refusing a discharge.</p>

<p>Jurisdiction — Bankruptcy—Local Law.</p> <p>1. A state or local insolvent law is not enforceable while a national bankruptcy law is in force.</p> <p>2. The proceeding's known as “suspension of payments” do not constitute a proceeding under the bankruptcy law of Porto Rico. They are merely new contracts between debtor and creditors.</p> <p>Bankruptoy. As to effect of national bankrupt law on state bankrupt and insolvent laws, see editorial note to Stui-ges v. Crowninshield, 4 L. ed. U. S. 529, where the authorities are presented and discussed. See also editorial note to State ex rel. Strohl v. Superior Court, 45 L. R. A. 177, on the relation of bankrupt law 'to assignments and insolvent proceedings under state laws.</p>

<p>SPECIFICATIONS IN OPPOSITION TO DISCHARGE — DEMURRER THERETO.</p> <p>1. Specifications should be so- concise, definite, and specific as to inform the bankrupt of the grounds of opposition to his discharge. It is not sufficient to merely follow the language of the statute.</p> <p>2. A general specification of failure to keep proper books of account is, however, sufficient to raise the question whether books were kept showing the condition of the bankrupt’s business.</p>

<p>Discharge from Bankruptcy — Jurisdiction of Referee — Appeal—Fail- ■ ure to Schedule Assets and Keep Proper Books of Account— Policies of Life Insurance.</p> <p>1. A referee in bankruptcy aids the court like a'master in chancery. He, however, has no jurisdiction to determine an application for a discharge.</p> <p>2. It is not required that the bankrupt’s books shall be kept in the most scientific manner, but only in such a way that his condition may be substantially ascertained; even if badly kept, it is no ground for refusing a discharge unless fraudulent purpose on the part of the bankrupt appears.</p> <p>3. A bankrupt is not guilty of having sworn falsely or of fraudulent intent in failing to enumerate in his schedule of assets two life insurance policies on his own life, payable only after ‘proof of his death, to his wife and children, which are not subject to assignment or cash surrender value, and on which nothing is payable to him in his lifetime, and in which he has no transferable or actual pecuniary interest, or any that could be reached by judicial process.</p> <p>4. Specifications must be clear and definite, and not vague and general. Great latitude is allowed in evidence in endeavoring to find a bankrupt’s assets; but the court or referee has a discretion as to how far this should proceed.</p>

<p>Opinion on Demueeer to the Declabation.</p> <p>The right to sue for death from negligence of a defendant, by persons en'¡titled to a support by the deceased, has not been changed by the new ¡Civil Code of Porto Rico, as article 1803 of it is in substance the Aame as article 1902 of the former Civil Code, and article 213 of it the same as article 143 of the old Code, so far as applicable to this ' case.</p>

<p>Equity — Bill foe Specific Performance — Demurrer—Adequate Remedy at Law.</p> <p>1. When specific performance is asked, courts will weigh with greater nicety contracts as to personalty than those relating to realty.</p> <p>2. If specific performance is sought as to a chose in action or things of a merely personal nature, it will not be granted if a complete remedy may be had at law by compensation in damages.</p> <p>3. This suit is not to enforce the specific performance of a contract further than to compel the defendant to execute evidence of it. If the obligation, by virtue of the contract, was not complete, equity will not aid to complete it. If complete, the party has an adequate remedy at law. . Whatever rights the complainants have, exist as- much without the instrument as with it.</p> <p>Specific performance. As to specific performance of contract for sale of stock in corporation, see editorial note to Rjmn v. McLane, 50 L. R. A. 501; as to effect of inability to perform, upon jurisdiction of chancery to decree specific performance, see editorial note to Morgan v. Bell, 16 L. R. A. 614.</p>

<p>Injunction — Preventive Embabgo — Liens on Realty.</p> <p>1. Complainants obtained a judgment at law in this court against Juan Gonzalez and Gonzalez & Company. Afterward, but before execution and levy by officers of this court, the present defendant, Esmoris & Company, levied an attachment from an insular court on the real property of Juan Gonzalez and Gonzalez & Company, the same being after-wards levied on and sold by the marshal of this court. The judgment in this court did not create a lien on the realty.</p> <p>2. As between liens arising in a United States court and in an insular court, the first created holds. In the absence of statute making judgments liens the first execution levied holds. At common law judgments are not liens on real estate.</p> <p>3. The order by a court to a register of property to enter a cautionary notice in his registry against sale of certain real estate creates a lien on it. The rendition of a judgment merely does not; but it is also created by the execution and levy.</p>

