Volume 10 — Puerto Rico Federal Reports

<p>Collision.</p> <p>Admiralty — Vessel Overtaking Another.</p> <p>1. The rule is that a vessel overtaking another shall keep out of the way of the overtaken vessel, .</p> <p>Admiralty — Measure of Damage.</p> <p>2. The vessel at fault shall be responsible for the damage caused to the vessel not at fault, and to her cargo and seamen.</p> <p>Admiralty — Towing Vessel — Allowance.</p> <p>3. A launch towing a disabled vessel into port will be allowed the usual compensation for such service.</p> <p>Admiralty — Damages—Cost of Repairing.</p> <p>4. Where a vessel is not lost but only damaged and capable of being repaired, she will be allowed only a sum necessary to make her serviceable again.</p> <p>Admiralty — Damages—Necessary Losses of Captain and Others.</p> <p>5. In accordance with the general principle announced in Newell v. Norton, 3 Wall. 257, the necessary losses of the captain and others aboard the damaged vessel will be allowed.</p> <p>Admiralty — Preiglit—Allowance.</p> <p>6. It seems that the damaged vessel is entitled to the amount in possible freight lost between the time of the accident and the time she is put in commission; but where freight is claimed only for the period between the accident and the filing of the libel only this amount will be allowed.</p>

<p>Motion foe a New Teial.</p> <p>New Trial — Special Term at Ponce.</p> <p>1. The Island of Porto Eico is one judicial district, and it is no* divided into two divisions, and therefore after a trial of a ease at a special term at Ponce a motion for a new trial will be entertained at San Juan.</p> <p>New Trial — Special Issue — Damages.</p> <p>2. The question of damages having been determined once by a jury, the court will not grant a new trial for the purpose of having a new jury pass upon the single issue of the amount of damages.</p> <p>New .Trial — Questions of Pact — Jury.</p> <p>3. Questions of fact are for the jury to decide, and unless the jury disregards instructions of law, or there is something extraordinary in the handling of the facts by the jury, the court will not interfere.</p>

<p>On Application to Take the Oath of Allegiance and Be Consideked a Citizen oe the United States.</p> <p>Naturalization — Petition by One Born in Porto Rieo of Alien Parent.</p> <p>Section 5 of the Organic Act, approved March 2, 1917, should be construed in the light of the Naturalization Law, and the form of ■ the petition of a person born in Porto Rico of an alien parent should show, among other things, that the applicant is not a polygamist, nor a believer in the practice of polygamy, nor an anarchist.</p>

<p>Osr Motion During Trial for a Reference for an Accounting.</p> <p>Accounting — Reference.</p> <p>It is doubtful whether a motion' for a reference for an accounting can be considered in a Federal court; it certainly cannot be considered after a jury trial has been entered upon.</p>

<p>Demurrer to Cross Complaint.</p> <p>■Demurrer — Sufficiency Thereof — Jurisdictional Matters.</p> <p>1. A demurrer setting forth that there is a misjoinder of- causes of action in the complaint, and that it is indefinite and uncertain, must show in what respect there is a misjoinder and what parts are indefinite and uncertain, as a court will look ex mero motu only into jurisdictional matters.</p> <p>Cross Complaint — Counterclaim.</p> <p>2. Naming a pleading a cross complaint does not make it such, and the court will look into the real nature of the pleading. The distinction between a cross complaint and a counterclaim is not altogether clear, and where a cross complaint would oust the court of jurisdiction as to the difference between the amounts claimed, the defense should be by way of counterclaim.</p>

<p>Act Securing Effectiveness of Judgment.</p> <p>.Attachment — Dissolution.</p> <p>1. Section 13 of the act to secure the effectiveness of judgments, providing that the remedy shall be void in certain cases, refers to the attachment, that is, the actual levy on the property of the debtor, and not to the order of attachment.</p> <p>Attachment — “Suspension of Suit.”</p> <p>2. Section 13 of the act to secure the effectiveness of judgments, providing that the remedy shall be void “if the date fixed by the court for the hearing be extended on petition of the party,” refers to the hearing on the merits, and not to the hearing of a preliminary matter such as a demurrer. Certainly it does not apply where the hearing was suspended for the convenience of the court.</p>

<p>On Motion fob a Default.</p> <p>Time within Which to Amend or Plead.</p> <p>After a motion has been passed upon, the losing side is allowed, unless otherwise stated, five days in which to amend or otherwise plead.</p>

<p>Ik the Matter of Expense of Meals for Jurors.</p>

<p>Supersedeas Bond — Sureties—Qualification—Amount of Bond.</p> <p>The approval of a supersedeas bond must be by the judge himself, and cannot be left to the clerk. It is a matter within the sound discretion of the judge. A rule of this court which requires that sureties must bo the owners of real property is not inconsistent with the rule of the circuit court of appeals for the first circuit, which does not say that the sureties shall be owners of real property. Whei'e two persons are sureties on a supersedeas bond, each must he the owner of real property, free and clear of all encumbrances, of more than the amount of the bond, and this must be proved satisfactorily to the court.</p>

Statement of Facts. This is a petition for habeas corpus filed July 2, 1917, by the petitioner, Fajardo, alleging that he is confined in the district jail of the Mayaguez district in the municipality of Mayaguez, Porto Rico, under commitments on convictions from the local district court of Mayaguez in .three' cases numbered on the docket of said court 2813, 2814, and 2816, in wbicli be had been charged with withdrawing without payment of revenue license certain alcohol from…

<p>On MotioN to Direct a Verdict for Defendant;.</p> <p>Contract — Sale—Option.</p> <p>1. Where the alleged contract is' evidenced by correspondence it is for the court to decide whether it amounts to a .sale, an option, or is complete. Where part of the transaction consisted of oral interviews between the parties, it may become a matter for the jury under proper instructions.</p> <p>Contract — Essentials.</p> <p>2. Civil Code of Porto Rico, § 1228, requires consent, object, cause, or consideration. Code Napoleon, § 1108, adds capacity, but that is implied in the Porto Pico Code.,</p> <p>Option — Damages.</p> <p>.3. Damages naturally growing out of the breach of an option are recoverable just as fully as damages growing out of the breach of any other contract.</p>

<p>Interpretation oar Coxjrt Rule No. 51.</p> <p>Party as First Witness — Contradiction of Other Witness.</p> <p>The rule of this court, that a party used as a witness must be placed upon the stand at the beginning of the evidence for his side, was. designed to prevent the party being used to bolster up defective evidence of his witnesses, and does not apply to using the party afterwards to contradict the evidence of. the other party’s witness on a point.</p>

<p>On Motion to Direct a Verdict.</p> <p>Prescription — Exceptions.</p> <p>The Civil Code of Porto Rico provides that -actions are prescribed by the mere lapse of time specified, and it is not necessary to go further in the pleadings and deny matters which are in the nature of an exception to the prescription.</p>

<p>Motion of Plaintiff for Distribution of Fund.</p> <p>Fund in Court — Judicial Knowledge of Proceedings.</p> <p>1. The court cannot be ignorant of matters affecting a fund in court, even though they be in proceedings having different file numbers.</p> <p>Fund — Distribution.</p> <p>2. Claims against a fund in court can be established where the fund arises in a law case, and not from under any recognized heads of equity. Claims purely legal can constitutionally be established only in a jury trial unless a jury is waived under Rev. Stat. §§ 648, 649.</p> <p>Fund — The Undisputed Residuum.</p> <p>3. A verdict recovered, having been paid into court and different claims filed, the plaintiff will not he debarred from receiving such amount as is undisputed, and this whether by agreement or upon proper showing ex parte.</p>

<p>Re Supersedeas Bond on Appeal.</p> <p>Supersedeas — Bond.</p> <p>Appellate rules in the first circuit provide for a smaller super-sedeas bond where the property in controversy necessarily follows the suit. Where the plaintiff has an attachment, he is not entitled to greater security on appeal than he had before.</p>

<p>Taking Oath of Allegiance under § 5, Aar of Congress of March 2, 1917.</p> <p>Naturalization — Jones Act, § 5.</p> <p>The Jones Act of March 2, 1917, supplies a shorthand rvay of naturalizing native children of alien parents. Ability to speak English is not one of the requisites under this law; but the court-charges applicants that it will he to their advantage to learn English.</p> <p>Note. — For a review of authorities discussing the question as to test of intelligence to be applied in naturalization proceedings, see note in 22 L.R.A. (N.S. ),„1041.</p>

