Volume 17 — Puerto Rico Reports

<p>Penal Law — Assault With Intent to Commit Mayhem — Criminal Intent— Natural Consequences oe an Act. — Tlie person executing an act must-be held to intend the-natural and probable consequences thereof, and it is to be presumed that every normal adult, endowed with normal sense, knows the terrible pain that fire produces when applied to the human body.</p> <p>Id. — Adequate Punishment oe a Crime. — The defendant urges that the penalty of nine years in the penitentiary to which he. has been sentenced is excessive. On appeal the court held that said penalty was not excessive, and in imposing the same the trial judge had committed no abuse of discretion, since under the law he could impose upon defendant the maximum penalty of 14 years of imprisonment in the penitentiary, considering the cruelty of the act executed by the defendant.</p>

<p>Appear from a decision of the Registrar of Property of San Hermán.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal — Appellant’s Brief — Assignment op Errors. — In cases where the appellant’s brief does not contain an assignment of errors, in accordance with the provisions of. sections 42 and 43 -of the Rules of the Supreme Court, the latter, in considering the case, may confine itself to such errors as are fundamental for the purposes of the appeal.</p> <p>Paraphernal Property — Property op the Conjugal Partnership. — The fact that an estate acquired by the wife with money derived from her paternal inheritance was sold by her, and that some time afterward she bought another conjointly with her husband, is not sufficient to justify the affirmation that said acquisition was made with her own property and has the character of parapherna.</p> <p>Id. — Acquisition by Private Instrument. — It appearing that the estate referred to in the ease at bar was acquired by both spouses during the marriage, it must be considered as belonging to the conjugal partnership; and the fact that the acquisition was made by private document and that the latter was converted into a public instrument after the death of the wife, the sale to the widower being stated therein cannot affect the character of said property as belonging to the conjugal partnership.</p> <p>Id. — Dissolution of the Conjugal Partnership — Ownership by the Widower. — Upon the dissolution of the conjugal partnership by the death of the wife, the husband cannot be reputed absolute owner of the property belonging to the eonjugal partnership, or of some of said property, until a liquidation and partition has been made and he has acquired, by adjudication, the exclusive ownership thereof.</p> <p>Id. — Third Person. — He has the character of a third person who acquires from a person who, according to the registry, has the right to convey, but such character cannot be alleged by one who has acquired at a time when the estate was not recorded in favor of the vendor, nor by one who has knowledge of the fact that the vendor acquired the estate by private instrument during his marriage, it being, therefore, property belonging to the conjugal partnership, the public document of sale in his favor having been executed after the death of his wife.</p> <p>Proofs — Depositions—Testimony Contrary to ti-ie Declarations Contained in a Public Instrument. — In the case at bar objection was made to the admission of a deposition because it contained declarations contrary to those made by the deponent in a public instrument, said objection being based on paragraph 2 of section 101 of the act regulating the introduction of evidence in civil proceedings. Held: That this provision is applicable only to questions between parties and that the deponent is no party to the action, nor was the deposition offered in evidence by any one of those who appeared as parties to the public instrument, nor did the deponent have a personal interest in the contract, which was the object of the public instrument, he appearing therein as attorney in fact of one of the parties. For all which reasons the provision hereinbefore cited is not applicable to the case.</p> <p>Id.' — Proof of an Accessory or Incidental Fact. — The court has power to permit at the trial the investigation of an accessory or incidental fact which it considers directly related to the question at issue and the elucidation whereof is necessary to a proper decision.</p> <p>Id. — Admission of Irrelevant Evidence' — Hearsay Evidence — Appeal.—The admission of testimony constituting hearsay evidence and the denial of a motion for the elimination thereof, is not an error justifying the reversal . of the judgment, if the rights of the party are not prejudiced thereby, owing to the existence of other evidence sufficient to establish the fact to which the evidence improperly admitted refers.</p> <p>Judgment — Nullity of' Deeds. — In the ease at bar the lower court decreed the nullity of certain deeds and of the records thereof, and the appellant alleged that inasmuch as the nullity of the contracts contained therein had not been decreed, their validity should be sustained. Meld: That the evident intention of the lower court was to decree the nullity of the contracts to which said deeds referred, since the ground for the declaration of nullity was the lack of rights in one of the parties to make the conveyances the object of said contracts.</p>

<p>Mortgage — Taxes—Sale of Mortgaged Estate for Satisfaction of Taxes— Becord. — Although a mortgage directly and immediately binds the property upon -which it is constituted to the fulfilment of the obligation secured by it, yet the award of a joint ownership in a mortgaged estate made to the appellant in payment of his credit cannot in this case be recorded in his favor, because a cautionary notice to have effect during 1%0 days, referring to the same joint ownership sought to he recorded, appears in favor of a person other than the one against whom foreclosure proceedings were instituted, which cautionary notice is still in force, having been entered by virtue of a deed of sale of all the estate, made at public auction for the satisfaction of taxes. Thus, the provision of article 20 of the Mortgage Law, instead of being violated, was complied with.</p>

<p>Evidence — Eape—Testimony oe the Aggrieved Woman — Hearsay Evidence.— In a prosecution for rape the testimony of the aggrieved woman given before the ward alcalde (comisario) or police authorities constitutes hearsay evidence and is not admissible as evidence at the trial.</p> <p>Id.. — Charge to the Jury. — In cases where improper evidence has been admitted, not only such evidence should be eliminated from the reeord but the jury must be instructed not to take it into consideration, although in the majority of cases such instructions should be expressly requested by the defendant.</p> <p>Id. — In the case at bar the lower court ordered the elimination of certain statements made to two witnesses by the aggrieved woman, but decided that it be stated in the record that said witnesses had testified only to the effect that the aggrieved woman had complained before them that she had been ravished. The court held that this statement of the court had not been sworn to by the witnesses nor had the defendant been afforded an opportunity to cross-question them upon this point, wherefore the court’s decision constituted a fundamental error.</p> <p>Id. — Corroboration oe the Testimony oe the Aggrieved Woman. — In prosecutions for.rape the defendant cannot be convicted on the sole testimony of the offended woman, which must be corroborated by some other evidence. The corroborating evidence by itself need not reveal all the elements of the crime, but it should tend to connect the defendant with the crime charged.</p>

<p>Appeal from the District Court of Guayama.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a decision of the Registrar of Property of San Jnan, Section 1.</p> <p>The facts are stated in the opinion.</p>

<p>CoNtracts — Commercial Purchase and Sale. — In the contract of purchase and sale of personal property, -when this is to be delivered at a date subsequent to that of the contract,,, the loss suffered by the merchandise before it? delivery shall be borne by the vendor.</p> <p>Id. — Judicial Deposit. — In case the purchaser should fail to dispose of the merchandise at the date fixed for its delivery, and the vendor should demand the fulfilment of the contract, he must deposit the merchandise in court so as to bind the purchaser to the payment thereof, for, if such deposit has not been made nor the purchaser consented to the vendor's constituting himself the depository of the merchandise, the contract cannot be considered as having been consummated nor the purchaser be liable for the loss of the merchandise sold.</p>

<p>Appeal from the District Court of San Juan.</p> <p>The facts are stated in the opinion.</p>

<p>ApplicatioN for a writ of certiorari.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal — Contradictory Evidence and the Weighing oe Same by the Trial Court. — In case the testimony is contradictory the weight given to the same by the trial court must be considered just and proper by the appellate court, . unless it is shown that the trial court was actuated by malice, prejudice, or partiality, or that it committed material errors.</p> <p>'Contracts — Consent Obtained by Fraud — Annulment.—So that a contract may be annulled or rescinded on the ground that consent was obtained by fraud, the evidence establishing the fraud must be clear and convincing.</p> <p>Id. — Even assuming that the evidence shows that O’Neill, a stranger to the contract which it is attempted to annul, had made false representations to Cruz to induce him to give his consent to the execution of the said contract, this fact by itself is not sufficient to impute knowledge thereof to López Díaz-, the other party to the contract, or to make him responsible for the acts of O’Neill, because it has not been proved that the latter was the agent of López Díaz or that there was any connivance whatever between them.</p> <p>Id. — From the allegations in the complaint it appears that the plaintiff himself, when he executed the contract which he_ is now endeavoring to annul, attempted to conceal all or part of Ms property to protect himself against the result of a certain judicial proceeding, which attempted concealment was in itself a fraud in law, and it is a principle of law that he who seeks justice because of fraud must himself be free from all fraud. In pari delicio potior est con-ditio defendentis.</p> <p>Id. — Consent Obtained by Influence. — Although it has been stated in some eases that if a person of weak character, and generally it is a woman, has been influenced by some one in whom he has confidence and because of such . influence has given his consent to a deed transferring property, the courts will interfere to declare its annulment. This principle is not applicable to the present case because the evidence does not show that the plaintiff was a weak character, susceptible of being easily influenced, but, rather, that it was attempted to frighten him so that he would execute the contract, which is not sufficient to constitute the intimidation or fraud to which the law refers. It has not been proved that he was coerced or threatened in any way.</p> <p>Id. — Consideration for the Contraot. — In the absence of evidence which positively shows the contrary it must be presumed that for a contract which has been reduced to a public deed, in whieh both parties acknowledge the existence of a consideration and to which the notary certifies, there must have been consideration.</p>

<p>Summons — Defective Summons. — -The amendment of a summons is not a practice authorized by the Code of Civil Procedure; if, for any reason a summons should be defective, a new summons must be issued, at the instance of the party, but there is no provision whatever authorizing the amendment of a summons in such a manner as to have effect from the time it was originally issued.</p> <p>Id. — Summons by Publication — Personal Action. — It is a well-established principle that in a personal action, when the defendant resides outside the jurisdiction of the insular court, the summons cannot be made by publication; in such cases the publication of the summons cannot be considered as service thereof rypon a defendant residing outside the Island, so as to base thereon a judgment rendered in a personal action; the service thus made and the mailing of a copy of the summons as prescribed by law do not give jurisdiction to the court.</p> <p>Id. — Order Authorizing the Publication of the Summons. — The order authorizing the publication of a summons cannot be made before such summons is issued. 'The first step to be taken is to secure the issue of the summons by the secretary, without the intervention of the judge, and after delivery of the summons to the marshal, the judge, in proper cases, shall then order its publication in the manner provided by law; these requisites must be strictly complied with.</p> <p>Id. — Proceedings in Eem — Attachment of Defendant’s Property. — In proceedings in rem — that is, in those cases where the' law authorizes the attachment and sequestration of the property belonging to the defendant, situated within the judicial district — the citation may be made by publication, and the judgment validly rendered upon the strength of such citation.</p> <p>Id. — In the issue of an execution of an attachment upon property situated within the jurisdiction of the court, the proceedings prescribed by law must be carefully followed, to the end that the service of process upon the defendant may prove effectual.</p> <p>Id. — Period oe Publication. — The period of publication of the summons depends, to a certain extent, on the discretion of the court, for the law'only provides that it shall be made, at least once a week, and for a period of not less than a month; but the court must fix, in its resolution, the time during which the publications are to be made, and if said time is fixed in days it must be so reckoned that from the day on which the first publication was made to that on which the last one appears the period fixed by the court shall have expired.</p> <p>Id. — Jurisdiction.—The publication of the summons for the period ordered is neeessary for the purpose of conferring jurisdiction over the person of the defendant, and if the order of the court is not strictly complied with, the court lacks power to decide whether or not the defendant has been sufficiently notified, and whether or not the summons was published for a sufficient period of time, since the only question which the court can consider and deeide is whether the order directing the publication was or was not complied with in all its parts.</p>

<p>Legitimate Child — Proof oe Filiation — Will.—The filiation of a legitimate child is proved by the record of its birth and by the marriage of its parents. As a will by itself does not constitute proof of the truth of its contents, it does not constitute proof of legitimate filiation.</p> <p>Natural Child — Prooe oe Natural Filiation. — In those cases in which the person or persons who were in a position to acknowledge or deny the filiation of a natural son may have died, the proof of the filiation must be complete and convincing, and a mere statement of the parish priest that the father himself had ordered that it should be stated in the baptismal entry that the baptized was his natural child is not sufficient.</p> <p>Jd. — Presumption oe the Capaoity oe the Parents to Contract Matrimony.— The doctrine of the presumption of the capacity of the parents to contract matrimony does not apply in the present case, in which the complaint has not been filed to prove status as a natural child, nor has it been proved, but it was filed assuming the existence of such a status, because if the complaint was for the purpose of establishing filiation it was fatally defective in that it did not state that the parents had capacity to contract matrimony, or how the acknowledgment was made.</p>

<p>Action to Recover — Suit Against The People of Porto Rico — Jurisdiction— Consent. — It has been repeatedly held by this court that The People of Porto Rico can be sued without its consent, and therefore the courts have jurisdiction to take cognizance of actions against The People where said consent has not been given.</p> <p>Id. — Identification of the Estate — Description of the Estate in the Complaint. — For the purpose of recovery it is an indispensable condition that the plaintiff should specify in the complaint, with due certainty and clearness, the thing claimed by him, and prove during the trial the title and identity thereof.</p> <p>Id. — Recovery of an Estate as Part of Another — Description.—To comply with the provision of section 125 of the Code of Civil Procedure, a description of the estate whereof the land claimed formed a constituent part is not sufficient, but the latter must be described in such a manner as to insure its identification, in ease of the execution of a judgment, without the necessity of further explanations, the thing sought to be recovered not being the entire estate but the portion detained, and the action for recovery should be exercised against the possessor of said land.</p> <p>Id. — Boundaries of the Estate — Lack of Identification. — An action to recover 'cannot succeed where the complaint fails to specify the boundaries or limits within which the land claimed is enclosed, nor can said boundaries be determined by the outcome of the evidence taken at the trial, in which the identity of the entire estate was sought to be established, instead of that of the portion claimed.</p> <p>Id. — Consideration oe the Evidence — Aeeirmation oe the Judgment. — The identity of the land sought to be recovered not having been proven, and the lower court not having been influenced in its action by prejudice, partiality, or passion, nor erred in considering the evidence, the judgment appealed from should be affirmed.</p>