<p>Ik Equity Pleadings — Limitation—Laches—Exceptions ‘to Answer.</p> <p>1. A demurrer must be decided without evidence aliunde. Other pleadings cannot be resorted to in aid of it; and it is not settled, even -whether ' exhibits filed with the pleading can be considered in determining it.</p> <p>2. The possession of one tenant in common is the possession of all; and •limitation does not apply. ,</p> <p>3. The limitation will run, however, if the interest of the cotenant is denied by the others; and thenceforth he stands on the same footing as other parties in equity, and must show that he acted in good faith and with reasonable diligence to call a court of conscience into activity. If the bill shows on its face that he is not entitled, by reason of lapse of time and his own laches, to relief, advantage may be taken of it by demurrer. Each case of laches must, however, be judged by its own circumstances.</p> <p>4. An exception to a pleading or a part thereof should be overruled unless the same is entirely irrelevant.</p>

<p>In Equity — Plea to Jurisdiction Overkuled — Jurisdiction—Citizenship.</p> <p>1. One may denationalize or expatriate himself without acquiring citizenship in another sovereign state. One may become a citizen of a state only by compliance with its laws. Mere declaration of intention to become a citizen, or residence for years in a state, or incumbency of public office in that state, will not operate to make a citizen of an alien. No incomplete step towards naturalization is sufficient.</p> <p>2. The status of a woman as to citizenship is governed by that of her husband, and follows it. His nationality determines hers.</p>

<p>Compelling Party or Witness to Produce Books, Papers, etc., as Evidence.</p> <p>1. Where it is sought to compel production of papers, books, etc., they should be specified with all certainty practicable; but considerable latitude should be allowed.</p> <p>2. Although not a party to the suit, a person is not immune from being compelled to produce documents if they throw any light on the litigation.</p> <p>3. It must appear, however, that the books asked to be produced will in all probability be material evidence and germane to the issue. ■ Sufficient must appear to raise a presumption of their materialty; and a mere suspicion that they may contain material evidence is not enough. If the motion to produce be a mere fishing expedition, it will be denied.</p>

<p>•Bill for Injunction — Public Roads — Municipalities—Equity Plead* ing — Laches—Remedy at Law.</p> <p>1. An injunction to prevent an act should not be granted when the act has already been done. An injunction against a public corporate body which no longer has control of a road, its control by law having passed to another corporate body, to restrain the former from doing acts as to it, will not lie, as it would be of no avail.</p> <p>2. Each case of laches is governed by its own circumstances; but a court of equity will not aid a litigant who has not exercised reasonable diligence.</p> <p>3. When there is a complete and adequate remedy at law, equity will not interfere.</p>

<p>At Law — Contracts—Rents.</p> <p>1. A written contract may be rescinded or modified by a verbal contract upon sufficient consideration.</p> <p>2. The jury are the judges of the evidence, and must determine the rights of the parties from it. It is their province to determine if rent was due by defendant to plaintiff, and if so, how much.</p>

<p>DISBARMENT OE ATTORNEY.</p> <p>A charge against an attorney for misconduct not in the presence or hearing of the court should be made under oath. The court has power to regulate his professional conduct; but he should not be disbarred save for dear cause.</p> <p>Attorneys — disbarment of. As to disbarment of attorneys, see editorial notes to Fairfield County Bar ex rel. Fessenden v. Taylor, 13 L. R. A. 767; Ex parte Bradley, 19 B. ed. U. S. 2i4; and as to necessity of had or fraudulent motive to justify disbarment, see editorial note to Florida ex rel. Fowler v. Finley, 18 L. R. A. 401.</p>

<p>Equity Pleadings — Exceptions—Tax Title.</p> <p>1. Impertinence in equity pleading includes all matters not material. If evidence is not admissible to support them, they are impertinent.</p> <p>2. One relying upon a tax title must show that the law has been complied with in its obtention.</p> <p>Taxes — sale—title. In the following editorial notes the authorities relating to their respective subjects are presented: Validity of tax sale where nonpayment is due to mistahe or negligence of the tax officers, note to Gould v. Sullivan, 20 L. R. A. 487; Effect of tax sale on land held by life tenant, note to Estabroolc v. Royon, 32 L. R. A. 805; Effect on estates in reversion or remainder of a tax sale during the existence of a life estate, note to Ferguson v. Quinn, 33 L. R. A. 688; Necessity of immediate payment on a tax sale, note to Judah v. Brothers, 33 L. R. A. 481.</p>

<p>Ejectment — Res Judicata — Motion' for Peremptory Instruction for Defendants.</p> <p>A judgment in an action in an insular court, in substance identical as to subject-matter and parties with this suit, whether erroneous or not, is res judicata and conclusive.</p>