<p>Deju'bkbk TO COMI’LAniT.</p> <p>Contract — Allegations.</p> <p>1. A contract contains at least time, place, and what is agreed to, and these must he alleged in a complaint. •</p> <p>Foreign Guaranty — Local Attachment.</p> <p>2. The guaranty given in a foreign country does not take away tlie right to attachment in Porto Rico.</p> <p>•Opera Company — Damages.</p> <p>3. The manager of an opera company alleging damages from not being permitted to play must show that there would have been profit made if they had played.</p> <p>Note. — On loss of profits as element of damages for wrongful attreh-jment, see notes in 52 L.R.A. 33, and 46 L.R.A. (N.S.) 470.</p>

<p>As to Execution eoii Attokxeys’ Fees..</p> <p>Attorneys’ Fees — Fund in Court.</p> <p>L Where the plaintiff is dead insolvent, his attorney must recover upon the contract as it stands, and not upon quantum• meruit.</p> <p>Attorneys’ Fees — Judgment.</p> <p>2. Any reason affecting the enforcement of a judgment per se would affect the attorney also.</p> <p>Attorneys’ Fees — Release by parties.</p> <p>3. Where a judgment is for a recovery in the name of the plaintiff and also his attorney, a release by the plaintiff does not affect, the share of the attorney.</p> <p>Judgment — Affidavits.</p> <p>4. A judgment imports the highest verity and cannot be affeeted by subsequent affidavits.</p>

<p>jEquity Practice — Supplemental Bill.</p> <p>1_ The bill in the nature of a supplemental bill has been abolished by the new equity rules, its place being taken by a supplemental bill. '</p> <p>New Plaintiffs — Amendment.</p> <p>2. Where new plaintiffs are admitted by amendment the nature of the title under which the substitution is made should be shown by the bill.</p>

<p>Petition foe Writ of Error.</p> <p>District Court — Appeal.</p> <p>I. Circuit court of appeals has appellate jurisdiction to review upon writ of error final decisions in all cases than those in which writs are taken direct to the Supreme Court, as to jurisdiction, prize, and constitutional questions.</p> <p>Writ of Error — Practice.</p> <p>2. Tiie theory of a writ of error is that it is issued by the appellate court; and. although in practice it is issued in the lower court in the name of the president and attested by the chief justice, it is the writ of the court of review. It must be accompanied by assignment of errors and appropriate .bond, which cannot be criticized by the court, provided they raise real final questions.</p> <p>Writ of Error — Final Decision.</p> <p>3. Where it is .doubtful whether a decision is final, this court may nevertheless issue the writ and let the point be determined by a motion to dismiss above.</p>

<p>Matter of Custody of Appeal.</p> <p>Habeas Corpus — Appeal—Custody.</p> <p>Upon appeal from a denial of the writ of habeas corpus in the district court the prisoner will be remanded to his original custody, but in order to give the circuit court of appeals an opportunity to revise the matter of custody, the execution of this order is postponed two weeks.</p>

<p>As to Oath of Allegiance Under Jones Act.</p> <p>Oath of Allegiance — Jones Act — Soldier.</p> <p>Where a man has joined the French Army he cannot he declared an American citizen under § 5 of the Jones Act, which requires residence in Porto Rico, even although he be in Porto Rico on furlough.</p>

<p>Natubamzation of Eobmeb Gebman.</p> <p>Naturalization — War with Germany.</p> <p>Where a man born in Germany has made due final proof of every-. thing required by naturalization laws and the court is fully satisfied of his thorough Americanism, he is admitted as citizen despite the prevalent war with Germany.</p>

<p>Coming into Equity with Clean Hands.</p> <p>Joint Resolution May 1, 1900 — Ownership 500 Acres.</p> <p>1. The joint resolution of May 1, 1900, forbidding agricultural corporations to own or control over 500 acres of land, does not prohibit the acquisition of land, but aims at the extinction of the title. The method of doing this must be direct, and not collateral.</p> <p>Clean Hands — Ultra Vires Acts.</p> <p>2. The rule that one must come into equity with clean hands has no reference to matters not embraced within the issue. It does not mean that only angels can come into court.</p> <p>Note. — On right of private persons to question the power of a corporation to take or hold property, see note in 32 L.R.A. 293.</p>

<p>Oath of Allegiance Under § 5 of the Jones Act.</p> <p>Naturalization — Jones Act — Place of Oath.</p> <p>1. Congress has limited the terms of the Federal district court to certain places, hut this does not prevent the judge and clerk from taking the oath of allegiance under § 5 of the Jones Act in any other place within the district. The judge has power to administer oath at any place within the district.</p> <p>Same — Vieques.</p> <p>2. While the island of- Vieques has had, to a certain extent, a separate history from Porto Rico, there can he no question that it was Spanish and passed to the United States by the Treaty of Paris.</p> <p>Natural Son — Lack of Recognition.</p> <p>3. The Spanish law covers natural children unrecognized by the father. If there has been no such recognition and the father is dead, the citizenship of his mother will be taken into account as fixing his own.</p>

<p>Application fce Continuance.</p> <p>Continuance — Illness of Attorney.</p> <p>1. A ease in court is made up of both parties and attorneys. On account of the importance of the attorney, a continuance will he granted in case of his illness or disability.</p> <p>Continuance — Terms.</p> <p>2. Continuance will be granted upon such terms as the justice of the case requires, even bond for payment of the possible judgment. Solvency of the parties cannot be taken much into account. Terms of bond, given in Dudley v. Witter, 51 Ala. 456, adopted.</p>

Statement of Facts. Tbe bill in tbis case was filed July 31, 1917, and a temporary restraining order was issued thereon. The bill, which is sworn to, alleges that plaintiff on hi arch 15, 1917, contracted with the defendants for the purchase of 6,000 jute coffee bags at twenty-six and a half pence to be delivered about July, 1917, and on April 27, 1917, paid $3,000 on account of the purchase.

<p>Citizenship of Plaintiff.</p> <p>Citizenship — People of Porto Rico.</p> <p>1. A state is not a citizen within the procedure law. Where the people of Porto Rico bring a suit they must be held to have brought it for all proper purposes of litigation, including removal to the Federal court. A state cannot prohibit removal of suits from local courts.</p> <p>Note. — Removal of cause to Federal court because of separable controversy; scope and limitations of statutes as to states, see note in 5 L.R.A. (N.S.) 56.</p> <p>Removal of Suits — United States District Court for Porto Rico.</p> <p>2. Where the Judicial Code, § 28, provides for jurisdiction “by this title,” it must be construed as embracing the United States district court for Porto Rico under § 41 of the Jones Act. Wenar v. Pohl, 1 Porto Rico Fed. Rep. 37, overruled.</p>

<p>CONDITIONAL CONFIRMATION OF REFEREE’S REPORT.</p>

<p>Suit in Ejectment bv Cotenant.</p> <p>Ejectment — Prior Suit to Set Aside Transfer.</p> <p>1. Where an executor has set apart to himself property of the estate of the decedent, the heir may sue him directly and not be forced first to set aside the conveyance.</p> <p>Reivindicación — Part Interest.</p> <p>2. Under the civil law a co-owner can sue for a part of the common property.</p> <p>Prescription — When Begins to Run.</p> <p>3. Prescription, like limitations, does not begin to run until there is someone to sue or someone to be sued. Registration of deed unaccompanied by possession of the land does not begin the running of prescription.</p>

Statement of Facts. Tbe bill' of complaint was filed March 21, 1917, and, after a motion to dismiss was denied, tbe defendant filed answer July 9, 1917. Tbe bill shows that tbe parties are brothers and equal owners of tbe Hacienda Esperanza, a sugar-cane plantation near Manati. That after tbe termniation of a lease, tbe defendant as tbe only one of tbe three living in Porto Pico, took charge March 11, 1915, and operated it for joint account mp to August 1, 1916.