<p>Appeal from the District Court of Mayagiiez.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal — Contradictory Evidence — Appreciation op the Lower Court. — In oases of contradictory evidence tlie appreciation thereof made by the lower court should be accepted by the appellate court as just and proper, unless it bo shown that in making such appreciation said court was moved by passion, prejudice, or partiality, or that it committed manifest error, circumstances not demonstrated in this case, and which, instead of resulting from the evidence, it appears, on the contrary, that the latter was duly weighed.</p> <p>Action, Civil and Penal. — Under the present procedure penal and civil actions ex delicio are entirely independent and can never be prosecuted conjointly. It devolves upon the fiscal to prosecute the penal aetion, the civil- one being reserved to the party interested, to be exercised at the proper trial.</p> <p>Damage — Actions Arising From Quasi-Criminal or Criminal Fault or Negligence. — The provisions of section 1803 of the Bevised Civil Code have a ivider and more liberal range of application than they had in the previous code, and may serve as a basis for the exercise of civil actions arising from quasi-criminal fault and negligence, as also for the exercise of such actions as may arise from criminal fault and negligence.</p> <p>Id. — Meaning of the Word Damage. — By damage is understood, for the purposes of section 1803 of the Bevised Civil Code, the injury caused by one person to another, or to his property, whether done with the intention of causing damage or by reason of negligence or carelessness, or through unavoidable accident.</p> <p>Id. — The word damage involves in its signification such indemnity as may be recoverable or demanded by one who, as a result of the act or fault of a third .person, has sustained an injury in his person or property, or in such rights as he may possess, arising from his relations to other persons.</p> <p>Id. — Matters Which Should Be Alleged and Proved — Damage Sustained by the Plaintiff and Absence of Negligence on His Part — Negligence of the Defendant — Amount of Indemnity. — To be entitled to indemnity for damages, based on the provisions of section 1803 of the Bevised Civil Code, it is necessary for the plaintiff to allége and prove:</p> <p>(а) The existence of a real and positive damage, causing him losses in his person, in his property, or in his right as derived from his relations to other persons;</p> <p>(б) That such damage is the immediate and natural consequence of the guilty act or negligence of the defendant and not of the fault or negligence of the plaintiff; and</p> <p>(c) That the plaintiff must specify in his complaint, with the greatest clearness possible, the kind of losses sustained by him and determine in detail his compensation thereof; and when from the nature of the case the losses are not susceptible of liquidation, it being impossible to reduce them to dollars and cents, because of their reference to physical pain, loss ■ of work, confinement in a hospital, mental sufferings, etc., a sum considered as a just compensation should then be fixed.</p> <p>Id. — Powers of the Lower Court to Fix the Indemnity. — The -lower court is the one called upon to weigh the allegations and evidence and to fix the amount of indemnity to be paid by the defendant, bearing in mind, however, that such indemnity does not imply a punishment, but an obligation to compensate with a just sum the damages and losses caused to the plaintiff through his fault or negligence.</p> <p>Id. — Powers of the Appellate Court — Excessive or Extremely Inadequate Indemnity. — The appellate court has power to reduce the amount of the indemnity allowed by the lower eourt, but it should not exercise such power unless said indemnity be excessive or immoderately inadequate.</p>

<p>Appeal from the District Court of San Juan.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Ponce.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal — Trak script oe Becobd. — In case of appeal, where defendant fails to appear to answer tlie complaint and a judgment is entered by default, the summons of defendant, together with the proof of service thereof, should form a part of the record and be included in the transcript of the same. Failure to include the summons in the record results in the dismissal of the appeal.</p>

<p>Appeal from the District Court of Humacao.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Ponce.</p> <p>The facts are stated in the opinion.</p>

<p>Penal Law — Murder in First Degree — Verdict Contrary to Law or Evidence — Bill of Exceptions. — This court cannot reverse a judgment on an appeal based upon the ground that the verdict was contrary to law or „ to the evidence when all of the evidence admitted upon the trial has not been submitted for its consideration, and questions of law arising during the trial do not appear in the bill of exceptions. In such case it will be presumed that the verdict was rendered in accordance with the law and the evidence.</p> <p>Id. — Classification of Crime — Verdict op Jury. — Where the record shows no taint of passion or prejudice, and no material error is disclosed in classifying the crime, or otherwise, the verdict of the jury should not be disturbed.</p> <p>New Trial — Instructions to Jury — Statement op Facts. — In the absence of a statement of facts it must be presumed that the judgment was supported by the evidence, and there being nothing in the record to show any misdirection of the jury or error of the court on any question arising during the progress of the trial, or that the verdict was contrary to the law or the evidence, a new trial should not be granted.</p>

<p>Appeal from the District Court of San Juan.</p> <p>The facts axe stated in the opinion.</p>

<p>Appeal from the District Court of Ponce.</p> <p>The facts are stated in the opinion.</p>

<p>Contract — Existence oe Consideration — Denial by Party Formerly- Admitting Existence Thereof. — Although the consideration of a contract stated in a public instrument may appear from its contents, the existence thereof cannot be considered conclusive, and if denied by the.same party who formerly admitted it, and it be shown that it was not true, the contract is void and the court should so adjudge.</p> <p>Id. — Evidence—Public Instruments. — Although public instruments may serve as evidence against the contracting parties and their successors in interest with reference lo the statements made therein by the former, nevertheless such evidence is not conclusive and may be destroyed by other evidence as strong and clear, permitting the judge to decide the conflict without any vacillation whatsoever, for in cases of doubt the statements contained in the public instrument should always prevail.</p> <p>Id. — Contradictory Evidence — Appeal.—The findings of the trial court, in ' cases of contradictory evidence, must be considered as just and proper,, unless it be shown that in so finding it has been influenced by' passion, prejudice, or partiality, or that it has committed manifest error.</p>

<p>Mortgage Bonds — Third Parties. — A person cannot be deemed to be a third party for the purpose of compelling' the strict enforcement of a recorded mortgage bond who, not haying intervened in the making of said bond and acting only as an assignee to negotiate its collection on a commission basis, is informed of the origin and nature of said bond and of the stipulations and agreements made by the parties thereto, resulting in a modification of its terms, even though such stipulations and agreements had not been recorded in the registry.</p>

<p>^Mortgage — Award of Mortgaged Property in Satisfaction of Personal Credit. — A mortgage directly and primarily subjects tlie property on which it is constituted, whoever its owner may be, to the fulfilment of the obligation for the security of which it was constituted, and, therefore, a creditor to whom a mortgaged property is awarded in a personal action acquires, it subject to the encumbrance upon it.</p> <p>ITd. — Ordinary Proceedings — Summary Foreclosure Proceedings. — The fact that a mortgage creditor has brought an ordinary action to recover upon a mortgage which he holds does not, preclude him from instituting the summary proceedings provided for by the Mortgage Law when, as in the ease at bar, it shall have been shown that the judgment rendered in the first action could not be complied with.'</p>

<p>Damages Caused by Fault on Negligence. — The action instituted in the case at bar, the object whereof is to recover an indemnity for damages caused to the plaintiff by the death of one of her sons, through the fault or negligence of the defendant company, is authorised by the provisions of section 1803 of the Civil Code, which constitute our substantive law in the matter.</p> <p>Id. — Recoverable Damages. — Only such damages -as have been really and actually caused can be recovered in these cases, and, therefore, to enable the court to decide as to the damages sustained by the plaintiff it is necessary to show that they .actually exist and to substantiate the facts which are to serve as basis for determining the amount of the indemnity.</p> <p>Id. — Indemnity in Cases Where Victim Has Died. — In such cases as the one at bar, where the mother exercises an action arising from the death of her son, the plaintiff is entitled to be indemnified only for the damages sustained through the loss of her son*s services, but she would never have a right to the indemnity which said son could have demanded had he not died, or which arose from the wounds sustained by him through the accident. In such cases the' indemnity extends only to what the son was in, the habit of giving for the support of his mother and of which she is deprived by reason of his death.</p> <p>Id. — Amount oe Indemnity. — For the purpose of determining the amount of the indemnity referred to in the foregoing paragraph it is necessary to prove what money the son was earning, or was accustomed to earn, as otherwise the court would have no basis upon which to make an estimate of the existing damages and determine the amount thereof.</p> <p>Id. — Statutes op Limitation — PRESCRIPTION.—Although the provisions in force-in the matter of prescription are to be found in the Civil Code, as regards their. application to this ease they possess an adjective character. Prescription differs from the statutes of. limitation in that the latter affect the procedure but do not affect the law. Their object is to prevent the party from exercising his action, and they are inspired by principles of public order; whereas prescription confers a title or a right, especially in cases of real property held for a long period of time.</p> <p>Id. — Interruption op Prescription. — The provisions of section 1874 of the Civil Code do not prevent the prescription from again running as soon as the judicial proceedings are terminated by the voluntary act of negligence of the plaintiff.</p> <p>Id. — -Abandonment op Action or its Dismissal by-Will op Plaintipp. — The interruption of the prescription by the exercise of the judicial action occurs when the plaintiff prosecutes his action to its termination; but if he abandons the same, desists therefrom, or allows it to be dismissed, the immediate effect is the same as if such action had never been instituted, the status qua being then restored, and the period of prescription reckoned from the moment the cause of action arose. ■</p>

<p>Appeal from the District Court of San Juan, Section 2.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of San Juan.</p> <p>The facts are stated in the opinion.</p>

<p>Legitimate Children — Hereditary Bights in Cases op Intestate Succession. — Although acknowledged natural children have the same hereditary rights as legitimate children, either to inherit in their own right or by right of representation, however, they are not entitled to the intestate succession of legitimate children and descendents and legitimate collateral relatives of the parent who acknowledged them.</p> <p>Id. — Testamentary Succession. — The provisions 'of the act to repeal certain sections of the Civil Code, approved March 9, 1905, are applicable only to cases of testamentary succession, but not to the case at bar, in which the plaintiffs, as natural nephews, seek to inherit, ab iniesiaio, by right of representation, 'an uncle who was the legitimate brother of their deceased father.</p>

<p>Appeal from a decision of the Registrar of Property of Ban G-ermán.</p> <p>The facts are stated in the opinion.</p>

<p>Allegations — Exceptions—Lack oe Capacity — Counsel Assigned by the Court. — The proceedings had for the judicial assignment of counsel whose capacity is contested not having been made part of the record in this ease, it is t.o be assumed that such assignment was made in accordance with the law.</p> <p>Id. — Defect of Parties Defendant — Executors.—The provisions -of sections 65 and 66 of the Act Relating to Special Legal Proceedings, approved March 9, 1905, refer to eases where the validity of a will is contested on the ground of noncompliance with some of the formalities required by law, or for want of testamentary capacity on the part of the testator, but said provisions are not applicable to a case "where the right of action is based on the nullity of the institution of heirs through the preterition of an heir by force of law, for the purpose of demanding that the executor be made a party to the action; and even assuming that said provisions are applicable! to the latter case, the executor need not appear as party defendant, except where he is the executor of another will alleged to be that of the deceased and the validity whereof is sought to be established or destroyed.</p> <p>Id. — Consolidation of Actions — Actions Derived From Others. — Although, there is no provision authorizing the consolidation of actions to claim filiation, the acknowledgment of rights consequent to said filiation, and for the annulment of a will as to the portion thereof bearing upon succession, which may impair said rights, these actions being closely related to each other, inasmuch as the third is derived from the second and "the second from the first, there is no objection to sustaining their consolidation.</p> <p>Id. — Appeals—Errors or Defects in the Proceedings "Which Do Not Impair the Rights of the Parties. — -The improper consolidation of several actions in the same complaint is not in itself sufficient reason for the reversal of the judgment on appeal, if it has caused no injury to the-defendant, inasmuch as the consolidated evidence of all the actions is identical, and said actions-are derived from each other.</p> <p>Illegitimate Children — -Rights of Filiation — Law by Which They Should-be Regulated. — The. rights of filiation of illegitimate children must be regulated by the legislation in force at the time of their birth and, consequently, the conditions which, according to the Revised Civil Code, should inhere in them in order to be considered natural children do not affect, either favorably or unfavorably, those who were born under'the prior legislation, irrespective of the date of their acknowledgment, inasmuch as said conditions are essential or inherent to their own personality, and as they essentially constitute the personality of the individual from the moment of his birth, such personality is what must serve as basis for the acquisition of all kinds of rights; wherefore, in order to give effect to the new legislation contained in the Revised Civil Code and convert into natural children those who were not, nor could be so, under the prior legislation, it is necessary that it be expressly provided notwithstanding the first rule of the transitory provisions of said code, which is not applicable in these eases.</p> <p>Id. — Even were the first rule of the transitory provisions of the Revised Civil Code applicable to these cases, illegitimate natural children born under the prior legislation could never invoke it for the purpose of demanding their acknowledgment as such children, because this right, established for the first time in the Revised Civil Code, is opposed or prejudicial to other rights originating, or acquired under said prior legislation in behalf of the father and his successors in interest, such as are derived from articles 138, 139, 140, and 141 of the Spanish Civil Code.</p> <p>Id. — Acknowledged illegitimate children born under the legislation established by the Revised Civil Code have an indisputable right to a judicial declaration of their acknowledgment and to bear the surname of their father, but they cannot claim the right to inherit from him by will.</p> <p>Id. — Natural Children. — Illegitimate children have no hereditary rights in the testate sueession, for such rights are recognized by the act referring to inheritance, approved March 9, 1905, only in favor of legally acknowledged natural children, understanding by such, for the purposes of said act, those born out of wedlock of parents who, at the time of their conception, could have married with or without dispensation, whence the meaning of natural child is more restricted than that of illegitimate child, and the same signification and scope can in nowise be attached to either phrase.</p> <p>Appeal — Proofs—Cumulative Evidence. — The admission of improper evidence, when the latter is of a cumulative character and there is other evidence to establish the facts to which the former referred, is not sufficient reason, by itself, to justify the reversal of the judgment.</p> <p>Id. — Admission of Portraits and Photographs as Evidence. — Portraits and photographs are admissible as evidence at the trial provided they are duly identified as representing the persons to whom they refer.</p> <p>Id. — Consideration op Contradictory Evidence. — The finding of the lower court in cases of contradictory evidence must be accepted by the appellate court, unless it be ’shown that in such finding said court was actuated by passion, prejudice, or partiality, or that it committed manifest error.</p>

<p>Appeal — Temporary Support — Special Order. — A decision rendered after final judgment directing the payment of a pension by way of temporary support. is a special order, and an. appeal therefrom must be taken within a period of 10 days, as otherwise said appeal must be dismissed.</p>

<p>Injunction — Amount of Claim — Jurisdiction.—District courts have jurisdiction to issue writs of injunction, whatever may be the amount of the thing claimed in the complaint.</p> <p>Id. — Sufficiency of the Petition. — If from the petition requesting a writ of injunction the right of the plaintiff! should clearly appear, as also the necessity and urgency of the remedy sought, the petition is sufficient. If the court has deemed the petition sufficient and ordered that the injunction be issued, adopting the necessary measures to protect the rights of the defendant, its decision shall not be modified on appeal unless an abuse of its discretionary power be shown.</p> <p>Id. — Injunction to Stay the Execution of a Judgment. — Although great caution should be exercised in issuing a writ of injunction to prevent the execution of a judgment at the instance of the owner of the real property that is to be sold at auction, this does not imply that such relief should be denied in cases where it is demanded by justice and equity.</p> <p>Id. — Jurisdiction Over the Person of the Defendant. — Although the name of the person against whom á writ of injunction is requested does not appear in the title of the petition as party defendant, because said petition has been headed with the title of the case whereof it is an incidental issue, this does not involve a lack of jurisdiction in the court over such person, if in the service of the writ the formalities prescribed by law with respect -to the delivery of a copy of the petition have been complied with.</p> <p>Id. — Nor does the fact that the defendant in the main action does not reside within, the judicial district of the court issuing the injunction imply a lack of -jurisdiction to take cognizance of the injunction, if the court has jurisdiction over the matter involved in the main action.</p> <p>Id. — Defect in the Oath of the Petition. — The defects contained in the oath appearing in the petition must be objected to in the court below, and if they have not been alleged there such defects cannot serve as ground for a reversal of the judgment on appeal.</p>

<p>Appeal from a decision of tbe Registrar of Property of Caguas.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Mayagfiez.</p> <p>The facts are stated in the opinion.</p>

<p>Allegations — Demurrer — -Jurisdiction — Nullity oe the Institution of Heirs. — District courts have jurisdiction to take cognizance of an action for the annulment of an institution of heirs.</p> <p>Id. — Lack of Legal Capacity to Sue. — The omission in the complaint of an allegation to the effect that the plaintiff has by executory judgment been declared an acknowledged natural child of his father, where such requisite is necessary for the prosecution of 'an action for annulment of an institution of heirs, can be no ground for a demurrer based on lack of legal capacity to sue, but for one alleging the lack of a cause of action.</p> <p>Id. — Defects as to Parties Defendant. — There can be no defect as to parties defendant in a complaint where the' annulment of an institution of heirs being sought, the only instituted heir has been made the party defendant, for according to the complaint he is the only party interested in the final determination of the controversy.</p> <p>Id. — Misjoinder oe Actions. — -A misjoinder of actions does not exist in a complaint where the right of action of an acknowledged natural child is exercised as ground for the annulment of an institution of heirs.</p> <p>Id. — Lack oe Cause oe Action — An Ambiguous, Unintelligible, or Uncertain Complaint. — The plea that the predecessor in interest had acknowledged the plaintiff as his natural child, when the latter was baptized and confirmed by the church and that he had treated and considered him throughout Ms lifetime as such natural child, is sufficient reason for alleging that the plaintiff is an acknowledged natural child of the predecessor in interest, and considering the terms of tMs allegation, it must be presumed, for the purposes of a demurrer, that such acknowledgment was effected in an authentic manner, as otherwise he could not be considered an acknowledged natural child, wherefore such a plea is sufficient to sustain the action for annulment of the institution of heirs by reason of preterition, and to decide that the complaint is neither ambiguous, unintelligible, nor uncertain.</p> <p>Natural Child — Proof oe Acknowledgment. — The acknowledgment of the-plaintiff’s filiation by the testator having been adduced as one of the fundamental facts of an action for the annulment of an institution of heirs, without exorcising the action for acknowledgment, and said acknowledgment having been denied by the party defendant, the only evidence admissible at the trial, wiih reference to this particular, is the public and authentic document establishing such acknowledgment., or the executory judgment'decreeing the same.</p> <p>Id. — Institution oe the Action.- — The institution of the action for acknowledgment is necessary in eases where the father has failed to acknowledge the child or refuses to do so in a solemn manner. In order to dispense with such action it ’s required that an authentic and autlioritive record of the ae-aeknowledgment should exist, or that said acknowledgment has been adjudged by a court of competent jurisdiction.</p> <p>Id. — The acknowledgment affects the very existence of the right, but an acknowledgment, in whatsoever manner made, either directly or indirectly, without an authentic record thereof, does not constitute, according to Law 11 of Toro, sufficient title for the exercise of rights of succession.</p> <p>Id. — Prescription of the Action. — The action for acknowledgment, in cases where it must necessarily be resorted to, owing to the father’s refusal to make it, is susceptible of prescription, even in the matter of the acknowledgment of natural children born under the régime of the Law of Toro.</p> <p>Id. — The essential and necessary elements of the filiation and acknowledgment of natural children are those having reference to the capacity of the child to be acknowledged and to acts that are necessary to determine the acknowledgment; but the duration of the right of action to obtain it judicially is an incident which the legislator can at any time modify, provided that the person who has or claims to have said right be not deprived, in absolute terms, of the action to secure the declaration thereof, and is allowed a reasonable time to prosecute the same.</p> <p>Id. — Prescription Under the Eégime oe the Law of Toro. — Even if the provisions of the Spanish Civil Code or of the Eevised Code were not aqiplicable, in the matter of prescription, to a ease of acknowledgment regulated by tbe Law of Toro, Law 63 thereof, fixing 20 years for the prescription of personal actions, would still be applicable, that of acknowledgment or affiliation being of a similar character.</p> <p>Judgment — Bbcord Thereof. — A judgment is the final determination of the rights of the parties in a suit or proceeding. A judgment must be presumed to have been entered of record by the clerk of the court, so long as there exists no evidence to the contrary.</p> <p>Id. — Bes Judicata. — The acknowledgment of a natural child in an action to establish filiation having been denied by final judgment, each decision constitutes res judicata and has effect in another action where there being an identity of litigants and of the character in which they sue or are sued, the annulment of an institution of heirs is sought, and where the principal ground of such annulment would have to be the acknowledgment of said natural child, with all the attending rights, for in that case there is also an identity in the things sued for and in the cause of action, elements whidh are necessary for the validity of the plea of res jitdicata.</p> <p>Litispendencia. — The action in this case having been instituted in the District Court of San Juan, and the latter having declared that it was not competent to take cognizance of the matter, it was again brought before the District Court of Areeibo, where the defendant pleaded the exception of litispendeneia. Held, on appeal, that it was not possible to consider the existence of litispen-dencia alleged, inasmuch as the decision of the District Court of San Juan had 1 ecn complied with as to the plaintiff, by the fact of his having applied to the court designated as competent, and as to the defendant, since said decision was in his favor, no appeal could he take therefrom.</p> <p>Allegations — Demurrer—Defect as to Parties Plaintiff. — The exception of defects as to parties plaintiff, pleaded in this case where rights of succession are asserted, said exception being based on the allegation that the plaintiffs have assigned to certain persons an aliquot part of the property and amounts of whatever kind that they may receive by virtue of this suit, cannot be sustained, inasmuch as such assignment does not involve the transmission of hereditary rights to said persons, and the interest the latter may have in the controversy is not of such nature as to permit them to sustain the action prosecuted by the plaintiffs.</p>

<p>Appeal from the District Court of Arecibo.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a decision of the Registrar of Property of San • Juan, Section 1.</p> <p>Tlie facts are stated in the opinion.</p>

<p>Appeal from a decision of the Registrar of Property of Caguas.</p> <p>The facts are stated in the opinion.</p>

<p>Injunction. — The propriety of a writ of injunction pendente lite having been contested and a motion filed for the dissolution thereof, the same question cannot be raised and discussed in an answer, the proper course being to discuss th.e matter definitively under the procedure in which the main issue is to be examined and determined and where the injunction temporarily decreed may be made final.</p>

<p>Commission — Patria Potestas — Cancellation oe Encumbrances. — In the case at bar a mother, with the patria potestas of her infant daughter, executed a power of attorney conferring upon a third person, among other powers, the following: “Second: To collect and receive all moneys owing to the said minor, accepting in payment thereof real and personal property, securities, stock and bonds of every kind and class; to pay her debts and sign and issue all acquittances, receipts, deeds, and such other documents as may be necessary.” This power of attorney was considered ineffective by the registrar, and an appeal having been taken from his decision, it was Held:</p> <p>(a) That this clause is valid and effective in law, and does not involve a renunciation of the patria potestas, nor contravene any legal provision, since the mother, making use of and exercising the rights which she possesses by reason of the patria potestas, may confer powers on a third person, as her representative, to execute such acts as those set forth in the clause above transcribed.</p> <p>(b) That the mother, with the patria potestas of her child, may cancel an encumbrance constituted in favor of the minor, without the necessity of judicial authorization; but inasmuch as such a cancellation constitutes an alienation, since the creditor thereby relinquishes a right to real property, the attorney in fact must be given express authority so to do, and such express authority is not conferred by the clause of the power of attorney transcribed above.</p>

<p>.Appeal from a decision of tlie Registrar of Property of San Juan, Section 1.</p> <p>Tlie facts are stated in tlie opinion.</p>

<p>Appeal — Contradictory Evidence. — The finding of the court below, in capea of contradictory evidence, must be accepted by the appellate court, unless it be shown that the former was actuated in its decision by passion, prejudice, or partiality, or that it committed manifest error.</p> <p>Id. — Effectiveness of Judgment — Damages.—The taking of evidence at the trial for the purpose of proving the damages caused to the defendant by an attachment levied on his property, in pursuance of an order to secure the effectiveness of a judgment, does not lie, for only in the event of the dismissal of the complaint could the damages caused by said attachment be alleged and proven.</p>

<p>Transfer of Action — Affidavit of Merits. — An affidavit stating only that the defendant resides outside the district under the jurisdiction of the court in which the action commenced, is not the-affidavit of merits mentioned in section 82 of the Code of Civil Procedure.</p> <p>Id. — An affidavit of merits is that in which the affiant states facts- sufficient to enable the court to determine whether or not he has a good ground of defense to the plaintiff's action upon the merits. If this affidavit is not.made the transfer of the case must be denied.</p> <p>Id. — Allegations—Demurrer—Jurisdiction—Defendant's Eesidence. — The question as to the court's lack of jurisdiction by reason of the defendant’s place of residence cannot be raised by means of a demurrer, because upon the defendant’s appearance to file the same, if the transfer has not been applied for in due form, the party remains under the jurisdiction of the court, pursuant to the provisions of sections 76 and 82 of the Code of Civil Procedure.</p> <p>Evidence — Testimony of Witnesses — Hearsay Testimony. — Hearsay testimony has probatory force in cases where no exception has been taken to the admission thereof, or has the veracity of the witnesses been questioned, or when such testimony is not essentially incredible or improbable.</p> <p>Id. — Natural Chiid — Proof of Filiation and Acknowledgment. — Only by weighing the evidence on filiation and acknowledgment, taken in each ease, can it be determined whether such evidence is clear and convincing. The isolated nature of a man's public and private acts is not what should necessarily serve as ground to determine whether or not the acknowledgment and filiation have been fully established. Should a witness testify in positive terms that a person acknowledged that he was the father of his child and the court finds in favor of the child, the mere fact that this was the only act of the father is not sufficient for a reversal.</p> <p>Id. — Evidence Yoluntarily Suppressed. — It must be presumed that evidence voluntarily suppressed would have proved adverse had it been given; and if evidence of an inferior character is presented, it must likewise be presumed, that had one of superior character been offered it would have proved adverse; wherefore, should a party abstain from testifying about facts wherewith he is acquainted, it is to be presumed that his testimony on such facts would have been adverse to him.</p> <p>Support — Obligation to Reimburse. — When the person who, unknown to the one bound to give support, supplies it to the person entitled thereto, is an uncle of the latter, such person has not the character of a stranger, for the purposes of section 1795 of the Civil Code, and therefore he cannot demand reimbursement on account of such support.</p>

<p>Appeal from the District Court of Arecibo.</p> <p>The facts are stated in the opinion.</p>

<p>ALLEGATIONS — Demurrers—Cause OF Action — Libel.—It is alleged in the complaint that the defendant, with the intention of dishonoring and defaming the plaintiff by illegally and falsely charging him with having begun the commission of a felony, wrote or caused to be written in a public instru-. ment the following words, which were read by several persons and refer to, the plaintiff: “And, thus viewed, the complaint to which we refer could• reasonably he considered as an attempt to cheat,' although we attribute it only to the weakness of memory of Juan Ignacio Capó’’ (the plaintiff). Held :</p> <p>(а) That the demurrer to the complaint, on the ground thht it does not state facts sufficient to constitute a causa of action, did lie, be-, cause the words thus used did not involve a direct accusation of the commission of a crime on the part of the plaintiff;</p> <p>(б) That the use of such words may involve a malicious act of the defendant, but without a mere specific allegation of malice or falsehood on the part of the latter, and in the absence of some allegation’ to the effect that the plaintiff has been prejudiced by the use of such words, the complaint must be considered as not stating facts sufficient to constitute a cause of action;</p> <p>(e) That the court cannot determine, from the complaint, whether or not the defendant was justified in using such words, there being nothing in the complaint to show that the plaintiff was in any way prejudiced by their use, and that said expressions do not constitute a libel per se, inasmuch as by them the plaintiff, is not charged with the commission of a crime in clear and distinct terms.</p> <p>'Id. — Judgments.—Where. the court sustains a demurrer and the plaintiff doe» not amend his complaint, nor is he given permission to amend the same, the defendant is entitled to a final judgment in his favor.</p> <p>Id. — Costs.—The costs are generally taxed against the party who loses his case, whether the party in whose favor judgment was rendered has requested it or not.</p>

<p>Cancellation-oe Becord. — The cancellation of an encumbrance laid on an estate awarded in testamentary proceedings, with the obligation on the part of the person in whose favor the award was made to pay the debts of said estate, does not lie unless the creditors have been previously heard and defeated in court or have consented to said cancellation.</p> <p>Id. — Proceeding to Obtain Cancellation. — Por the cancellation of the encumbrance referred to in the foregoing paragraph, the parties concerned may avail themselves o of the ordinary procedure, through the proper action, without there being any necessity to follow the procedure prescribed in Title XIII of the Mortgage Law, such encumbrance not being among those enumerated under article 347 of said law.</p>

<p>Appeal from the District Court of Mayagiiez.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Mayagiiez.</p> <p>Tlie facts are stated in the opinion.</p>

<p>Appeal from the District Court of Aguadilla.</p> <p>The facts are stated in the opinion.</p>

<p>Commercial Association — Liquidation—Inventory—Dissolution of Partnership. — The liquidation of a eommerieal association consists in collecting its credits, extinguishing the obligations previously contracted as they fall due, and realizing pending transactions; but the taking of an. inventory of the assets and liabilities for the purpose of ascertaining whether there was any profit or loss in the association, cannot be understood as the liquidation referred to by article 228 of the Code of Commerce, nor can the execution of a deed of dissolution of the association' and assignment of rights and actions by one partner to another be construed as such liquidation.</p> <p>Id. — Commercial Transactions — Transactions of a Civil Character. — Although the dissolution of the copartnership is a commercial transaction, the assignment of rights by one partner to another cannot be considered commercial although contained in the same deed, it being a transaction of a civil character that must be regulated by the code which treats of this matter.</p> <p>Id. — Property Considered Immovable — Judicial Authority to Alienate Property Belonging to Minors. — Bights over immovable property have the character of immovables, wherefore the rights, though indeterminate, which a minor may have 'in a commercial association, with respect to the latter’s real property, have the character of realty, and for the alienation or encumbrance thereof judicial authority is necessary, without which requisite the same cannot be recorded in the registry.</p>