<p>Poem or Libel.</p> <p>Admiralty — Personal Oath to Libel.</p> <p>1. Personal oath of the libellant is not essential where the libel-lant is practically inaccessible.</p> <p>Proctor — Form of Verification.</p> <p>2. There is no special form required by law, but the oath must be . to the truth of the facts stated. The form in Benedict’s Admiralty</p> <p>followed.</p> <p>Libel — Damages.</p> <p>3. Admiralty proceedings are more informal than others, and particularities in pleadings less insisted upon as to damages and otherwise.</p> <p>Party in Interest — Assignee of Charter Parties.</p> <p>4. The assignee of the charter .party is the party in interest, and should bring the proceeding in admiralty for violation.</p> <p>Admiralty — Alternative of Tort or Contract.</p> <p>5. A libel which can be construed .as either in contract or in tort cannot be said to join contract and tort.</p> <p>Admiralty — Contract and Tort.</p> <p>6. Contract and tort may be joined in a libel, the one depending upon the nature of the contract and the other upon the place of the tort.</p> <p>Admiralty — Pleading.</p> <p>7. A statement of sale of goods in order to show that the ship cannot deliver them is a detail of the damages, and not impertinent.</p>

<p>Order as to Taxes.</p> <p>Taxes — Three Years.</p> <p>The lien or privilege for taxes under the law of Porto Rico ia limited to three years.</p>

<p>INJUNCTIVE ORDER.</p>

<p>.Opinion and Order as to Bank Claim.</p> <p>Mortgage — Assignment.</p> <p>1. If a mortgage is alleged to be held as collateral to a certain note, its value above the amount of the note belongs to the maker.</p> <p>Prescription — Collateral.</p> <p>2. A clause in a note making the collateral subject to other debts is barred in six years where the new debts to which it is sought to extend the collateral make no mention of it.</p> <p>Collateral — Notice.</p> <p>3. The representative of the debtor is entitled to notice of a claim to extend the collateral to other debts.</p>

<p>As to Cancelatiox or Fraudulent Deed.</p> <p>Citizenship — Municipal Courts.</p> <p>1. The treaty of Paris provides for declaration of citizenship in Porto Eico before a court of record, but after this length of time a declaration before a municipal court will not be disturbed.</p> <p>Jurisdicti on — Amount.</p> <p>2. If the value appears from the evidence to be over the jurisdictional amount of this court, it is sufficient.</p> <p>Adequate Remedy at Law — Reivindicación.</p> <p>3. Where clouds on the title must be removed before successful recovery, the remedy of reivindicación fixed in the Civil Code is not adequate.</p> <p>Prescrip ti on — Eraud.</p> <p>4. A suit to set aside a. fraudulent conveyance prescribes within four years in analogy to the provision in § 1268 of the Civil Code for a suit of- nullity.</p> <p>Note. — For a review of authorities on the question of effect of remedy at law upon equitable' jurisdiction to remove cloud on title, see note in 12 L.R.A. (N.S.) 49.</p> <p>Mortgage Law — Second Purchaser.</p> <p>5. A second purchaser under the Mortgage Law of Porto Rico is protected by the lack of knowledge of his immediate grantor.</p>

<p>Petition to Set Aside Adjudication.</p> <p>Bankruptcy — Lack of Allegation of Insolvency.</p> <p>1. An application in bankruptcy which interferes with an attachment is notice to the attaching creditor, and after adjudication he cannot set up the defect of no allegation of insolvency at the date of the act of bankruptcy.</p> <p>Amendment — Judgment.</p> <p>2. A petitioner who does not allege that the bankrupt was insolvent at the time of the attachment complained of takes an amendable defect, and will not he heard after adjudication.</p>

<p>Vendor’s Lien under Local Law.</p> <p>Lien — Preference.</p> <p>1.The preference of the Civil Code has been held to be substantially the same as the lien of the common law.</p> <p>Receivership — Contracts.</p> <p>2.The receiver is not bound by a contract of the original owners, and may within a reasonable time adopt or disaffirm it. On adoption he holds the property subject to existing rights; if he affirms, he is bound to nothing except to return the property if in his possession.</p> <p>Preference — Civil Code, § 1823.</p> <p>3.Section 1823 of the Civil Code declares a preference in favor of the seller against specific personal property up to the purchase price, and this remains where the receiver changes the form of the property by converting it into money. Secus if the receiver has paid the money over to creditors.</p>

<p>Administration Expenses and Liens.</p> <p>Bankruptcy — Priority of Administration Expenses.</p> <p>Under § 64 of tlie Bankruptcy Act, costs of administration do not apply to property which does not become a part of the estate, except those of preservation and administration. As the law enforces valid liens, the expense must be covered by the estate.</p>

<p>As to Dependant’s Examination op Seized Lotteby Tickets.</p> <p>Presumption of Innocence.</p> <p>1. Presumption of innocence is no presumption that a man has ■ not been actually indicted and will have to go through a trial. It</p> <p>must not be presumed to the extent of letting a man commit another crime, as by collecting money after examining lottery tickets taken by the government.</p> <p>Practice — Control of Evidence.</p> <p>2. It must be a clear case of necessity which would authorize the court to compel the government to show its eyidence to the defendant in order to aid in his defense.</p> <p>Lottery Law — Policy of Government.</p> <p>3. The policy of the United States in lottery legislation is not only the punishment and reformation of the defendant, but the suppression of a great public evil, and this policy is of more importance in Porto Rico than on the mainland because of previous prevalence of lotteries under Spanish government.</p>

<p>Liability of Surety in Absence of Principal.</p> <p>Bond — Place of Contract.</p> <p>1. The place where a contract is made depends not upon where it is written and signed, hut where it is delivered as consummating the bargain, and where it is to be carried out.</p> <p>Suit on bond — Omission of Principal.</p> <p>2. Under § 1731 of the Civil Code of Porto Eico recourse must first be had to property of the principal, but under the next section this does not apply where the principal, having gone out of business, cannot be sued. Particularly is this true in Porto Eico; under § 1723 of the Givil Code of Porto Eico the surety makes himself jointly liable with the principal.</p> <p>Bond — Time of Acceptance.</p> <p>3. A telephone company cannot set up a defect as to the time of the acceptance of the bond under which it obtained its rights.</p> <p>Government Bond — Damages.</p> <p>4.' Under the Porto Rico Civil Code, §§ 1120, 1121, the penalty of a government bond is regarded in the nature of liquidated damages, ■whether any actual loss is shown or not.</p> <p>Bond — Prescription.</p> <p>5. In the case of a bond for the construction of a telephone system, the prescription in Porto Rico is fifteen years for a personal action under Civil Code, § 1865.</p> <p>Principal and Surety' — Property.</p> <p>6. Under Civil Code, § 1733, the surety may require levy to be had against the property of the principal, and no allegation on the subject is needed in the complaint filed by a creditor.</p>

Statement of Facts. Tbe bill in this cause was filed June 4, 1917, and seeks to set aside as null and void a certain mortgage dated June 1, 1914, made in tbe name of tbe plaintiff by tbe defendant Perez as bis attorney in fact, and also to set aside tbe record of said mortgage in tbe registry of property of Mayaguez. Tbe property described in tbe mortgage is tbe Hacienda Mallorquina, a coffee property in tbe municipality of Añasco, which is described.

<p>Re Joinder of Offenses under Espionage Aot.</p> <p>Criminal Law — Joinder of Counts.</p> <p>1. The question of joinder is one of judicial discretion, and is a subject of review where improvidently exercised.</p> <p>Espionage Act — Subjects.</p> <p>2. The Espionage Act embraces many subjects having no relation to each other except a general hearing upon the war with Germany. An indictment for several offenses is to be construed in connection with Revised Statutes, § 1024.</p> <p>Espionage Act — Counts.</p> <p>3. Each count is theoretically a separate indictment, and a general verdict is proper if any count is good, but separate punishments are lawful on the several counts. Sentences may he successive.</p> <p>Joinder of Counts — Embarrassment to Defendant.</p> <p>4. The discretion of the court as to joinder must be exercised so that consolidation will constitute no embarrassment to the defendant in preparing his case. Offenses connected together and of the same class may be joined.</p> <p>Counts — Allegation of Ealsity.</p> <p>5. An allegation that statements are false is sufficient.</p> <p>Espionage Act — Causing Insubordination.</p> <p>6. Allegations which cause insubordination or disloyalty need not be false in order to be indictable. Statements with intent to interfere with the success of the forces must be shown to be false.</p> <p>Note. — Authorities passing on the decisions under the Espionage Act of June 15, 1917, are collated in a note in L.R.A.1918F, 410.</p> <p>War Legislation — In Pari Materia.</p> <p>7. Tlie different statutes constituting the war legislation are to be construed in pari materia. Discretion of the Postmaster as to excluding disloyal publications from the mail cannot ordinarily be revised by the courts. Legislation on the subject of war is as constitutional as legislation on commerce or any other subject. The Constitution grants clearly the full exercise of war powers and within their sphere these are paramount. There is but one way of waging war and that is to make it the supreme business of the state, in battle and in all spheres of activities. A Democratic legislature may enact laws to be carried out by forcible measures for war purposes. This principle does not prejudge the question of innocence of a particular defendant. Some discussions proper in times of peace are objectionable in times of war.</p>

<p>As to Attorneys’ Fees.</p> <p>Trustee — Attorneys’ Fees.</p> <p>A trustee can tie allowed the actual attorney’s fees paid for the benefit of the estate; and when it is not clear whether the services are rendered to him individually or to the estate, he will not be reimbursed.</p>

<p>Re Amendment of Swobn Answeb.</p> <p>Sworn Answer — Amendment.</p> <p>Under its power to allow amendment in the furtherance of justice, the court will allow a sworn answer to be amended where it is shown that the facts of the case were not fully known at the time of the original answer, and reliance of the defendant upon the interpreter for facts is alleged.</p>

<p>Use of Water — Legal.</p> <p>1. Where a decree declares the use of the water to he legal, but the public is not made a party, the decree will be construed as meaning a proper use between the parties, and not a legal use against the world.</p> <p>Water — Party Increasing Plow.</p> <p>2. A party cannot complain in regard to irrigation, water if he receives as much as he is entitled to, although another takes from a lower point the net amount of what he added to an upper point.</p> <p>Note. — For a review of authorities passing on the question of correlative rights of upper and lower proprietors as to’ use and flow of water in stream, see note in 41 L.R.A. 737.</p>

<p>Settikt. Aside Default.</p> <p>Setting Aside Default — Lack of Notice.</p> <p>Where a default was entered after counsel had retired from the ease, and the client shows that he did not receive notice of the retirement, the default will be set aside.</p>

<p>MEMORANDUM AS TO SENTENCE.</p> <p>Criminal Law — Reformation.</p> <p>1. The question of reformation can enter only slightly in political cases; it- concerns rather prison methods than the sentence itself.</p> <p>Punishment.</p> <p>2. The primeval object of sentences is punishment of the offender, whether by fine, imprisonment, or both.</p> <p>Punishment — Deterring Offender.</p> <p>3. Where the offense is committed through a newspaper in Spanish among a people, on account of the language, outside of Amer-can influences, the question of deterring future offenders is of a special force in war times.</p> <p>Imprisonment — ’Length.</p> <p>4. In the case of a political offense it is important that the offender be restrained for the remainder of the war and including a time thereafter during which political readjustment would be in progress. The question of the press has always been a serious one in Latin countries. The faithful co-operation of the press is very important in time of war. There must be no attacks on the military forces by persons protected by the flag.</p> <p>Penitentiary — San Juan.</p> <p>5. Imprisonment in the penitentiary at San- Juan cannot secure the best results, and in the case of imprisonment exceeding oné year the court will select Atlanta penitentiary for political prisoners. Each count being a separate serious offense, the sentence of each should ordinarily exceed one year so as to secure penitentiary imprisonment.</p>

<p>On Motion foe New Trial.</p> <p>Espionage Act — Intent.</p> <p>1. Tlie Espionage Law is designed to punish the intent, and the result of the intent is not material. The intent is for the jury, ■who must draw it from all the circumstances of the transaction, for it is more than the statements of a printed paper. A person residing in Porto Eieo, whether citizen or not, owes temporary-allegiance to the United States and cannot be permitted to stab the country in the hack.</p> <p>Note. — On decisions under the Espionage Act of June 15, 1917, see note in L.R.A.191SE, 410.'-</p>

<p>Jurisdiction on Citizenship.</p> <p>Jurisdiction — Citizenship.</p> <p>The general rule that jurisdiction of the Federal court depends upon diversity of citizenship applies in the district court for Porto Rico; and a complaint must aver difference of state citizenship, as well as not being domiciled in Porto Rico.</p>

<p>Wages of Eobeign Seaman.</p> <p>Sailors — Costs on Rule to Show Cause.</p> <p>1. It is not necessary under Rev. StaL § 4546, for a sailor to file a stipulation for costs before the rule of the ship to show cause as to wages.</p> <p>Same — Judge 3 Miles Away.</p> <p>2. Ihe statute does not require the sailor to apply, to a local official, but he may, if he prefers, apply to a judge residing more than 3 miles from the vessel.</p> <p>Sailor’s Discharge — Essence of Contract.</p> <p>3. A sailor not reporting for duty upon notice may properly he discharged by the captain.</p>

<p>Lien cot Local Attachment.</p> <p>Bankruptcy — Prior Attachment.</p> <p>The pendency of an attachment proceeding does not oust the jurisdiction of the bankruptcy court to determine whether and how far the attachment is valid.</p>

<p>Property Loaned to Bankrupt.</p> <p>Bankruptcy — Loaned Property.</p> <p>1. Property loaned to the bankrupt is not embraced in proceedings against him.</p> <p>Loan or sale — Binding of Beferee.</p> <p>2. Where the question is whether a transaction was a loan or a sale, the finding of the referee, who has an opportunity to inspect the original papers, will not ordinarily be disturbed.</p>

<p>Jurisdiction in Accident on Board Ship.</p> <p>Admiralty — Employer’s Liability Act.</p> <p>1. The Federal courts have exclusive cognizance of admiralty and maritime matters saving the common-law remedy; and common law as so used means the local municipal law, whether it be derived from the English common law or from the Spanish civil law.</p> <p>Same — National Employer’s Liability Act.</p> <p>2. The National Employer’s Liability Act of 1906 is in force in the territory of Porto Rico, although held to be unconstitutional in the states, and excludes local legislation.</p> <p>Note. — On applicability of the Federal Employers’ Liability Act or state ' Compensation Acts to injuries within admiralty jurisdiction, see note in L.R.A.1938C, 474.</p>

<p>As to Setting Aside Judgment by Default.</p> <p>Final Decree — Setting Aside.</p> <p>Where a final decree has been set aside for ivant of notice, an application will not be entertained to review this order- on facts which could have been presented on the hearing of the motion to set aside.</p>

<p>Pleadings as to Acceptance oe Bill.</p> <p>General Commercial Law — Spanish Code oí Commerce.</p> <p>1. The general commercial law is enforced by the Federal courts, and is superior to local law, whether that be derived from the Spanish Code of Commerce or otherwise.</p> <p>Bill of Exchange — Drawer and Drawee.</p> <p>2. In a suit of the drawer against the drawee of a bill of exchange who has accepted it, the Porto Eico Code of Commerce does not differ from the American as to the liability involved.</p> <p>Note. — For a discussion of the question of general principles of commercial law as opposed to local law applicable to negotiable paper, see notes ih 61 L.E.A. 193, and 19 L.E.A.(N.S.) 6G6.</p>

<p>Supplementary Proceedings.</p> <p>Supplementary Proceedings — When Applicable.</p> <p>The Eederal proeedure is that of the common law modified by the Code of Civil Procedure, itself of common-law origin. Supplementary proceedings under § 269 of the Code of Civil Procedure applies where the execution has been returned unsatisfied.</p>

<p>Motion to Set Aside Service.</p> <p>Suit against Corporation — Service of Agent.</p> <p>Nevers v. Central Altagracia, 3 Porto Rico Fed. Pep. 496, followed as to effectiveness of service of managing agent, as well as service of agent appointed for service under local statute.</p> <p>Note. — Authorities reviewing the question as to who is managing agent of foreign corporation for purposes of service of- process are collated in notes in 23 L.R.A. 496, and 4 L.R.A. (N.S.) 460.</p>

<p>Reduction of Attachment Bond.</p> <p>Attachment Bond — Application to reduce.</p> <p>- Where an attachment bond has been given under the flexible Porto Rico statute, a motion to reduce will not ordinarily be entertained before the appearance of the defendant.</p>

<p>Domicil in the Federal Procedure.</p> <p>Federal Jurisdiction — Domicil.</p> <p>Citizenship, residence, and domicil are not synonymous, and Federal jurisdiction in Porto Rico depends upon citizenship and domicil. Domicil has the two elements of residence- and intention to remain/ Domicil of origin continues until changed.</p> <p>Note. — Gaining new domicil or residence before abandoning occupation of old residence, by purchasing or hiring property in new locality with intention of establishing permanent résidence there, see note in 33 L.R..A. (N.S.) 766.</p>

<p>Corporate Ownership of Over 500 Acres in Porto Rico.</p> <p>Ownership of More than 500 Aeres — Collateral Attack.</p> <p>. The joint resolution of Congress' of May 1, 1900, forbidding agricultural concerns to own more than 500 acres of land, cannot be taken advantage of in an' answer, but requires special pleading.</p>