<p>Appeal from the District Court of San Juan.</p> <p>The facts are stated in the opinion.</p>

<p>Record — Owner oe Real Property — Cancellation.—For the purposes of the .Mortgage Law the owner of the real property or property right is considered ‘to he the person who has the same recorded in his favor in the registry. ’Therefore, upon the presentation for record of a deed of assignment or can■cellation of a mortgage credit recorded in favor of a person other than the ■ones executing said deed of assignment or cancellation, the record thereof must be refused, although such conveyance or cancellation be of a date prior to that of the instrument which gave rise to the record of the credit in favor of said person.</p>

<p>Business ■ Transaction by Agent on Commission — Responsibility op Agent With Respect to Principal. — Where an agent follows the instructions of his principal in transacting "business for him on a commission basis, he will be relieved of all responsibility with respect to his principal.</p> <p>Id. — Duty op Principal. — A principal must pay his agent, upon presentation by the latter of an account supported by vouchers, the amount of expenses and disbursements, with legal interest from the date on which the same were-incurred until fully satisfied.</p> <p>Appeal. — Errors which do not affect the substantial rights of parties do not constitute ground for the reversal of the judgment appealed from.</p>

<p>Execution of Judgment. — A stay of execution of judgment at the request of a person not a party to the proceeding, without the filing of a complaint and citation and hearing of the parties to the action, and without furnishing bond or alleging and showing that the petitioner has no other adequate and efficacious remedy, is contrary to law.</p> <p>Parties — Intervention.—Only the parties plaintiff and defendant may intervene in actions, according to the law and rules of the courts, and if any person not a party to the action has an interest in the subject matter thereof he may intervene in said action or proceeding, before the trial, by resorting to the procedure prescribed in section 72 of the Code of Civil Procedure.</p>

<p>Appeal from the District Court of San Juan.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Gfuayama.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of G-uayama.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Humacao.</p> <p>Tlie 'facts are stated in the opinion.</p>

<p>Appeal — Transcript op Eecord — Judgment Boll. — In cases where the defendant has not answered the complaint, the summons and affidavit, or proof of service thereof on the defendant, form part of the judgment roll, and if said documents are not included in the transcript of the record filed for purposes of the appeal, said appeal shall be dismissed.</p> <p>Id. — Entry oe Default. — The memorandum of the secretary placed on the back of the complaint stating that the default of the defendant was duly entered, without including in the transcript the summons and proof of service thereof, does not constitute a sufficient compliance with the provisions of paragraph 1, section 233, ,of the Code of Civil Procedure.</p>

<p>Appeal from a decision of the Registrar of Property of San Juan, Section 1.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a decision of tile Registrar of Property of Cagnas.</p> <p>Tlie facts are stated in the opinion.</p>

<p>Allegations — Demurrer—Jurisdiction—Removal of Cause. — Where the court has jurisdiction over the subject matter of the suit and the defendants file a demurrer pleading lack of jurisdiction over the person of the defendants, on the ground that they reside in another district, such demurrer must be disregarded, because the adequate remedy, according to the Code of Civil Procedure, is to request the transfer of the cause to the proper court, and in failing to do so, the defendants submitted to the jurisdiction of the court.</p>

<p>Appeal — Evidence.—Should all the evidence taken in the lower court not he included in the statement of the ease, either wholly or substantially, the court not having, for the purpose of determining the ease, the same elements that served as ground to the lower court in rendering the judgment appealed from, the latter must be sustained.</p> <p>New Trial — Notice oe Motion Thereeor. — A .motion for a new trial cannot be considered if the mover has omitted to state in the notice of his intention to make it on what document he proposes to base the motion, namely, whether on affidavits, on the record of the trial, on the minutes of the court, bill o£ exceptions, or statement of the case.</p>

<p>Application for a writ of certiorari.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal — Contradictory Evidence. — The finding of the lower court in cases of contradictory evidence must he aecejited hy the appellate court, unless it be shown that said court was actuated hy passion, prejudice, or partiality, or that it committed manifest error.</p> <p>.Sentence in Criminal Causes. — In criminal causes the execution of the sentence must not "be left to the will of the defendant, hut if he is sentenced to pay a fine, imprisonment must he imposed as an alternative penalty in default of payment at the rate of one day for every dollar unpaid.</p>

<p>Appeal — Dismissal.—Although the period of 30 days in which to present the’ transcript of the record is sufficient and within that time it should be presented, however, as the appellant has shown good and just cause why this court should use its discretionary power to permit him to prosecute the appeal, namely, that the term having expired on a Saturday he presented the transcript on the following Monday, the appellant acting in the belief that an extension allowed him for this purpose by the lower court was valid, the motion to dismiss the appeal should be overruled.</p>

<p>New Trial — Appeal—Appellant’s Brief — Assignment of Errors. — Although noncompliaiiee on the part of the appellant with rule 42 of the Supreme Court, by omitting the assignment of errors upon which his appeal is based, would be sufficient reason for declining to consider it; however, in the case at bar the court passes over said omission, on the assumption that the error of the court below, which would probably be set forth by the appellant, consisted in overruling the motion for a new trial.</p> <p>Id. — Surprise—Admission and Exclusion op Evidence- — The surprise' or accident which under paragraph 2, section 221, of the Ood’e of Civil Procedure may give rise to a new trial is not the surprise produced by the admission or exclusion of evidence, but such as might arise when the applicant is misled by previous statements of a witness and subsequent testimony given by such witness contradictory of his statement, it being necessary to show that such surprise did not arise from the fault or negligence of the applicant fan a new trial.</p> <p>Id. — Newly Discovered Evidence — Diligence oe the Party — Allegations in. Motion eor a New Trial. — The faets of the materiality of the evidence and that it is newly discovered and could not by the use ai reasonable diligenae1 have been discovered and offered at the trial, and that such diligence was. really used by the applicant, must all be set forth in the motion for a new trial, and must also be proven by affidavits or otherwise1,, to the satisfaction; of the court. i •</p> <p>Id. — Discretion oe the Court. — Courts have a large discretion in granting or refusing new trials based on newly discovered evidence1..</p> <p>Id. — Abuse oe Discretion. — In order to sustain an appeal for refusal to grant a new trial it must be shown that the court abused its discretional powers in: refusing said motion.</p> <p>Id. — Beeect oe Newly Discovered Evidence — Difeerent Result oe the Trial. — In order to decree a new trial based on newly di'seovered evidence,, the latter, if admitted, should be such as would change1 the result of the1 former trial or cause a different judgment to be entered'.</p> <p>Id. — Manifest Injustice — ^Reversal of an Order Refusing a New Trial. — ■ Unless manifest injustice has been done in refusing a new trial, the appellate court should not reverse the order of the court below made in the exercise of its discretion.</p> <p>Id. — Insufficient Proof — Contradictory Evidence. — In cases where the evidence is contradictory and one of the grounds of the'motion for a new trial should be insufficient evidence, the appellate court must not disturb the findings; ®lr the court below unless satisfied that the decision has been influenced by partiality, prejudice, or passion, or it is necessary to correct a manifest error leading to a miscarriage of justice.</p> <p>Id. — Allegations of ti-ie Complaint — Sufficient Evidence. — The appellate court shall not reverse a judgment on the ground of insufficient evidence when such evidence is sufficient to sustain the allegations made in the complaint, though not altogether as satisfactory as it might be.</p>

<p>Penal Law — Voluntary I-Iomicide — Character of Deceased. — It is incumbent upon the defendant who wishes to introduce evidence of the character and penal antecedents of the deceased to show that he knew of his bad character. Should he not offer to introduce such evidence, the court commits no error in refusing to admit testimony as to the character of- the dead man.</p> <p>Id. — Exclusión of Evidence — Grounds of Decision. — Even where the grounds of a decision excluding testimony be erroneous, the giving of false ground for such ruling is no reason for reversing the judgment appealed from if sa,id testimony has been properly excluded.</p> <p>Id. — Self-Defense—Result of Eailure to Consider this Plea. — An objection made by the appellant to the judgment appealed from on the ground that the court did not give proper consideration to the defendant’s plea of self-defense is tantamount, in its legal effects, to an exception to the judgment, for the reason that the finding was not warranted by the evidence.</p> <p>Id. — Cases Tried by the Jury — Review of Questions Arising During the Trial. — When the court sits with a jury a review of questions arising during the trial is obtained by means of the preservation of exceptions, either to the admission or exclusion of evidence, or to the granting or refusal of instructions to the jury.</p> <p>Cases Tried by the Courts of Law — Waiver of Trial by Jury. — In. oases where the court is substituted for the jury beeause the defendant has waived a jury trial and the finding of the court is general, such finding must be given the samé effect as the verdict of a jury.</p> <p>Id. — Prosecutions for Felony — Misdemeanors—Waiver of Trial by Jury. — • According to the Constitution of the United States a defendant prosecuted for felony may not waive his right of a jury trial, though he may do so in cases of misdemeanor.</p> <p>Id. — Trial by Jury in Porto Rico — Waiver—Constitution of the United States. — The provisions of section 278 of the Code of Criminal Procedure of Porto Rico which allow the defendant the right to elect, in a noncapital case, to be tried by a jury, and if he does not so elect in due time the right of jury trial is deemed to have been waived, do not violate the Constitution of the United States.</p> <p>Id. — Finding on ti-ie Evidence — Review cn Appeal. — It is the invariable doctrine of the courts of the United States that the finding on the evidence by a trial court will not be reviewed on appeal to resolve a conflict in the evidence, unless it be shown that the court below was actuated by passion, prejudice, or some like element.</p> <p>Td. — Judgment Contrary to the Evidence — Contradictory Evidence — Weighing of the Evidence by the Trial Court. — A judgment rendered in a criminal prosecution tried by a court of law, the defendant having waived his right to be tried by a jury, cannot be reversed on the ground that it is contrary to the evidence and that the latter was insufficient, when upon examination of the evidence it appears to have been contradictory, for in such cases the finding of the trial court is final and cannot be reviewed unless it be shown that the'court was moved by passion, prejudice, or partiality.</p> <p>Id. — Review of the Evidence — Appeal from the Judgment — Appeal Prom an Order Refusing to Grant a New Trial. — The principles governing the review of the evidence on appeal from the judgment are the same as those applied to the review of the evidence on appeal from an order refusing to grant a new trial, said principles being equally applicable to both civil and criminal eases.</p> <p>Id. — Plea of Self-Defense — Justifiable Homicide. — To establish a case of justifiable homicide it must appear that something more than an ordinary assault was made upon the prisoner; it must also appear that the assault was such as would lead a reasonable person to believe that his life was in peril or that he was in danger of receiving great bodily injury.</p> <p>Id. — Plea of Self-Defense — Apparent Danger. — Self-defense cannot be successfully pleaded based upon apparent danger; there must be some overt act on the part of the assailant which from its character would give a reasonable man, situated as was the defendant, the ground to believe that there was danger to his life or of deadly violence to his person, without which requisites the plea of self-defense cannot stand.</p> <p>Id. — Plea of Self-Defense — Disparity of Physical Power Between Assailant and Assailed. — Disparity of physical power and strength between two men does not justify the weaker party in resorting to a deadly weapon when threatened with an assault by or with fists alone, unless the circumstances under which they are placed are sufficient to induce him to believe that great bodily injury to himself might result from the assault.</p> <p>Id. — Consideration of Evidence — Expert Testimony. — The court, in weighing the expert evidence, is not hound to accept the conclusions of an expert tending to show that the wounds were produced in some other way than by the barbed wire fence.</p> <p>Id. — Opinion of the Trial Court — Transcript of Eecord. — The opinion of the trial court in support of its conclusion forms no part of the transcript of the record filed on appeal, nor can said opinion be examined in order to determine the findings of fact upon which the trial judge based his judgment.</p> <p>Id. — Review of Pacts Proven — Bill of Exceptions — Statement of Pacts.— The facts proven in the court below can be reviewed only when set forth in a bill of exceptions or statement of facts, and the Supreme Court cannot review facts stated in the opinion of the court as grounds for its judgment.</p> <p>Id. — New Trial — -Judgment Contrary to the Evidence. — A judgment appealed from having been affirmed, because not found contrary to the evidence, as alleged by the appellant, an order refusing a new trial made in the same case and for the same reasons must also be affirmed.</p>

<p>Allegations — Demurrer—Cause of Action. — The complaint filed in this case does not state any cause of action against the defendants inasmuch as of the four allegations contained therein the first two refer to the capacity of the parties, the last to the failure to satisfy an obligation, and the third, which is the essential one, as it would, in a proper case, give rise to the action and furnish ground for the demand, only avers that the plaintiff association is the creditor of the party defendant for a certain sum by virtue of obligations contracted, and this averment does not involve a fact, but a conclusion of law.</p> <p>Id. — Character of Creditor. — The condition of creditor must result from facts creating an obligation the considerations whereof may be different, and these facts must be alleged and specified so that upon their admission or substantiation the aforesaid condition shall have a legal existence.</p> <p>Allegations of Law. — The allegation made by the party plaintiff that he is the creditor of the party defendant is the same as the allegation that the party defendant is the debtor of the iilaintiff; and wjth respect to the latter it has been established by jurisprudence that it is an allegation of law and as such has no effect, nor can it substitute or supply facts.</p> <p>Id. — The omission in a complaint to state facts that are necessary to constitute the cause of the action exercised cannot be supplied by the results of the evidence taken at the trial, inasmuch as the complaint, by itself alone, should set forth all such facts as are necessary to constitute said cause of action.</p> <p>Obligations — Commercial Instruments — Promissory Notes Made Payable to Order — Prescription.—Promissory notes made payable to order are commercial instruments and, according to the Code of Commerce, extinguish three years after they have fallen due, whether protested or not.</p> <p>Id. — Settlement With Creditors. — The settlement made by the debtor with his creditors in proceedings for suspension of payment whereby the latter have allowed tlie former á specified period of time in which to pay all his debts does not affect' the nature of the obligation which, if commercial, must not be understood as ceasing to be prescriptible, according to the Code of Commerce, in order to be governed by common law, for, if such obligation was not remitted or extinguished by another in consequence of the settlement, the obligation stands, with no alteration other than the accidental one of the time allowed for its satisfaction, but retaining its special character and legal efficacy.</p>

<p>Record — Failure to Specify Superficial Extent — Curable Defect. — The failure to specify in the title the superficial extent of an estate constitutes a curable defect which should he noted in the record thereof at the registry of property.</p>

<p>Appeal — Dismissal—Notice oe Appeal. — The appellant estate in this case has not formally figured as a party to the suit in the court below, nor does it appear that it has served notice of the appeal on the adverse party, for which reasons said appeal should be dismissed.</p>

<p>Agency — Power of Agent to Borrow Money.' — -The question involved in this ease bears upon the construction to be given to the following clause: "To sell said property, actions and-rights or credits; to exchange, assign, lease, encumber, and mortgage the same; to execute acquittances and cancellations; to make settlements or compromises of all kinds, whether haying reference to the mere administration or to the freest disposition of said properties.” .Seld: That in this power of attorney the power to borrow money is not included, for the latter, to be understood as having been conferred, must be expressly stated.</p>

<p>Appeal from a decision of the Begistrar of Property of San Juan, Section 1.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of San Juan.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Ponce.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal Prom: Judgment Rendered by Municipal Court — Jurisdiction.—When an appeal by both parties has been taken to the district court from a judgment of the municipal court said district court has jurisdiction to hold a new trial and to consider and decide all the issues involved in the allegations, even where the appeal by one of the parties should have been taken after the expiration of the term and be essentially defective.</p> <p>Certiorari — Allegations.—The circumstance that the defendant, in an amended answer, failed to reproduce the facts of the original counterclaim and confined himself merely to treating them as reproduced constitutes a defect of form the correction of which may be requested by the plaintiff in the court below; but should he waive this right, the issue of a writ of certiorari to obtain the review thereof does not lie.</p>

<p>Record oe Easement. — Upon application for admission to record of a right of way over a specific estate, through the presentation of an instrument not involving the creation of such easement, but the execution of another contract, although therein the applicant has reserved the right of way created by another instrument the stipulations whereof are omitted in applying for said record, the latter must be refused, the party concerned being reserved his right to apply again at the registry with the documents establishing said easement for the purpose of having the same recorded.</p>

<p>Appeal from the District Court of Gruayama.</p> <p>The facts are stated iu the opiuion.</p>

<p>Damages — Negligence per se. — The mere fact of a train's running at a great velocity is not negligence per se provided the same is consistent with the safety of the passengers; neither is it such negligence when the train runs at a greater speed than that fixed in the time-table, if it be shown that in establishing said speed it was done for the safety of the passengers and not from any other circumstance independent thereof. In these cases it must be proven that the velocity of .the train, considering the .conditions of the locality, was inconsistent with the safety of the passengers.</p> <p>Id. — Indemnity That Must be Allowed. — In claims of damages for negligence the indemnity must not be restricted to the expenses which the accident may have occeasioned to the plaintiff, but the latter having alleged and proven that he had sustained damages which cannot be valued in dollars and cents the judge must estimate the same in order to fix the amount of the indemnity, for in actions of this character the sufferings and probable consequences of the aeeident constitute an element determining the damages that serve as ground for the claim.</p> <p>Appeal — Evidence—Credibility or Partiality oe a Witness. — The credibility or partiality of a witness may be investigated in the cross-examination, and the parties have a right to make all such cross-questions as may lead to that object; however, when one party is not permitted to propound cross-questions tending thereto, though not absolutely denied the right to prove such point, but is allowed to do so by means of other evidence, the error is not sufficient to justify a reversal of the judgment.</p> <p>Id. — Consideration oe Contradictory Evidence. — The finding of the court below in cases of contradictory evidence must be accepted by the appellate court unless it be proven that the former was actuated by passion, prejudice, or partiality, or that it.committed manifest error.</p>

<p>Appeal from the District Court of Máyagüez.</p> <p>The facts are stated in the opinion.</p>

<p>Complaint — Assault With Aggravating Circumstances. — In a complaint of assault with aggravating circumstances there is no necessity of specifying that the weapon made use of hy the accused was deadly, it being sufficient to state the kind of weapon used, leaving to the consideration of the court the circumstance as to whether or not it was deadly.</p> <p>Id. — Where the Penalty Does Not Correspond to the Classification of the Crime — Appeal—New Trial. — It appearing that the accused in this case was found guilty of assault with aggravating circumstances and that the punishment imposed upon him corresponds to assault without aggravating circumstances, and as the record does not contain sufficient elements to determine whether the classification of the crime or the penalty imposed therefor was erroneous, since the evidence taken at the trial has not been presented and the classification of the erime made in the complaint is not sufficient to decide that the one contained in the sentence was correct, a new trial must be ordered.</p>

<p>Appeal from the District Court of San Juan, Section 2.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a decision of the Registrar of Property of San Juan, Section 1.</p> <p>MotioN that record he officially entered.</p>

<p>Contract — Commercial Purchase and Sale — Consummation oe the Contract. — It appearing from the evidence taken in this ease that the plaintiff delivered to the defendants the invoice of 191 bags of sugar he had sold them, specifying the number, weight, grade, price, and total amount due; that the defendants received them without any objection whatever; that the storekeeper was notified that the sugar remained for account of the defendants, to whom it had been sold, and that the latter had disposed of part thereof, the merchandise must be considered as having been delivered and the commercial contract of purchase and sale as having been consummated; and the loss of the sugar, occurring after the consummation of the contract, must be borne by the defendants, article 333 of the Code of Commerce being-applicable hereto.</p> <p>Id. — Article 334 of the Code of Commerce is not applicable to this ease, because the sugar having been weighed by the storekeeper upon his receiving the same, the entire quantity on deposit was placed at the disposal of the defendants, with delivery of the invoice specifying the weight of the bags and-the number of quintals of each grade, as also the price of each and total amount due by the purchaser, and the plaintiff, according to the terms of the contract, had nothing further to do for said contract to be considered as having been perfected, the merchandise from that moment remaining on deposit for account and risk of the purchasers.</p>

<p>Appeal from tbe District Court of San Juan.</p> <p>Tbe facts -are stated in tbe opinion.</p>

<p>Condemnation of Property — Amount of Indemnity. — Upon justifying the necessity of taking the land which is sought to he condemned, the indemnity allowed the owner should comprise not only the value of the property condemned hut also a compensation for the damages caused hy the loss of the property.</p> <p>Id. — Contradictory Evidence — Finding of the Court Below. — The evidence referring to the amount of the indemnity that should be allowed in this case being contradictory, and as it has not been shown that the lower court was actuated by passion, prejudice, or partiality, or that it had committed manifest error, its finding must be accepted, especially when the defendants have not proven the amount of damages that the deprivation of the land would have caused them and the sums fixed by the lower court seem to be the proper compensations for said deprivation.</p>

<p>Criminal Law — Appeal—Bill op Exceptions — Statement op Eacts — Manifest Errors. — Where there is no bill of exceptions nor statement of the ease, and where from the record no fundamental error appears to have been committed which would warrant the reversal of the judgment appealed from, the same must be affirmed.</p> <p>Id. — Erroneous Sentence — Alternative Sentence — -Amendable Errors.- — - Where the record shows that the only error committed consisted of imposing' the alternative punishment of fine or imprisonment, such error may be corrected by this court by amending the judgment appealed from by fixing the fine as the principal penalty and the imprisonment as the alternative.</p>

<p>Application for a writ of certiorari.</p> <p>The facts are stated in the decision.</p>

<p>Criminal Law — Offense of Carrying Concealed Weapons — Municipal Courts — Jurisdiction Thereof. — Municipal courts have jurisdiction to take cognizance of all tlie offenses comprised in section 4 of the act to prohibit the carrying of arms, approved March 9, 1905, because said section expressly confers such jurisdiction on said courts.</p> <p>Id. — Question of Fact — Weighing of Evidence. — The determination of the place and occasion on which the defendant was detected carrying the revolver is a question of fact, and the conclusion of the trial court must not be disturbed when, after examining the evidence, it does not appear that the judge was influenced by passion, prejudice, or partiality, or committed manifest error.</p> <p>Id. — Fine—Subsidiary Imprisonment. — In accordance with the decision rendered in the case of The People v. Puente, 14 P. It.,-109, decided February 17, 1908, and The People v. Vázquez, 17 P. R., 298, decided March 23, 1911, subsidiary imprisonment in default of the payment of the fine cannot be imposed on the defendant when the sentence is fine and imprisonment, and a sentence to that effect may be modified on appeal.</p>

<p>Appeal from the District Court of San Juan, Section 2.</p> <p>The facts are stated in the opinion.</p>

<p>Jurisdiction oe Municipal Court — Nullity of Sale at Public Auction.— Under section 4 of an act reorganizing the judiciary, approved March 10, 1904, municipal courts shall have jurisdiction in all civil matters within their districts to the amount of $500, including interest.</p> <p>Id. — Nullity op Sale at Public Auction — Amount in Controversy. — In accordance with the preceding doctrine, a municipal court has no jurisdiction t.o take cognizance of an aetion of nullity of sale at public auction and of the subsequent acts of executing a deed and recording the same in the registry of property when the selling price exceeds $500, as it does in the case at bar, even though said sale was effected in an aetion to recover a mortgage credit of less than $500.</p> <p>Id. — Jurisdiction—Competency.—Jurisdiction, is the power with which courts are vested to administer justice; and competency is the power courts have to. take cognizance of certain causes either on account of the nature of th@ things or on account of the persons.</p> <p>Id. — Consent of Parties. — If by law a court has no jurisdiction to take cognizance of a cause, the consent of the parties can never confer such jurisdiction.</p> <p>Competency — Submission of Parties. — If a court lacks competency to take cognizance of an aetion, it acquires sueh competency, if it has jurisdiction of said! aetion, by agreement or submission of the parties in accordance with sections 76 and 77 of the Code of Civil Procedure.</p> <p>Id. — Demurrer for Lack 'of Jurisdiction — Want of Competency — Transfer of Trial to Proper District. — The demurrer for lack of jurisdiction, as comprised in subdivision 1 of section 105 of the Code of Civil Procedure, is pleadable when jurisdiction is lacking, but when the court has sueh jurisdiction but lacks competency — that is, when the complaint has not been filed in the district court that according to law may take cognizance thereof — the demurrer, for lack of jurisdiction, should not be pleaded, hut an application should be made for a transfer of the trial to the proper district, as provided in section 82 of the Code of Civil Procedure.</p>

<p>'Conflicting Evidence — Estimate of Trial Court — Manifest Injustice. — It is a well-recognized rule, established in American jurisprudence and in several decisions of this court, that where the evidence is conflicting the estimate made by the trial court will not be disturbed on appeal unless clearly wrong or working manifest injustice to the losing party.</p> <p>^Employers’ Liability — Federal Statute of June 11, 3906 — Question Raised for First Time on Appeal. — Although the question of whether or not the Federal Employers’ Liability Act of June 11, 1906, is applicable to a case of damages has not been raised in the lower court, such question may be considered on appeal.</p> <p>Id. — Application to Porto Rico of Federal Employers’ Liability Act of June 33, 1906. — The pleadings of the complaint in this ease being insufficient upon which to apply the Federal Employers’ Liability Act of June 33, 3906, it is unnecessary to decide whether or not said Federal statute is applicable to Porto Rico and the effect that may have been produced in're-, gard to the validity of this law in the Territories of the United States by the declaration of the Supreme Court of the United States regarding the unconstitutionality of the act in so far as relates to interstate commerce. (ffl Paso and Northeastern Pailway Go. v. Gutiérrez, 215 U. S., 87.)</p> <p>Id. — Employers ’ Liability Act of Porto Rico — Insufficiency of Complaint.— In a complaint filed by an employe against his employer to recover damages for injuries received, which, due to the allegations thereof, do not fall within paragraphs 2 and 3 of section 322 of the Revised Statutes of Porto Rico, being therefore governed by paragraph 1 of the same section, and which does not state that the injuries were caused, or not discovered, or not remedied through the negligence of the employer or of any person in his service, does not state facts sufficient to constitute a cause of action in accordance with said law.</p> <p>Id. — Knowledge of Defects or Dangerous Condition of Place Where Working — Acceptance of Risk. — Where an employe becomes aware of the dangerous condition of the place wherein he works and of the defects thereof, and continues to work therein after-calling his employer’s attention thereto, the latter having refused to correct such defects, it is assumed that the employe accepts the risks consequent to the dangerous condition of the place and cannot later, in ease of accident, claim damages.</p>

<p>ApplicatioN for a writ of certiorari.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of San Juan, Section 1.</p> <p>The facts are stated iii the opinion.</p>

<p>Costs — Continuance of Trial — Unappealable Orders. — Tie taxation of costs requisite to granting the continuance of the trial of a case rests in the dis-cretional power which section 335 of the Code of Civil Procedure confers upon the courts, and under the law an appeal does not lie from an order taxing such costs. Said costs are not included in the act of March 12, 1908, relative to costs and which refers only to those accruing from the final determination of an action.</p> <p>Id. — Voluntary Dismissal ©f Complaint — Entry of Judgment of Voluntary Dismissal — Pinal Judgment. — Where an action is voluntarily dismissed by the jdaintiff, and an order is made by the court dismissing the plaintiff’s action with costs taxed against him, such an order is not final and does not terminate the matter before a judgment has been entered; and until this requisite has been complied with a court has no power to tax the costs.</p>

<p>Change oe Avenue — Action to Determine Validity oe Will — AVritten Petition to Court. — According to section 82 of the Code of Civil Procedure, the •written petition for a change of venue should he addressed to the court which is empowered to grant or deny the same, and not to the adverse party.</p> <p>Id. — Erroneous Grounds oe Decision — Decision Justified on Other Grounds — • Powers oe Supreme Court. — Although the grounds of a decision appealed from may he erroneous, the Supreme Court has power to examine as to whether such decision is justified on other grounds conforming to law.</p> <p>Id. — Construction oe Statute — Actions on Validity oe AVills — Jurisdiction oe District Courts. — Section 66 of the Law of Special Legal Proceedings, as amended by the act of March 8, 1906, does not deprive district courts other than that of the district wherein the deceased last resided, or of the district wherein the greater part of his property is situated, of jurisdiction in actions on the validity of wills.</p> <p>Id. — Actions on Validity oe AVills — Provisions oe Code oe Civil Procedure.— All the provisions of the Code of Civil Procedure in regard to filing the complaint, the commencement, summons, answer, change of venue, demurrer, trial, and so forth, govern and are applicable to actions to determine the validity of wills which are mentioned in section 66 of the Law of Special Legal Proceedings, approved March 9, 1905.</p> <p>Obiter Dictum. — The paragraph of the opinion delivered by this court in the ease of Fajardo v. Tió, 17 P. R., 220, decided February 24, 1911, constitutes obiter dictum, and reads as follows: “This is not the affidavit of merits to which section 82 refers. An affidavit of merits is one in which the affiant sets forth sufficient facts to permit the court to see that he has a good defense to the action.' ’</p> <p>Id. — Sufficiency oe Affidavit of Merits — Opinion oe Counsel — Good Defense to Action. — The affidavit of merits requesting the transfer of an . action wherein it is alleged that the defendant has faithfully stated the facts of the case to his counsel, and that in the opinion of the latter the former has a good defense on the merits of his action, is sufficient and a full compliance with the requirements of the Code of Civil Procedure on the subject.</p>