<p>Ee Charge of Cotjbt in Bill of Exceptions.</p> <p>Bill of Exceptions — Charge of Court.</p> <p>The charge of court is that filed, and signed by the judge. The stenographer does not make the charge, and his notes are subject to revision by the court from recollection and evidence as to -vt'hat was actually given to the jury. Exceptions must be taken to that official charge. If a party thinks the charge is different, he must establish such charge by a special proceeding. In the case at bar the court sends up the original paper filed, consisting of the stenographer’s notes, with pen and ink corrections of the judge.</p>

<p>Motion to Quash; Service.</p> <p>Procedure — Contents of Summons.</p> <p>1. The initial proceeding in Federal courts of law are governed by §§ 911-913 of the Revised Statutes, providing that the writ shall issue to the marshal, and not by the provisions of the local Code of Civil Procedure.</p> <p>Same — Place of Service.</p> <p>2. The return of the marshal that he served the writ on the defendant personally at San Juan in this judicial district is sufficient.</p>

<p>As to Stenographer of District Attorney.</p> <p>Stenographer- — Power of the Court.</p> <p>1. While the Jones Act authorizes the court to appoint an official stenographer, no salary has- been fixed, and the Department of Justice provides the district attorney with a special stenographer for criminal cases. There might be instances in which the court would compel this special stenographer to supply notes taken in a criminal Case.</p> <p>Record on Appeal — Bill of Exceptions.</p> <p>2. The record of pleadings for appeal or other review is made up by the clerk, and not controlled by the judge. The bill of exceptions embraces all other rulings of the court, rulings upon -evidence and the changes excepted to. When the bill of exceptions is signed the court has no right to change it without the consent of both parties.</p> <p>Bill of Exceptions — Establishment.</p> <p>3. If a bill of exceptions is not signed there is none, unless the party aggrieved establishes a bill to the satisfaction of the upper court. Tendering a bill and having it approved, however, waives any such right.</p>

<p>Imposing of Sentence.</p> <p>Lottery Law — Foreign Lottery.</p> <p>1. The Antilottery Law applies to investment of money in lotteries in foreign countries just as much as to domestic ones.</p> <p>Same — Punishment.</p> <p>2. The punishment for sending a letter relating to a lottery to a man should be apportioned to the defense. The judge cannot consider his personal relations to the defendant provided they do not amount to interest.</p> <p>Evidence — Acquired through Censorship.</p> <p>3. The fact that evidence in a case was acquired through the operation of the war censorship is not material. The censorship is constitutional and wise, and evidence so discovered can be used whether relating to war activities or any other offense.</p> <p>Same — Punishment.</p> <p>4. The fine imposed may well be the amount of money sought to be invested in the lottery tickets and light imprisonment for the first offense, with warning that this does not control in future cases.</p>

<p>On Application fob a Preliminary Injunction.</p> <p>People of Porto Rico — Commissioner of Health.</p> <p>1. In selecting a site for a hospital, the Commissioner of Health acting under special law may be sued.</p> <p>Same — Civil Code, § 1804.</p> <p>2. Under the civil law a state is liable for the acts oí a special agent who may be employed or discharged at will, but not for the acts of á regular official.</p> <p>Sovereign — Tortious Agent.</p> <p>3.If an agent of a sovereign commits a tort he is liable personally, and it is not to be regarded as a suit against the sovereign.</p> <p>Law Limiting Suit to Local Court — Unconstitutional.</p> <p>4. The territory of Porto Pico cannot limit its suability to its own courts. The provision will be widened to include the Federal courts.</p> <p>People of Porto Rico — Health Questions.</p> <p>5. Quoire, whether the people of Porto Rico should be called in to a suit affecting the location of a health hospital.</p> <p>Tuberculosis — Location of Hospital.</p> <p>6. A tuberculosis hospital has to be established somewhere, and is not a nuisance per se, but it may be such if established in a residence neighborhood; and on a preliminary hearing the balance of convenience is an important consideration.</p> <p>Hospital — Local Discretion.</p> <p>7. A court cannot interfere with the discretion of the administrative officials, but this does not apply to the erection of a hospital on an improper site; but the court w’ill not go into the question of what other eligible sites there may be.</p> <p>Note. — Authorities passing on the question as to whether location of hospital in residential section is a nuisance are collated in notes in 29 L.R.A.(N.S.) 49, and 52 L.R.A.(N.S.) 1032.</p> <p>Sale of Property — Individual Kiglit.</p> <p>S. Under the civil laiv, where both vendor and vendee execute a conveyance before a notary, if tlie vendee cannot properly purchase;, it is not error to forbid the whole transaction.</p> <p>Chancery — Nuisance at Law.</p> <p>9. If it is apparent that there is a nuisance, it is not necessary for a court of chancery to await the reference to a court of law. Precedents in northern climates are not satisfactory guides for conditions in tropical places. Each case must be. judged by itself.</p>

<p>Following Proceeds oj? Personal Property.</p> <p>Personal Property — Preference.</p> <p>Quare, whether preference for purchase money given by local statute applies where the property has been sold.</p>

<p>Service of Silent Partner.</p> <p>Bankruptcy — Special Partner.</p> <p>The in'actice in bankruptcy is for the nonassenting partner to be served as in the case of an involuntary proceeding. This applies also to a silent partner in the partnership known in Porto Rico as sociedad en comandita.</p>

<p>Good Father op a Family.</p> <p>Good Father of a Family — Independent Contractor.</p> <p>1. Quiere, whether the defense of the diligence' of a good father of a family under Civil Code, § 1804, applies to the selection of an independent contractor.</p> <p>Good Father of a Family — Pleading.</p> <p>2. If the defense of a good father of a family is not sufficiently set out in the answer, the defect cannot he taken advantage of on a motion for a new trial.</p> <p>Good Father — Roman Law.</p> <p>3. The principle of a good father of a family goes hack to the Twelve Tables as modified by Christianity, and in this form contained in the Theodosian and Justinian Codes.</p> <p>Good Father — Visigothic Code.</p> <p>4. The subject of negligence was not contained in the Visigothic Law.</p> <p>Good Father — Partidas.</p> <p>5. The Partidas mark a return to the principles of Roman law, and the general features of patria potestas were enforced.</p> <p>Good Father — Code Napoleon.</p> <p>6. The liability of the master seems to be taken by the modern Spanish Code from the Code Napoleon, which borrowed it from the Coutume de Paris.</p> <p>Note. — For authorities passing on the question as to who is ah independent contractor, see notes in 65 L.R.A. 445, and 17 L.R.A. (N.S.) 371.</p> <p>Independent Contractor — Vice Principal.</p> <p>7. The principles of independent contractor and of’Vice principal apply under the Porto Eico Civil Code; since they mean in the one case that the defendant did not commit the act and in the other . that the principal is liable for the course of business.</p>

<p>Arrest — Warrant.</p> <p>America, including Porto Rico, is a country of law, not of force;</p> <p>Note. — On liability of officer for making arrest with a warrant, see nóte in 51 L.R.A. 206.</p> <p>and except in ease of committal of a crime called “in flagrante de-licto” a warrant is necessary for arrest. The Army and Navy cannot make arrest except when called upon by the court.</p>

<p>Demurrer as to Joinder.</p> <p>Demurrer — General.</p> <p>1. A general demurrer will not Ibe considered.</p> <p>Reivindicación — Property and Damages.</p> <p>2. Under tie Porto Rico Code of Civil Procedure, damages may be joined with a claim for recovery of property.</p> <p>Misjoinder — Insufficient Allegation.</p> <p>3. Insufficiency in allegations cannot be claimed under a demurrer for misjoinder.</p> <p>Amendment — Omission of Party.</p> <p>4. Where a case from the insular court is rewritten to conform to Federal practice a party may be omitted, as this is a species of amendment.</p>

<p>Naturalization.</p> <p>Naturalization — United. States Marines — Residence.</p> <p>1. The Act of June 30, 1914, as to naturalization of marines does not require residence within the district. It will be seldom that members of the Army or Navy could be residents of any judicial circuit. Jurisdiction of the person is acquired when he comes before the court.</p> <p>Note. — For authorities passing on the question as to powers of state legislatures and state courts in respect to naturalization, see note in 30 L.R.A. 761.</p>