<p>Appeal from the District Court of Humacao.</p> <p>The facts are stated in the opinion.</p>

<p>Nullity of Contracts — Defense Not Set North in Pleadings. — According to the judgment of the Supreme Court of Spain, dated November 26, 1873, and other analogous decisions, the nullity of a contract cannot be set forth as matter of defense when such nullity has not been stated in the pleadings.</p> <p>Defense Not Alleged by Defendant. — It is a general rule of procedure that no defense may be set up at the trial of which the complainant has no notice.</p> <p>Depositum — Rights of Depositor — Presumed Illicit Source of Money. — When a person receives a sum of money and deposits the same with another, even in the alleged assumption that the source of the money was, as it may have been, an illicit transaction with a third party, the depositor has good title to said sum of money as to all the world except the party defrauded, and the maxim in pari delicto potior est conditio defendentis is not applicable.</p> <p>In. — Depositor's Cause of Action. — When a party deposits a sum of money with another he has a cause of action, to recover said sum, notwithstanding-the fact that it has been alleged at the trial that such money was obtained by defrauding a third party.</p>

<p>Dominion. Proceedings — Petitioner With Written Dominion Title — Public Deeds. — Although article 395 of the Mortgage Law authorizes dominion proceedings to be instituted only by owners who have no written title of dominion, this should be understood to apply to persons who have no title of dominion recordable in the registry of property.</p> <p>Id. — Classification of Titles — Powers of Registrars — Judicial Decisions in Dominion Proceedings. — Where dominion proceedings have been instituted by a person who acquired the property under a public deed, and notwithstanding this fact the court holds the dominion to have been established, it is because in its judgment the said deed was not recordable; and as the registrar has no power to pass upon the grounds of judicial decisions, he cannot refuse the record on the ground that the acquisition was made under a written title.</p>

<p>Costs Under Former Law op Civil Procedure — Appealable Orders — Special Order Made Apter Pinal Judgment. — An order overruling a motion requiring that the records he again sent to two lawyers for an opinion as to the memorandum of attorney's fees and costs under the former Law of Civil Procedure and directing that the ease be filed, is appealable because it is a special order issued after final judgment and falls within paragraph 3 of section 295 of the Code of Civil Procedure.</p> <p>Id. — Time to Collect Costs — Execution op Judgment. — The provisions of section 239 of the new Code of Civil Procedure are applicable with respect to the limitation of time during which costs and attorney’s fees incurred prior to July 1, 1904, may bo collected, and since the collection of costs constitutes the execution of part of the judgment, such collection cannot be made after the lapse of five years, counting from the date of the judgment, by virtue of which the collection of costs is sought.</p> <p>Application -op New Law op Civil Procedure to Cases Pending at Time Same Went Into Effect — Collection of Costs. — The laws of procedure sire of a public character, and in the absence therein of a provision to the. contrary their provisions govern immediately after they have gone into effect though suits may have been commenced under a different law. But v.here the statute contains a provision relative to the term within which a judgment mpst be executed, such statute is applicable to judgments obtained under a former law, even when the latter provides differently or makes no provision at all concerning such term.</p>

<p>Appear from a decision of the Registrar of Property of G-nayama.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Ponce.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Appeal from the District Court of Mayagüez.</p> <p>The facts are stated in the opinion.</p>

<p>Costs — Construction of Laws of Costs. — The right to costs is to be regarded as wholly of statutory origin. To claim costs in legal actions, a statute upon which to base the claim must exist. Provisions of law relative to costs must be strictly construed.</p> <p>Costs and Attorney’s Pees in Supreme Court. — There is no law in force in Porto Eico expressly providing that costs, including attorney’s fees, in appeals heard by the Supreme Court may be recovered.</p> <p>Costs and Attorney’s Pees in District and Municipal Courts.' — In accordance with the law in force, on deciding an appeal the Supreme Court has power to tax the costs, including attorney’s fees, that originate in the prosecution of the suit in the district court and in the municipal court, in a proper case, if the subject matter exceeds $500.</p>

<p>Unappealable Decisions — Demurrers.—Decisions of the courts passing upon demurrers do not terminate the ease. To produce sueh effect, it is necessary that they be entered as judgments in order also that the Supreme Court may take cognizance thereof on appeal.</p>

<p>Appeal from the District Court of Mayagiiez.</p> <p>The facts are stated in the opinion.</p>

<p>Damages — Lack op Evidence — Nominal Damages. — When in an action to recover damages the plaintiff fails to prove the real existence thereof, the court commits no error in deciding against the plaintiff, although in certain eases it may award him nominal damages.</p> <p>■Occupation op Land — Action to Recover Rental. — In the absence of a contract of lease of a parcel of land occupied in good faith by the defendant in the belief that it belonged to The People of Porto Rico and not to the plaintiff, the latter cannot claim the payment of rentals.</p>

<p>Action of Ejectment — Sale of Seal Property — Consummation of Contract. — Prom the moment a contract of sale of rural property is perfected by the agreement of the parties and the possession of the property sold, said contract has legal effect between the parties, their heirs and successors in interest, the fact that no public or private instrument of such sale has beent executed not affecting the validity of the contract.</p>

<p>Opinion op Trial Judge — Transcript . op Record. — The opinion of the trial judge is not a necessary part of the record, but should any be delivered it is good practice to include the same in the transcript of the record sent to the Supreme Court for a more thorough understanding of the caso.</p> <p>Negligence op Dependant — Damages.—In actions for damages, based on the negligence of the defendant, it is not sufficient to show that the latter was in some manner negligent, but it is necessary to show also that said negligence was the real cause of the accident.</p> <p>Contributory Negligence — Damages—Accident.—It being alleged by the de-' fendant that the accident was due to the plaintiff’s own negligence, and it appearing from the evidence that said negligence in fact existed and in such a degree that without the same the accident could not have occurred, the plaintiff is not entitled to recover for the damages he may have sustained. i</p>

<p>Secondary Evidence — Loss of Original Document — Copy of Documents.— During the trial of the ease the plaintiff: introduced evidence to show that the original copy of certain proceedings to secure a conciliation, which was alleged in the complaint, had been lost, and filed a simple copy thereof. The defendant objected to said evidence and the court, notwithstanding the fact that it believed that the loss of said original had been shown, denied the admission of said copy, inasmuch as it did not appear from the same that the defendant, who also appeared in said proceedings to secure a conciliation as such defendant, had signed it, or that being unable to sign, a witness had signed at his request. Meld: That the court violated section 24 of the Law of Evidence in not admitting the secondary evidence.</p> <p>Proceedings to Secure Conciliation — Old Law of Civil Procedure — Repeal.—• General Order No. 118, series of 1899, which substantially changed the civil procedure, having been put in force, proceedings to seeure conciliation became unnecessary in the institution of civil actions, and the old laws of civil procedure upon the subject were virtually repealed.</p> <p>Acknowledgment of Debt — Personal Action — Prescription.—A debt having been acknowledged before a municipal judge, the secretary of the court, and two persons called “hombres buenos,’’ after General Order No. 118, '•series of 1899, was put in force, and said acknowledgment having been made to appear in writing, it is impossible to prevent the introduction of evidence as to the holding of said proceedings, whose importance shall be' considered by the judge upon rendering the judgment. The action to which the creditor may resort to claim the payment of a debt thus confessed is a personal one which only prescribes in 35 years.</p>

<p>Criminal Law — Correction of Kecord — Acts Coram non Judice — Power to Alter, Modify, or Supplement Kecord. — The record in the appeal of a criminal action cannot be supplemented by means of a motion to correct the same based on rule 55 of this court with a certificate comprising several parts of the record of another criminal' action prosecuted against the same respondent, where it has not been shown that they were introduced as evidence in the lower court, nor were before the court in deciding this ease, nor were shown to the defendant, nor were included in the bill of. exceptions which, certified by the judge, forms part of the record of this appeal. Said certificate is not accompanied by an affidavit to prove these facts. This court is powerless to alter, modify, or supplement a record submitted in a certain form. To do so would be an act coram non judicc. (See Calaf v. Calaf, 16 P. K., 795.)</p> <p>Id. — Rule 55 of Supreme Court — Construction Thereof. — Rule 55 of this court refers only to that part of the records which, through inadvertence or any other cause, have been unduly omitted from the transcript.</p>

<p>Appeals From Municipal Courts — Unappealable Orders — Revision op Orders. — In accordance with the law regulating appeals from municipal courts, approved March 11, 1908, all orders or rulings of a municipal court setting aside a judgment rendered in default and the attachment levied for the execution thereof, or refusing the reconsideration of a previous order de-daring null the adjudication of a property erroneously sold at public auction, all of which orders have been made in the same suit wherein a final judgment 'was rendered declaring that the plaintiff had abandoned his complaint and sentencing him to the payment of a certain sum of money, are unap-pealable, as the aforesaid three orders may be reviewed by the district court in hearing the appeal taken from the final judgment.</p> <p>Intervention in Regard to Eeal Property — Annulment ojt Attachment and Adjudication Requested by Dependant. — The proceeding provided by the Act of March 12, 1908, to regulate trials in connection with title to real property, is not applicable to the ease where the defendant himself prays for and obtains the annulment of an attachment and an adjudication which were erroneously ordered, since, said law refers only to eases where the property of third persons who are not parties to the suit is erroneously attached.</p>

<p>Criminal Law — Appeal—Bill op Exceptions — Statement op Pacts — Manifest Eebobs. — No bill of exceptions, statement of facts, or assignment of errors having been submitted, and it not appearing from the record that any fundamental error has been committed which would warrant the reversal of the judgment appealed from, the same must be affirmed.</p> <p>Id.' — INFOBMATION OP MURDER IN PlBST DEGREE-VERDICT OP MURDER IN SECOND Degree. — The information charging the crime of murder in the first degree having been drawn in accordance with the law, and the instructions given to the jury being correct, and the verdict of murder in the seeond degree being embraced in the crime with which the accused' is charged, and none of the documents referred to in the foregoing paragraph having been submitted, the judgment must be affirmed.</p>

<p>Appear from the District Court of Mayagiiez.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Aguadilla.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Mayagiiez.</p> <p>The facts are stated in the opinion.</p>

<p>Removal of Municipal Employes — Power of Appointing Officer. — In general terms, and in the absence of a statute prohibiting it, the officer authorized to appoint employes also has the inherent power to remove them.</p> <p>Id. — Construction of Section 32 of Municipal Law. — The proviso of section 32 of the Municipal Law of March 8, 1906; as amended March 10, 1910, does not state a general rule but an exception thereto — that is, that except in the cases mentioned expressly in said proviso, in order to remove a municipal employe it is unnecessary to prefer charges, serve notice thereof, and hear him in his defense.</p> <p>Id. — Just Cause — Notice and Hearing. — Although in some cases the rule is that when the law requires that just cause for the removal of an employe should exist, it is necessary to serve notice on and hear him. This is not a general rule. And in the case at bar, it is unnecessary to deeide this question since the petitioner received notice of the charges and was heard in his defense.</p> <p>Id. — Public Offices — Property Right. — The right of a public official to hold office is not a property right, but, bn the contrary, it is subordinate to the good of the public service.</p> <p>Id. — Discretion of Mayor — Lack of Just Cause. — Even in eases where the sufficiency of the cause for the removal of an employe is doubtful, the courts will not interfere with the exercise of the discretional power of the mayor to remove employes unless it is shown that the removal has been unjust as, for example, for political or religious reasons.</p> <p>Id. — Notice and Hearing of Party Removed — Evidence.—In the case at bar the court, after weighing the evidence introduced at the trial, held that petitioner received ample notice of the charges preferred against him, and was heard in his defense.</p> <p>Id. — Admission of Evidence — Letter of Employe. — A. letter addressed by the petitioner to the city attorney is admissible as evidence in a case of this nature, to prove that notice had been served on said employe, and that he had knowledge of the charges preferred against him.</p>

<p>Amendment to Complaint — Express and Implied Permission. — The fact that an express permission has been granted to amend a complaint as to certain matters carries with it the power to' make any other amendment which, though ■not clearly authorized, is necessary in order that the amendment so allowed may not become useless and null.</p> <p>Id. — Discretion of Court — Liberality in Allowing Amendments. — Although it is discretional with the court taking cognizance of tie ease to grant or refuse leave to amend the jdeadings, liberality in permitting the same is recommended by .jurisprudence and good sense, and said leave shall only be refused when the allegation is so defective that it shows on its face that it cannot be amended.</p> <p>Id.' — Omission of Essential Fact Which May Be Alleged. — When, as in the present case,.the.allegation is defective only in failing to allege an essential fact that may be alleged, leave must be granted to that effect.</p>

<p>Appeal, from the District Court of San Juan.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Ponce.</p> <p>The facts are stated in the opinion.</p>

<p>Costs — Attorney's Pees — Discretion oe Trial Court. — When a plaintiff brings an action and obtains a judgment by default against the defendant, and such judgment is set aside on motion accompanied by affidavit filed by the latter, and the plaintiff dismisses his suit after the complaint is answered, the court, in the exercise of sound judicial discretion, and in taxing the costs allowed by the judgment of dismissal, may allow attorney's fees, and this appellate court decided that the amount taxed of $75 was not excessive.</p>

<p>Appeal from the District Court of Mayagüez-.</p> <p>The facts are stated in the opinion.</p>

<p>Estimate op Evidence — Statement op Case — Transcript op Eecord. — In order that the Supreme Court may decide whether or not the trial court committed error in estimating the evidence taken, it is necessary that said evidence be fully set forth in a statement of the case or in a statement of facts prepared in conformity with the law, and later transcribed and forwarded in due manner to the Supreme Court.</p> <p>Memorandum op Costs — Service op Notice. — The party against whom costs were taxed having appeared in due time to object to the memorandum filed, and the district court having considered such objection before rendering a final decision, the plea in the Supreme Court, that notice- of the memorandum was not served on said party, lacks all merit.</p> <p>Id. — Piling Thereof — Computation op Period. — The period provided by law for filing the memorandum of costs should be computed in accordance with the general established rule, excluding the first and including the last day, except where the latter is a holiday, in which event it should also be excluded.</p> <p>Id. — Order op Approval — Reversal.—In order for the Supreme Court to reverse an order made by a district court approving a memorandum of costs, it should be clearly shown that said court had violated some law or committed a manifest injustice.</p>