<p>Employer’s Liability.</p> <p>Charge — Error without Injury.</p> <p>1. If the charge as a whole shows that the elements of' the case are properly taken into account, a passage possibly misleading if taken only by itself will not be error.</p> <p>Contractor — Servant.</p> <p>2. Where a specific piece of work is accomplished entirely according to the workman’s own ideas, the workman is a contractor; but where lie docs the will of the employer in the details of the work, and not merely the result, he is a servant. The defense of independent contractor is not subject to the rule of good father of a family except as to the selection of the contractor.</p> <p>Workman — Holding up Coal Chute.</p> <p>3. Holding up a coal chute is not part of the risk assumed by a workman unloading coal, and an unheard order as to changing the-apparatus does not affect him.</p> <p>Vice Principal — Fellow Servant.</p> <p>4. Where under appropriate instructions the facts are left to the jury to determine whether an employee is a vice principal or a fellow servant, the verdict will not be disturbed.</p> <p>Note. — For authorities discussing the question as to who are independent contractors generally, see comprehensive notes on all phases of the question, in 65 L.E.A. 445, and 17 L.E.A. (N.S.) 371.</p> <p>Doctrine that all superior servants are vice principals as regards their subordinates is discussed in a note in 51 L.E.A. 539.</p> <p>Fellow Servant- — Porto Rieo.</p> <p>5. The doctrine of fellow servant comes from the common law,, and does not apply in Por'to Rico unless adopted by statute or judieially made a part of the general jurisprudence of the country.</p>

<p>Amount at Issue in Ejectment.</p> <p>Motion to Eemand — Unlawful Detainer.</p> <p>1. A motion to remand because a suit is for unlawful detainer will not be entertained until tlve pleadings develop whether the procedure is in ejectment or unlawful detainer.</p> <p>Amount in Controversy — Jurisdiction.</p> <p>2. Where the verified petition for removal states that the amount in controversy exceeds $3,000 and the agreed statement of facts shows that the annual rental is about $1,000, the jurisdiction ia not ousted.</p>

<p>Suit agaikst Porto Pico.</p> <p>Public Service Commission — Suit Against.</p> <p>Tlie Public Service Commission of Porto Pico stands in a position similar to tliat of the Pailroad. and similar Commissions in the states, and is liable to suit in a proper case.</p> <p>Noth. — Authorities passing upon the question as to whether action against public service corporation is an action against the state, are collated in a note in 44 L.P.A.(N.S.) 19S.</p>

<p>Conspiracy to Violate Draft Daw.</p> <p>Conspiracy — Military Service — False Statement.</p> <p>1. The Conspiracy Law, Revised Statutes, § 5440, denounced a severer punishment than the law does for the act which, in this case, the parties conspired to do. The question, however, cannot come up upon a motion to quash.</p> <p>Conspiracy — Claims.</p> <p>2. Conspiracy, to be punishable, must be confined to crimes already defined, but it may be that the conspiracy of several is a greater offense than the act of one.</p> <p>Draft Law — Applicable to Porto Rico.</p> <p>3. The'Draft Law by its terms, is applicable to territories, • and this need not be construed as limited to territories incorporated into the Union. The Draft Law, like other statutory laws of the United States not locally inapplicable, has the same force in Porto Rico as in the states. There is nothing locally inapplicable in requiring American citizens, wherever they live, to defend their country in time of war.</p>

<p>Damages to a Child Plaiktijtp.</p> <p>Verdict — Instruction as to Amount.</p> <p>1. Where it is agreed that the plaintiff is entitled to damages, the court may instruct the jury that it would set aside a verdict for less than a stated amount. There is no use permitting a verdict which would be set aside.</p> <p>Note. — On right to allowance for pain and physical suffering in fixing damages for death, see note in 17 L.E.A. 72.</p> <p>Damage — Physical Pain.</p> <p>2. A suit for physical pain alone is maintainable under § 1803 of the Porto Rico Civil Code when due to fault or negligence.</p>

<p>What Is a Severe Internal Injury.</p> <p>Internal Injury — Indirect Result.</p> <p>It is error, under the allegation of severe internal injury, to allow evidence of the permanent effects of such injury upon the use of an arm.</p>

<p>Three Judges ijst Injunction Cases.</p> <p>Injunction — Three Judges.</p> <p>. 1. Section 266 of the Judicial Code was designed to check the practice by which one judge might ex parte supersede acts of the legislature as unconstitutional.</p> <p>State — Territory.</p> <p>2. Section 266 of the Judicial Code in terms, applies to states; hut, in different sections of the Judicial Code, state is used generally and may include territories.</p> <p>District Court — Redera! Statutes.</p> <p>3. The district court has full jurisdiction to determine the constitutionality of all Federal statutes. A territory is a municipal or public corporation created by Congress.</p> <p>Federal Statute — Applicable in Porto Rico.</p> <p>4. It is practically impossible to secure the attendance of other Federal judges in Porto Rico, and also for the action of the Federal district judge elsewhere than in Porto Rico, and therefore the statute as to his calling in two other Federal judges is locally inap-. plicable.</p> <p>State — Territory.</p> <p>5. While the word “state” as used in the laws sometimes includes territories, this is exceptional, and does not apply to Porto Rico.</p> <p>Porto Rico — Unincorporated.</p> <p>6. The fact that reeént decisions establish the principle that Porto Rico is not incorporated into the Union is not material as to the civil rights of the residents, except as to juries.</p>

<p>CONSTRUCTION OF CONTRACT.</p> <p>Contract — Spanish. Words.</p> <p>■ 1. It is for the court to construe the meaning of á contract, and this is true whether the contract be in English or Spanish. In the latter case the court is assisted by the official interpreter.</p> <p>Same — Court and Jury.</p> <p>2. Where a party does not impeach the correctness of the official translator, and the court agreed with the interpretation of the translator, there is no question for the jury.</p> <p>Contract — Collateral Clause.</p> <p>3. Where a contract is for a certain price for cane and this is carried out, it does not invalidate the contract that it contains a clause for having the central accept cane below standard at a price it thinks proper to pay, when that price is shown to be proper under the circumstances.</p> <p>Misconstruction — Error without Injury.</p> <p>4. Even if there was any misconstruction of the words of one contract, it could not be taken advantage of by a party who has another contract.</p> <p>Plaintiffs Case — Rebuttal.</p> <p>5. In a suit to recover the value of cane furnished under a contract, the plaintiff must prove on his--main case that it was up to standard, and cannot wait for rebuttal to show this fact for the first time.</p> <p>Complicated Account — Equity.</p> <p>6. The equitable remedy for account lies where a court of law is incompetent to examine the account nisi prius with necessary accuracy.</p> <p>Executed Contract — Not Attacked after Carried Out.</p> <p>7. Where a contract for the furnishing of cane is carried out and the dispute is only as to the value of what is furnished, the whole contract cannot afterwards be attacked as invalid.</p>

<p>Poeto Rico Naturalization.</p> <p>Naturalization — Duties of Clerk.</p> <p>1. A declaration of intention must be filed in Porto Rico with the clerk under his responsibility for his acts. The judge does not direct the clerk in such matters.</p> <p>Same — Renunciation of American Citizenship.</p> <p>2. Under § 3 of the Naturalization Law Porto Ricans who have renounced American citizenship may apply for citizenship without renouncing any foreign sovereign.</p>

<p>MARSHALLING COLLATERAL IN RECEIVERSHIP.</p> <p>Equity — Accrual of Creditor’s Rights.</p> <p>1. The appointment of a receiver fixes the rights of the creditor» as against the receivership estate, and is the basis of dividends regardless of collateral.</p> <p>Porto Rico — Preferences.</p> <p>2. Under the Porto Rico Civil Code, claims for preference would date from filing.</p> <p>Civil Code — Spanish Bankruptcy Law.</p> <p>3. The Civil Code does not apply to bankruptcy, hut to insolvency; there being a separate law for bankruptcy of commercial houses.</p> <p>Federal Court — Local Preferences.</p> <p>4. Preferences as set out in the local law will be enforced in the Federal court.</p> <p>Local Preferences — Bankruptcy Act.</p> <p>5. The preferences declared in the Civil Code are not void as conflicting with the Bankruptcy Act, and will be enforced so far as they are not in conflict with bankruptcy liens.</p> <p>Repeal of Act — Does not Extend Another Act.</p> <p>6. The fact that the Spanish Bankruptcy Act is repealed does not extend the insolvency provisions of the Civil Code, but leaves the matter to be provided for under the Federal Bankruptcy Act.</p> <p>Federal Court — Equity Jurisdiction.</p> <p>7. The equity jurisdiction of the Federal courts is not affected by local laws, but this applies to the priority of liens fixed by such laws.</p> <p>Porto Rico — Dual System of Courts.</p> <p>S. Congress can provide one system of courts in territories, as it did in Montana, but in Louisiana, Hawaii, and Porto Rico has provided for both local and Federal jurisdictions.</p>