<p>Nullity oe Contract — Insanity.—In order that a contract may be declared null on the ground of the insanity of one of the contracting parties, it is necessary to prove fully that on the day of the contract said party was actually insane, and therefore was unable to realize fully the act that he was performing.</p> <p>Id. — Property oe Conjugal Partnership — Express Consent oe Wiee. — In order that real estate belonging to the conjugal partnership may be sold, the express consent of the wife is necessary; and where such consent is lacking, the contract is void.</p> <p>Ratification oe Contract — Express Consent oe Wiee. — A husband executed a contract of sale of a rural property belonging to the conjugal partnership, and in the deed set forth that he executed it with the consent of his wife, who was prevented by illness from intervening in the execution thereof. Some days later the said wife appeared before the attesting notary and two witnesses, and stated that the contract was executed with her knowl- . edge and consent and that she had no objection to enter' thereto, which statement was entered in writing. •Seld: That the contract was legally ratified and' that from that moment the action for nullity beeame extinguished, in accordance with the provisions of section 1276 of the Civil Code in force. ■</p> <p>District Courts — Original Jurisdiction — Amount in Controversy. — When it is alleged in the complaint that the value of the property in controversy exceeds $500 and the evidence tends to establish such fact, the original jurisdiction of the district court taking cognizance of the case is very evident, even though it appears that some years previously the property had been sold for the sum of $375.</p>

<p>Appeal — Statement or Case — Estimate or Trial Court. — When the transcript of the reeord, filed for the purpose of an appeal, lacks a statement of the facts, the Supreme Court will not disturb the estimate of the evidence made by the trial court.</p> <p>Id. — Opinion or Trial Court. — The omission of a statement of faets cannot be supplied by the faets set forth in the opinion of the trial court, inasmuch as it does not appear that such facts are all those which were brought out at the trial, or that they were accepted by both parties in due time with the approval of the court and in due legal form.</p> <p>Id. — Approval of Statement of Pacts bv Supreme Court. — The Supreme Court cannot approve a statement of facts filed by appellant, when the transcript of the record, filed for the purpose of the appeal, does not include a statement of facts approved by the court below with the intervention of the parties.</p>

<p>Appear from the District Court of Mayagiiez.</p> <p>The facts are stated iu the opinion.</p>

<p>Appeal from the District Court of Humacao.</p> <p>Motion for allowance of costs.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Ponce.</p> <p>The facts are stated in the opinion.</p>

<p>Contempt- — Habeas Corpus — Review op Acts of Constituting Contempt. — Acts constituting contempt, which have served as grounds for a judgment of conviction rendered against a party who has committed contempt, cannot he reviewed in habeas corpus proceedings, but, on the contrary, if the- trial court had jurisdiction of the subject matter and the person, its estimate of the facts is conclusive.</p> <p>Id. — Writ of Commitment — Requisites Thereof in Cases of Contempt — Marshal of Court — Jailer—Eoraker Act. — Upon examination of the writ of commitment issued against the petitioner in view of a judgment of conviction foi contempt, and considering the requirements of section 3 of the Law of Contempt, approved March 1, 1902, as amended by the Act of March 8, 1906, and section 327 of the Code of Criminal Procedure, the-court held that said writ substantially meets all the requirements of law, but that the same should not run in the name of the “United States of America, the President of the United States,” because a writ of commitment does not constitute the judicial process referred to in section 16 of the Poraker Act.</p> <p>Id. — Warrant of Arrest — Means of Bringing into Court Persons Committing Contempt. — In view of the wording of the Law of Contempt, approved March 8, 1906, the absolute necessity of issuing a warrant of arrest against a person who commits contempt in the presence of the court is questionable, although we are of the opinion that it is better practice so to do.</p> <p>Id. — Arrest of Accused — Certified Copy of Judgment of Conviction. — Under the provisions of section 327 of the Code of Criminal Procedure, a certified copy of the judgment of conviction is sufficient warrant for the commitment of the accused, and said provisions should be complied with in all cases.</p> <p>Id. — Habeas ..Corpus — Errors of Eorm in Writ of Commitment. — In accord-anee with section 484 of tlie Code of Criminal. Procedure, the errors of form which a writ of commitment may contain cannot in habeas corpus proceedings serve as grounds for decreeing the liberation of the petitioner.</p> <p>Id.-JURISDICTION OF MUNICIPAL COURTS TO PUNISH FOR CONTEMPT COMMITTED in Presence Thereof — Courts of Record — Peace Courts. — According to the statutes in force in Porto Eieo, municipal and peace courts are not courts of record.</p> <p>Id. — Municipal Courts — Peace Courts — Jurisdiction to Punish for Contempt. — Bearing in mind that according to sections 4 and 14 of the law reorganizing the judiciary, approved March 10, 3904, municipal judges exercise all the functions of the justices of the peace whom they substituted, and that in accordance with an act approved May 28, 1904, the criminal procedure in municipal courts is the same as that which governs in peace courts, it is unquestionable that in accordance with sections 56 and 61 of the Code of Criminal Procedure municipal courts have power to maintain the order and the dignity thereof by punishing contempts committed in the presence of the eourt by imposing the penalties provided in aforesaid section 61.</p> <p>Id. — Powers of Municipal Courts to Punish for Contempt. — Even supposing that sections 56 and 61 did not, for the reasons stated in the preceding paragraph, confer power on municipal courts to punish for contempt, the provisions of section 29 of the Code of Civil Procedure would confer such power in the cases enumerated in said section.</p> <p>Id. — Municipal Courts — Excessive Punishment. — After considering the punishment of five days' imprisonment imposed on the petitioner, the eourt held that such punishment was not excessive and that the municipal eourt did not exceed its jurisdiction in imposing the same, inasmuch as according to said section 61 the court is not bound to impose the alternative punishments of fine or imprisonment, but can impose either or both.</p>

<p>Action oe Ejectment — Plaintiee’s Title — Liquidation oe Inheritance.— While the liquidation, of the inheritance, and consequently the corresponding partition and adjudication to each heir of his corresponding interest, has not been made, the heirs have no real-title to recover certain and specific properties of the inheritance.</p> <p>In. — vtrit op Execution Issued Against Deceased Person — Nullity op Writ op Execution — Voidable—The Law in Porto Eico. — Under the common law and the general jurisprudence of the United States a writ of execution against a dead man is a nullity. ■ In a few instances sueh order has been held voidable only. Where the rule of the common law in this matter has been modified by statute, the same must be followed strictly. In Porto Eico, according to section 244 of the Gode of Civil Procedure, a writ of execution may be issued even after the death of the judgment debtor, where . the judgment is to recover real or personal property.</p> <p>Inscription in Eegistry op Property — Void Acts — Third Parties. — The record of instruments or contracts whieh are null in accordance with the law does not validate the same; but instruments or contracts executed or covenanted by a person who according to the registry has a right to do so shall not be invalidated with regard to a third person after they have once been recorded, although later the right of the person executing them is annulled or rescinded by virtue of a prior deed not recorded, or for reasons whieh do not clearly appear from the registry.</p> <p>Id. — Title op I-Ieirs. — For the purposes of the registry, the title of the heirs originates from the entry made in the registry.</p>

<p>Appeal from the District Court of San Juan, Section 1.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Gruayama.</p> <p>The facts are stated in the opinion.</p>

<p>Acceptance of Inheritance — Classes oe Acceptance. — According to section 964 of the Civil Code, inheritances may be accepted purely and simply or under benefit of inventory; and according to section 965, pure and simple acceptances may be express or implied, express acceptances being those made in public or' private instruments, and implied acceptances being those made by acts which necessarily imply a wish to accept, or aets which no one should have a right to execute except in the capacity of an heir, aets of mere preservation or provisional administration not implying the acceptance of the inheritance if, at the same time, the title and character of heir have not been conferred thereby.</p> <p>Id.- — -Implied Pure and Simple Acceptance — Petition for Appointment of Judicial Administrator — Intervention in 'Administration.- — -The act of a son who in the testamentary proceedings of his father petitions for the appointment of a temporary judicial administrator to administer a house which constitutes the hereditary estate of the father, and that a meeting of the parties interested in the inheritance be called for the appointment of a permanent administrator, cannot be deemed as an implied acceptance of the inheritance from the mother of the petitioner, because said house was not the property,of his mother, but of the succession of his father; and the circumstance that an interest therein might correspond to his mother as legatee of her spouse could not deprive the children inheriting the latter of intervention in the administration of said house. Intervention in the aforesaid administration was compatible with the pure and simple nonacceptance of the inheritance from the mother.</p> <p>Id. — Implied Acceptance of Inheritance — Declaration of I-Ieirs. — The act of a son who in his own behalf and in behalf of his brothers and sisters applies for a declaration of intestate heirs of his deceased mother cannot be deemed as an implied acceptance on his own part and for his brothers and sisters of the inheritance from his mother, inasmuch as such act does not involve any act done in the capacity of heir and solely comprises the exercise of a personal right to obtain a declaration that he is such heir. Such act is the only adequate means of ascertaining for a certainty that he is actually such heir, for without such certainty he cannot accept the inheritance either purely or conditionally.</p> <p>Id. — Term for Accepting Inheritance under Benefit of Inventory. — According to section 980 of the Civil Code, an heir who may have in his possession the property of the estate or a part thereof, and who may wish to make use of the benefit of inventory, shall state this to the competent court within 10 days following that on which he has become aware that he is such heir, if he resides in the place where the deceased may have died, and if he resides outside thereof, the period shall be 30 days.</p> <p>Id.- — In accordance with section 981 of the Civil Code, if the heir should not have in his possession the inheritance or a part thereof, or has not taken any steps as such heir, the periods stated shall he counted from the day following that on which the period fixed by the district court for accepting or repudiating the inheritance expires, or from the day on which he may have accepted it or has acted as heir.</p> <p>Id. — Section 982 of the Civil Code provides that with the exception of the cases referred to in sections 980 and 981 of the Civil Code, if no action is brought against the estate, an heir may accept the inheritance under the benefit of inventory while .the action to claim the inheritance does not prescribe.</p> <p>Id. — -Acceptance oe Inheritance under Beneeit oe Inventory. — At the trial of the case at bar it was not proved that the property left by their father had been in the possession of the defendants, nor that they had done any act as sueh heirs, nor that they had been sued as such heirs; therefore it must be deemed that when on November 24, 1908, the defendants manifested their willingness to accept the inheritance under benefit of inventory, which was later done, they acted within the period fixed by law therefor.</p> <p>Id. — Acceptance oe Inheritance under Benefit oe Inventory — Responsibility oe Acceptors. — In accordance with section 989 of the Civil Code, the heir who accepts an inheritance under benefit of inventory shall not be bound to pay the debts and other liens on the inheritance except so far as the property of the same may go, which property shall not be confounded with his private property.</p>

<p>Appeal from the District Court of Mayagüez.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal Law — Statement of Case — Manifest Error. — In this case the transcript, of the reeord contained neither a statement of facts, nor a statement of the ease, nor a hill of exceptions, and it not appearing from the reeord that any fundamental error was committed, the judgment appealed from should he affirmed.</p>

<p>Damages — Negligence of Defendant. — In an action for damages based on the negligence of defendant, it is not sufficient to -prove that defendant was merely negligent, but it must also be established that his negligence was the real cause of the accident.</p> <p>Id. — Contributory Negligence. — When the defendant alleges that the accident was due to the plaintiff's own negligence, and the evidence shows that such negligence existed to such a degree that without it the accident could not have occurred, the plaintiff has no right to recover for the damages that he may have suffered. ■</p> <p>Id. — Evidence—Voluntary Statements. — The statements made to a policeman some hours after the accident, and at the place where it occurred, by the driver of the plaintiff’s wagon, with which the train of the defendant collided, are admissible in evidence in cases of this nature, if it is shown that they were made voluntarily.</p>

<p>Injunction — Prayer of Complaint — Perpetual and Preliminary Injunctions.- — -When it appears from the prayer and the allegations of the complaint that a preliminary injunction is specifically prayed for as well as a perpetual injunction, the court commits no error in ordering the defendant to appear and show cause why the injunction prayed for should not issue, and said court may decide, as was done in the ease at bar, to refuse the preliminary injunction without deciding the application for a perpetual injunction, although the latter may possibly have been prejudged in refusing the preliminary injunction.</p> <p>Id. — Appearance to Show Cause — Defect of Parties Plaintiff. — A court that at the hearing of the defendant to show cause why a preliminary injunction should not issue allows the argument of the demurrer of defendant to the complaint on the ground of defect of parties plaintiff commits no error, especially when it is considered that the plaintiff requested and obtained leave to amend the complaint, which he did, and therefore the order sustaining said demurrer is not reviewable.</p> <p>Id. — Appearance to Show Cause — Discretion of Court — Setting of Date.— The court in its discretion may set the date that it may deem convenient and even advance or postpone the hearing of the defendant to show cause why the preliminary injunction should not issue; and the court that, on the filing by the defendant of a motion for the dissolution of a restraining order, advances the date of the hearing to show cause and sets the hearing of the motion and the hearing of the defendant to show cause for the same date, commits no error.</p> <p>Id. — Motion to Dissolve Bestraining Order — Five Days’ Notice. — It is unnecessary to serve notice of a motion to dissolve a restraining order five days in advance, because injunction proceedings are special and summary and cannot be subjected strictly to all the transactions of ordinary procedure.</p> <p>Id. — Continuance of Hearing on Motion of Plaintiff — Discretion of Court— ■ Sufficient Time for Plaintiff to Prepare Case. — Inasmuch as the presumption is that when the plaintiff files his application for an injunction he is prepared to argue the same, and inasmuch as in the case at bar this is shown by the fact that certain evidence was introduced and that it was not shown that he failed to introduce other evidence for lack of time, a court commits no abuse of discretion in refusing, to continue'the,-.hearing of the defendant to show cause on the ground that the order setting the hearing was served personally on the plaintiff the night before and not on his attorneys, who were, therefore, unprepared to present the ease.</p> <p>Id. — Decision of Preliminary Injunction — Scope of Decision. — -To appreciate the scope of a judicial decision the dispositive part thereof must be considered. In the ease at bar, the application for a perpetual injunction not Raving been decided, the judgment appealed from simply dissolves the restraining order.</p> <p>Id. — Granting of Injunction — Discretion of Court — Great Caution in Granting Injunction. — The granting of a temporary injunction lies in the discretion of the court and should be exercised in favor of the party who may be prejudiced the most. Writs of injunction should only be granted with great caution and only in eases where the reason and the necessity therefor are clear.</p> <p>Id. — Construction of Railways — Possession of Land for Four Years— Title of Purchase Contained in 'Private Instrument. — In accordance with the foregoing doctrine, no abuse of discretional power is committed by a court which denies a preliminary injunction against a company which, according to the evidence taken, has been in possession of the land in question for over four years and has constructed part of its railway line thereon, said land being part of a larger parcel belonging to the succession of the predecessor in interest of the plaintiff, the possession thereof being based on a private document pleaded as title of purchase.</p>