<p>Special Master’s Compensation.</p> <p>Master in Chancery — Compensation.</p> <p>1. Master in chancery is a judicial officer, and his compensation should in general be measured by the standard of judicial salaries.</p> <p>Same — Hearings.</p> <p>2. The master’s compensation may be gauged by the number as well as the nature of the hearings had.</p> <p>Same — No Exception.</p> <p>3. Although no exception is filed to a report as to master’s compensation, the court may revise the matter ex mero motu, so as to take into account all allowances to be made to officers in the matter. In order to effect its objects, expenses of receivership must be reasonable.</p>

<p>Community Property.</p> <p>Community Property — Venezuela.</p> <p>1. The law of Venezuela is similar to that of Porto Rico in regard to conjugal partnership for community property. The property of spouses is presumed to he held in partnership unless otherwise shown.</p> <p>Community Property — Husband and Wife as Parties.</p> <p>2. The court should not adjudicate the rights of a husband in a case to which only the wife is a party.</p> <p>Parties — Husband.</p> <p>3. Under the civil law the agent may proceed in his own name, but in a Pederal court, if the principal is essential, he must be a technical party.</p> <p>Husband Party — Imprisonment.</p> <p>4. The imprisonment of a husband does not excuse his not being made a party unless he is to be civiliter mortuus.</p> <p>Imprisonment — -Power of Attorney.</p> <p>5. In order to authorize the attorney to act in a suit the power of attorney must be broad enough to include such appearance.</p> <p>Lex Rei Site — Contract.</p> <p>6. If a contract is to be performed in another jurisdiction than where it was executed, the law of such other jurisdiction will apply as being the lex loci solutionis. A contract of deposit and payment in Porto Rico is governed by Porto Rican law.</p>

<p>Influencing- Witness..</p> <p>New Trial — Affidavit.</p> <p>1. While the rule for new trial requires that application for new trial must he by affidavit of the party and an affidavit by the applicant’s attorney is opposed, the court will not consider the affidavit.</p> <p>New Trial — Tampering with Witnesses.</p> <p>2. Tampering with witnesses is a serious matter, and must be clearly shown as a ground for new trial or otherwise. It is the better practice, after subpoena is issued, for the other party to have nothing to do with the witnesses. If the witnesses, however-, were previous associates of the party against whom they are used, and the matter complained of is merely getting from them a statement taken from -books which would be accessible to either party by subpoena duces tecum, and no actual harm resulted, the point will not be considered.</p> <p>'Trial — How the Jury Get at Verdict — Increase by Court.</p> <p>3. The court cannot know how the jury get at the amount of their verdict, and cannot increase the verdict; but, if satisfied it is too small, the court may direct a new trial unless the successful party agrees to a specific increase.</p>

<p>Practice — Dismissal without Prejudice.</p> <p>1. A dismissal without prejudice removes the matter from the docket of the court, and does not authorize proceeding without a new. petition.</p> <p>Naturalization — Terms of the Court.</p> <p>2. The Naturalization Law does not proceed according to the terms of court otherwise prevailing, and a previous order for a dismissal may be set aside and the matter taken up, but not at such a time as will affect the ninety days’ notice to the commissioner of naturalization, required by law.</p>

<p>On Motion to Dismiss at End o» Plaintiff’s Case.</p> <p>Negligence — Jury.</p> <p>1. Where a competent physician testifies that the hair of a patient fell out from an improper application of the X-ray treatment, it cannot be said that there is no evidence of negligence to go to the jury.</p> <p>Domicil — Jurisdiction.</p> <p>2. Under the Jones Act of March 2, 1917, the question of jurisdiction of the Eederal court for Porto Rico rests not on diversity of citizenship, so far as Americans are concerned, but upon diversity of domicil. A person from the states living in Porto Rico without the intention to remain retains his continental domicil, and can faring a suit in the Federal court. This, however, is a question of fact for the jury.</p>

<p>Amount of Bail Bond.</p> <p>Criminal Law — Bond.</p> <p>1. The bond exacted hy a United States commissioner is functus officio when the defendant appears before the district court and pleads.</p> <p>Same — Condition in.Life.</p> <p>2. The object of a bond is to secure the presence of the defendant at the trial, and must not he so fixed as to he oppressive, or force him to remain in jail. His condition in life will affect the amount of the bond.</p> <p>Same — Amount of Bond.</p> <p>3. In fixing a bond the court must take into account only circumstances which it can itself control, and not he influenced by war or other regulations which may he changed at any time by other authorities. In fixing the amount, the possible fine may be considered.</p>

<p>On Motion to Cause Production oe Document by a Witness.</p> <p>Practice — Subpoena Duces Tecum.</p> <p>The 4th Amendment to the Constitution does not deprive courts of their right to issue a subpoena duces tecum. But to prevent the application from constituting an unreasonable search, it must show that the facts desired are relevant and material, and specify them. The court may require evidence in order to decide whether the application is a proper one and does not infringe the privacy to which every man is ordinarily entitled.</p>

<p>Misjoinder of Plaintiffs, etc.</p> <p>Equity Pleadings — Joint Interests.</p> <p>1. Two cable corporations, affected by one order for tlie reduction of rates, may join in a suit to enjoin the board making the order.</p> <p>Federal Court — Jurisdiction—Local Law.</p> <p>2. The laws of a territory are not those of the United States for the purpose of jurisdiction of Federal courts; but a bill may be maintained if the local law violates the Organic Act or the Federal Constitution.</p> <p>Same — Diversity of Citizenship.</p> <p>3. In the case of constitutional objections, diversity of citizenship or domicil is not material to the jurisdiction of the court.</p> <p>Jurisdiction — -Protection of Public Interests.</p> <p>4. Where the board ordering the reduction of rates prefers to appeal its case upon the question of jurisdiction, the court will permit the public using the cables to intervene pro interesse suo in the matter of rates.</p>

<p>Change of Verdict after Seaxing.</p> <p>Practice — Sealing Verdicts.</p> <p>1. At common law verdicts must be rendered in court, and the custom of rendering a sealed verdict is one which, has grown up as a matter of convenience to judge and jury. The jury must in such a case return in open court for the rendition of the verdict. The sealing of verdict in reported cases was upon agreement of the counsel.</p> <p>Same — Rule of Court — Reporting Verdict.</p> <p>2. In the Federal court of Porto Rico the jury is permitted by rule of court to agree upon a verdict and to deliver the same to the marshal in a sealed envelop, but they shall appear in court at the next opening thereof to report the verdict. This rule contemplates that the verdict is complete when delivered, and, except when there lias been something improper connected with the signing of the verdict, it cannot be changed by the jury themselves.</p> <p>•Same — Jury Mingling with Public.</p> <p>3. In Porto Ri.co, the jury in civil cases obtains only in the Federal court, and gatherings in public are so common that it would neutralize the effect of the jury system to permit jurors to leave the custody of the marshal and go at large, and then be permitted to change their verdict..</p> <p>Sealing Verdict — Court Rule.</p> <p>4. The rule of comity not applying as to juries, because there is no civil jury in Porto Rico, the Federal court, under R. S. § 918, can make its own rules of practice, and a rule that a jury’s verdict is final upon sealing is not improper.</p>

<p>Effect of Appeal.</p> <p>Equity Oases — Prompt Trial.</p> <p>1. The equity rules require prompt trial of cases, continuances beyond the term being exceptions.</p> <p>Special Appearance — Jurisdiction.</p> <p>2. An answer repeating a previous objection to the jurisdiction does not waive the point. There are some reasons for answers to he filed after overruling a plea to the jurisdiction.</p> <p>Appeal on Jurisdiction — Trial on Merits.</p> <p>3. Where a case has been appealed generally, nothing can be tried in the court below; but if appealed merely upon the point of jurisdiction, the parties may try it upon the merits' below, subject only to • the possibility of everything being avoided by a reversal as to jurisdiction.</p>

<p>Scope op the Espionage Act Amended.</p> <p>Criminal Law — Intent.</p> <p>1. Questions of intent are specially for tlie jury, the surroundings giving color to the words employed.</p> <p>.Same — Two Offenses.</p> <p>2. Similar offenses alleged to have been committed on the same day may he joined.</p> <p>Same — Other Statements.</p> <p>3. An indictment cannot be brought on such general words as “other statements of the same tenor and effect.” The offenses must be defined.</p> <p>Same — Striking Out — Counts.</p> <p>4. Striking out a count containing an indefinite charge does not prejudice defendant.</p>

<p>Attachment in Federai Coubt.</p> <p>Jurisdiction — -Persons.</p> <p>1. Jurisdiction is the right of a court to hear and determine a suit, and depends upon the two questions of subject-matter and persons. Jurisdiction of the person may he obtained by consent, hut not jurisdiction of subject-matter. In the Federal courts jurisdiction attaches upon services of process.</p> <p>Note. — On validity of service upon nonresident officer of foreign corporation while in state in connection with transaction to which the action relates, see note in 43 L.R.A. (N.S.) 1015.</p> <p>Same — Federal Courts.</p> <p>2. Besides person and matter, jurisdiction in the Federal court is limited by the Constitution. A state court has jurisdiction over all property within the state limits, including that owned by nonresidents, provided there has been proper notice by publication.</p> <p>Federal Practice — Local Law.</p> <p>3. In common-law causes, remedies similar to the local remedies prevail in Federal courts, which may adopt state laws of practice. A local law as to advertisement for service of persons cannot extend to causes of action arising in other states.</p> <p>Same — Attachment—Porto Rico.</p> <p>4. The local law of Porto Rico as to attachment or embargo is adopted in the Federal district court, with a provision requiring personal service of summons and publication as to absent defendant.</p> <p>Same — Not Incorporated.</p> <p>5. Porto Rico is a' territory of the United States unincorporated into the Union, and the Federal court is in one sense a territorial court in that it exercises jurisdiction in a territory. But its jurisdiction is entirely different from territorial courts under Revised Statutes, and in judicial matters its Federal court is to be treated, on the same basis as a Federal court of the American Union. Everything is analogous to Federal courts in the states. This court has been organized by Congress under the territorial power but on the principles set out in connection with judicial power.</p> <p>Same — Personal Service.</p> <p>6. Where the law provides that the service of a designated public official shall be the service of a registered corporation, this nevertheless is not personal service.</p> <p>Same — Personal Service.</p> <p>7. For purposes of service it must appear that the corporation is carrying on business in the district, that this business is managed by some agent of the corporation, and the existence of some local law making the corporation liable to suit as a condition of doing business. Service of such an agent in charge of the business is personal service.</p> <p>Jurisdiction — Removal.</p> <p>8. Where a suit is begun, originally in the Federal court on account of diversity of • citizenship, it should generally be held valid where it would have been valid if begun in a local court and removed; but even in such case a judgment'entered on service by publication will be enforced only against the property attached.</p>

<p>JETTISON.</p> <p>Admiralty Law — Jettison.</p> <p>1. Jettison is one of the oldest branches of maritime law, coming down through the Rhodians to the Romans, and hence to the Con-sulado del Mar de Barcelona. The conditions are, the ship’s cargo being in a common peril, sacrifice of property by the master, by which safety of other property is attained.</p> <p>Same — Insurance Company.</p> <p>2. The libel must describe cargo owners and the right of the libellant.</p> <p>Same — Harter Act.</p> <p>3. The Harter Act of 1893 removes the liability of the ship for events at sea, provided that it is seaworthy in all respects before leaving. This is a matter of defense to be negatived in an answer,, rather than set out in the libel.</p> <p>Harter Act — General Average.</p> <p>4. The Harter Act declared the ship not liable for loss resulting from saving life or property at sea; but this refers to loss of life or property in another vessel and is not to be construed as an abolition of general average for jettison.</p> <p>Same — Pleadings.</p> <p>5. The finding of an adjuster in general average is not binding upon the vessel, but if this finding is adopted as a part of the general libel it is good pleading although it may not amount to proof.</p>

Statement of Facts. Tbe bill in tbis cause was filed April 7, 1916, by tbe Fortuna Estates, a corporation, against Emilia V. Henna et al., prayingfor an injunction against defendants from interfering with irrigation rights claimed in tbe Jacaguas river. Tbe injunction was granted without prejudice to tbe merits, and after decision on appeal tbis was dismissed March 27, 1917.

<p>Naturalization of American Soldier.</p> <p>Naturalization — Soldier. ,</p> <p>If a man is willing to die for a country it is only right that he should be permitted to live as its citizen. A soldier may he admitted without preliminary declaration and without five years’ residence. The court of the Federal district where he is stationed has jurisdiction.</p>

<p>Peinchple of Sentence.</p> <p>Criminal Law — Perjury.</p> <p>1. Tbe wilful giving under oatb in a judicial proceeding of false testimony material to the inquiry constitutes perjury.</p> <p>Same — Punishment—Wife.</p> <p>2. The expected birth of a child cannot be taken into account by the court in fixing the punishment of a father who has pleaded guilty. • But the beginning of the punishment can be postponed or .any interval allowed in its duration.</p> <p>Criminal Law — Punishment on Pleading Guilty.</p> <p>3. In Porto Rico the offense of perjury cannot be treated as a light one. High family connections makes the offense greater rather than less, and the wealth of the defendant would indicate imprisonment rather than fine as a proper punishment. The practice usually in fixing tlie sentence at half the maximum punishment is followed upon a plea of guilty.</p>

<p>Motion foe New Trial.</p> <p>Criminal Law — Lottery Tickets.</p> <p>Where it is shown that lottery tickets brought from a foreign country to San Juan were thrown overboard by the defendant, coming from the transporting ship, a verdict of guilty of importation will not be disturbed.</p>

Statement of Facts. Petitioner, José López Garcia, filed a petition for writ of babeas corpus on June 25, 1918, under oath, alleging that be was born July 10, 1894, in tbe town of Cidra, Porto Pico, bis father being Joaquin López Cortes, a native of tbe province of Alicante in tbe Spanish Peninsula.

<p>Natukalization of Poeto Rican.</p> <p>Naturalization — Military.</p> <p>1. An Act of May 9, 191S, providing that a Porto Rican who was enlisted may he declared naturalized, applies to a Porto Rican who had disclaimed American citizenship under § 5 of the Jones Act hut afterwards had served in the Army.</p> <p>Same — Form of Oath.</p> <p>2. A Porto Rican cannot renounce foreign allegiance. But where he has previously renounced American citizenship he must, before-being naturalized, abjure any and all prior declarations of intention not to become an American citizen and then take the usual oath of allegiance.</p>

<p>Resale oe Peotebty.</p> <p>Equity Sale — Purchaser.</p> <p>1. The fact that a property bidder mistakes the scope of his rights and does acts to his own injury does not constitute an equity which the court can notice.</p> <p>Public Sale — Interest in Land.</p> <p>2. The Act of Congress of March 3, 1893, requires a public sale of interest in land. This applies to a sugar factory annexed to the land, and. the civil law distinction between movable and immovable has no application.</p> <p>Fixtures- — Civil Law.</p> <p>3. The old physical test of fixtures growing out of annexation is giving way in modern times to constructive annexation depending on intention, and this is applicable at civil law as well as at</p> <p>Note. — For authorities passing .on the question as to whether things placed on land with the intention of annexing them are fixtures, where they are never actually attached, see note in 69 L.R.A. 892. common law. The fact -that the fixture has ceased to operate as such does not change the connection with the land and its results.</p>

<p>Application pc» New Tbial.</p> <p>New Trial — Surprise.</p> <p>Where the court’s construction of the pleadings worked surprise upon one party, and the other -was surprised hy immaterial evidence to which he did not seasonably object, the result is so unsatisfactory that the court will grant a new trial upon terms.</p>

<p>Raising Question ojt Citizenship After Judgment.</p> <p>Appeal — Proceeding Below.</p> <p>1. After appeal is allowed the lower court ceases to have jurisdiction of the case except for such purposes as preservation of the’ property in dispute. An appeal, however, is not complete until the appeal bond is given.</p> <p>Practice — Jurisdiction—Facts Outside of Record.</p> <p>2. Where the alleged lack of jurisdiction does not appear upon the record and could have been shown in the trial, but has not been set up except by offer of affidavits after judgment, the point will not be entertained.</p>

Statement of Facts. The bill in this case was filed. April 6, 1918, by the plaintiff against the defendant, who is the treasurer of the Island of Porto Pico. The bill has been already discussed in some respects upon the motion to dismiss for want of jurisdiction. There was an amendment made that the part of the act requiring stamps for local consumption, and not for export, violates the Organic Act because not within the title, and that the act imposes a tax on exports.

The Facts Stated in the Pleadings. The amended hill of complaint was filed July 12, 1918, on behalf of two different corporations, that is, the West India & Panama Telegraph Company, Limited, an English corporation doing business in Porto Pico by consent of the Crown of Spain, and subsequently the United States, and the Compagnie Francaise des Cables Telegraphiques, a corporation organized under the laws of France.