<p>Partition of Inheritance — Report of Master (Contador-Partidor)' — 'Grounds of Objection Thereto. — In order that this court may examine the facts which serve as grounds for objecting to the report of a master which has been approved by the lower court, the record must show the antecedents or data which served the master as grounds in the preparation of his report.</p> <p>Id. — -Inventory Made by Master — -Increase of Capital. — An increase of $39,-945.69 in three years, as shown by the inventory made by the master in a capital of $45,381.15 is not an improbable or exaggerated increase, considering that it has been the result of agricultural transactions and transactions in cattle and sugar.’</p>

<p>Partition of Inheritance — Appointment of Defensor. — The appointment of a defensor is proper only .when the unemancipated minor has an interest in some matter really in conflict with that of the father or the mother.</p>

<p>Dismissal of Appeal — Time to Move for Dismissal. — In accordance -with rule 62 of the Rules of the Supreme Court, a motion for the dismissal of an appeal must be made before the hearing thereof. If this is not so done, dismissal being moved for at the hearing, the motion must be overruled.</p> <p>Profits of Mercantile Partnership — Net Profits. — The word "profit,-” when used in relation to a mercantile concern, is generally equivalent to the term "net profits.’’</p> <p>Judgment According to Law — Erroneous Reasonings. — -When a judgment is just and in accordance with law it should not be reversed because some of the reasonings stated in the opinion in support thereof are erroneous.</p> <p>Industriad Partner — Contract of Mercantile Partnership — Attorney in Pact of Commercial Firm. — Alter examining the evidence, and considering that the plaintiff was not a party to the partnership contract of the defendant firm, and that he did not ratify the execution thereof, the court held that he could not he considered as an industrial partner, hut as an employe of the defendant concern, and as such he was designated in the partnership contract.</p> <p>Conformity of Complaint with Evidence. — The conformity which should exist between the allegations of the complaint and the evidence must not he literal hut substantial, and the facts stated in the complaint may he supplemented with the evidence introduced.</p> <p>Increased Value of an Estate — Net Profits of Mercantile Partnership— Share of Employe in Such Profits. — Considering that in the several balances struck by the defendant partnership the increased value of their rural properties as the result of time and favorable economic conditions in the Island were included as net profits of the partnership, the trial court committed no error in deciding that, it having been stipulated that the plaintiff: was entitled to 10 per cent of the net profits, 10 per cent of the increase m the value of the estates should also be included and considered as part of the net profits.</p> <p>Liquidation of Net Profits of Mercantile Partnership — Ungathered Crops.— The provisions of article 225 of the Code of Commerce are not applicable to the employes of a firm, but refer to the partners only.</p> <p>Id. — Ungathered Crops — Date for Determining Net Profits of Mercantile Partnership. — Upon the withdrawal therefrom of an employe, who is attorney in fact of a firm and whose compensation was fixed at a monthly salary and 10 per cent of the net profits, he has the right to demand a valuation of the crops ungathered at the time he withdraws from such firm, and to demand that the 10 per cent of the net profits, including the value of said ungathered crops, be determined, not being bound to wait for the harvest thereof. No profit or loss sustained in said harvest after the date of the withdrawal of said employe-attorney can affect him.</p> <p>Payment of Employe’s Share in Net Profits of Partnership — Receipt of Amount Thereof in Cash, Merchandise, Accounts, ' and Other Property. — After examining the evidence introduced at the trial, the Supreme Court held that the plaintiff had a right to the payment in cash of his 10 per cent share in the net profits of the partnership, not being bound to receive the same proportionately in cash, merchandise, accounts, and othei property of the firm, because, besides the verbal contract between the plaintiff and the defendant firm, which is proved by the record, from the balances struck by the latter it is shown that the plaintiff’s account was credited with 10 per cent of the profits and that he disposed of over $5,000 on account of such 10 per cent.</p>

<p>Action of Ejectment — Uncertain Right of Plaintiffs. — Upon examination of the reeord the Supreme Court held that even in case the plaintiffs had shown that they had some' right of ownership to the lands claimed, such showing would have disclosed such vague and uncertain right that it could, not serve as a basis for the rendition of a judgment such as they.seek.</p> <p>Id. — Defendant’s Title — Good Faith and Just 'Title — Record in the Registry — Third Party. — The defendant having acquired ownership of the lands in question in good faith and with ■ just title from the person whose title was recorded in the registry without the ground of nullity now alleged appearing therein, it must be held that the defendant is a third party whose title should not and cannot be invalidated.</p> <p>Decided under the authority of the opinion delivered in ease No. 621, Fernández et al. v. Velázquez, decided June 9, 1911 (17 P. R., 716).</p>

<p>Partition of Inheritance — Report op Master (Contador-Partidor) — Ground for Objection Thereto. — In order that this court may investigate the facts which serve as grounds for objecting to the report of a master approved by the lower court in the partition of an inheritance, it is necessary to incorporate in the record the data or antecedents which served as a basis for the drawing of the report of the master.</p> <p>Objection to Master’s Report — Consideration op One Dollar Stated in Deed.' — The report of the master in the partition of an inheritance being objected to for having approved certain credits in favor of the judicial administrator, who is also an heir, because in the deeds relative to such credits the only consideration stated was that of one dollar. Held: That the- statement of such amount in the deed does not prevent, in the absence of fraud or prejudice, the proving in court of the real price or consideration of said contract.</p>

<p>Habeas Corpus — Appeal—Liberation Decreed by Supreme Court Justice.— An order for liberation issued by one of tlie justices of the Supreme Court on an application for a ■writ of habeas corpus presented to Mm is appealable by the fiscal to the Supreme Court m banc.</p> <p>Id. — Piling of Information Against Person Liberated While Appeal is Pending. — The fiscal having appealed to the Supreme Court in banc from the orctei of liberation issued by one of the associate justices thereof in habeas corpus proceedings instituted before said justice may, during the course of such appeal, file an information against the party liberated and order his arrest if he has grounds therefor.</p> <p>District Piscals — Their Powers and Duties — Grand Jury. — The powers and duties of district fiscals in Porto Bico are defined in sections 95 to 109 of the Code of Criminal Procedure, and it is deduced from such’ provisions that it cannot be considered that fiscals represent or substitute or that they are governed by the same rules as the grand jury.</p> <p>Id. — Committing Magistrate — Powers oe Piscals — Arrest oe. Supposed Delinquents. — Upon examination of the provisions of the Code of' Criminal Procedure in regard to fiscals we find none authorizing them, upon evidence privately obtained, to order arbitrarily the arrest of a supposed delinquent and imprison him for 20 days while they seek other evidence and endeavor to connect separate links in a chain of circumstances which may develop a conspiracy to commit crime.</p> <p>Id. — Arrest oe Petitioner During Course oe Habeas Corpus Proceedings.— Any power that the fiscal may have to arrest a supposed delinquent during the course of an investigation of the commission of a public crime cannot impede the effect of habeas corpus proceedings, and the judge hearing the case has the right, and it is his duty, to investigate the same thoroughly in accordance with the provisions of sections 469 to 500 of the Code of Criminal Procedure.</p> <p>Id.- — Production oe Evidence Taken During Investigation oe Crime — Probable Cause eor Arrest oe Supposed Delinquent.- — Although it is not the duty of the fiscal to disclose in habeas corpus proceedings instituted by the party all the evidence taken in the course of an investigation of a crime, if he deemed that the ends of justice would be prejudiced thereby; it is his duty, however, to submit to the judge hearing the case sufficient evidence to show probable cause -for the arrest of the petitioner or bail or ' liberation of the prisoner must follow; for although habeas corpus proceedings cannot obstruct the course of justice, it can and must prevent the illegal restraint of a citizen.</p>

<p>Appeal from the District Court of Humacao.</p> <p>The facts are stated in the opinion.</p>

<p>' Attorneys — Contempt—Criticism oe Testimony oe Witness. — The statements made in open court by the attorney for one of the parties to the effect that he does not believe the statements of certain witnesses, even under oath, do not constitute contempt of the court wherein such statements are criticised in said form, because, in accordance with jurisprudence, the attorney may attack the credibility of the witnesses, and can even state that perjury has been committed and that a witness has been bribed, when such conclusions may be a logical consequence of the testimony given in court.</p> <p>Contempt — Disobedience oe Void Orders — Jurisdiction.—Disobedience of an order of a court issued without jurisdiction therefor does not constitute;, contempt.</p> <p>Suspension oe Attorney — Jurisdiction oe District Courts to Decree Same— Penalty eor Contempt. — In accordance with the laws in force in Porto Bieo, district courts have no power to punish an attorney for contempt by suspending Mm temporarily from the practice of Ms profession — that is, by striking Ms name from among the attorneys of record for a party — which elimination constitutes in reality a temporary suspension.</p> <p>Contempt — Inherent Powers oe Courts. — The inherent powers of courts to punish contempt should be exercised within the limits prescribed by the statutes.</p> <p>Id. — General Powers oe Court to Punish Thereeor. — The powers conferred upon courts by paragraph 5 of section 7 of the Code of Civil Procedure, to govern the conduct of the officers thereof and of other persons appearing therein, are of a general character and should be exercised in accordance with the laws in force on the subject of contempt.</p> <p>Interpretation oe Law — Provisions oe General and Specieic Character.— It is a general principle of interpretation that two legislative provisions, one of a general and the other of a specific character, may subsist at the same, time, although they may appear to be contradictory and although they may be parts of the same or of different laws notwithstanding the date of their approval, it being understood that provisions of a specific eharae- ’ ter qualify and constitute exceptions to the provisions of a general character.</p>

<p>In this case Mr. Chief Justice Hernández and Mr. Justice MaeLeary were of the opinion that the appeal should be dismissed, and Justices Wolf and del Toro were of the opinion that the case should be considered on its merits, and that the judgment appealed from should be affirmed.</p> <p>Appeal — Judgment Appealed from Affirmed in Case of Division of Opinion— Decision of Supreme Court. — Where the Justices of the Supreme Court, by the absence of one of the Justices, are equally divided in opinion on the decision of an appeal, the judgment appealed from is affirmed.</p> <p>OPINION OF MR. CHIEF JUSTICE HERNÁNDEZ, MR. JUSTICE MACLEARY CONCURRING.</p> <p>Dismissal of Appeal — Unappealable Decisions. — Decisions of district courts deciding demurrers are unappealable, because they are not included in the cases expressly enumerated in section 295 of the Code of Civil Procedure, and all appeals taken from such decisions should be dismissed.</p> <p>Id. — Interpretation of Pleadings — Notice of Appeal. — When the words are clear and leave no doubt as to the intention of the writer the literal sense thereof should control.</p> <p>Id. — Notice of Appeal — Decision of Demurrer. — The appellant having stated in his appeal that the same was taken from the decision of the court sustaining the defendant’s demurrer, it is evident that his intention was to appeal from the decision that sustained the demurrer and not from the judgment dismissing the complaint on the strength, or as a consequence, of the sustaining of the demurrer.</p> <p>Id. — Decision of Grounds of Demurrer — Judgment.—In accordance with the definition of judgment contained in section 188 of the Code of Civil Procedure, the decision or order sustaining a demurrer cannot be considered as a judgment.</p> <p>Appeal — Grounds of Judgment. — An appeal lies from that part of a judgment which decrees and not from the grounds on which it is based, although such grounds may be an order sustaining a demurrer.</p> <p>Id. — Jurisdiction of Supreme Court — Agreement of Parties — Appeal.—Even assuming that the appellant and the respondent have agreed that appeal has been taken from- final judgment and not from the decision sustaining the demurrer, if from the notice of appeal it appears clearly that the same has been taken from the latter, the Supreme .Court has no jurisdiction to hear the appeal as jurisdiction is not conferred upon it by agreement of the parties, but by the actual taking of the appeal.</p> <p>Rules of Procedure — Private Agreements of Parties. — The rules of procedure are binding upon all the parties to an action and may not be substituted by private agreements or stipulation of the parties. •</p> <p>OPINION OP MR. JUSTICE DEL TORO, MR. JUSTICE WOLE CONCURRING.</p> <p>Action of Ejectment — Nullity of Defendants’ Title — Cases Wherein it is Necessary First to Bring Action for Annulment. — The legal doctrine that it is necessary to apply first' for the' annulment of the title when an action of ejectment is instituted against persons who are in possession of the thing in litigation by virtue of a title which was had as legal, is applicable only when the nullity thereof causes the action, but not when the right to recover is independent thereof.</p> <p>Id. — Action for Annulment — Plaintiffs’ Title. — The person who takes for grounds of his action of ejectment a title independent of that of the possessors is not bound to apply for and obtain the annulment of the latter in order that his action may prevail.</p> <p>Id. — Property of Conjugal Partnership — Litigation of Conjugal Partnership. — The acquisition of property during the existence of the conjugal partnership is not sufficient title as grounds for an action of ejeetment, "because without the previous liquidation of the eommon. assets the existence of a surplus, of which one-half corresponds to each partner, cannot he affirmed.</p> <p>Appeal — Generic Term "Decision.”' — Considering the circumstances of this, case and that the generic term "decision” includes "judgment,” this court should not divest itself of its jurisdiction because the appeal states that the same is taken from the decision, when, properly, it should have said "from the judgment,” but, on the contrary, it should hear the appeal and decide it on the merits thereof.</p>

<p>Appeal from the District Court of San Juan:</p> <p>The facts are stated in the opinion.</p>

<p>Mandamus — Intervention of Parties Interested. — In accordance with American jurisprudence, the parties who may be affected by the decision of a court or who show that they are interested in a case are, as a general rule, allowed to intervene in the extraordinary remedy of mandamus. This doctrine has been accepted by this court in analogous eases, such as those of certiorari.</p> <p>Id. — Declaration of I-Ieirs — Natural Children — Appealable Decisions. — The petitioners were declared the heirs of their presumed father in proceedings for declaration of heirs brought in the lower court, said declaration being founded on a judgment rendered in their favor by the same lower court ' in an action for filiation. Both decisions were reversed by this court and they again appeared in the lower court in proceedings for declaration of heirs and filed two motions which, on motion of the adverse parties, were stricken from the record. They have now -applied to this court for a writ of mandamus to compel the lower court to grant them a hearing before the motion to strike out is decided. This court held that the decision of the lower court to strike said motions from the record had the effect of eliminating them as parties to the proceedings and had the character of a special order rendered after final judgment. It was, therefore, an ap-pealable order allowing the petitioners the adequate and efficient remedy of an appeal without the necessity of applying for the extraordinary remedy of mandamus.</p>

<p>Injunction — Restraining Order and Order to Show Cause. — In this ease the lower court issued an order for the defendant to appear on a certain day and show cause why the injunction applied for should not issue and in the meantime restrained the defendant. The Supreme Court decided that as said order to appear and show cause and restraining the defendant does not decide or decree the issuance of the writ of injunction, and that as the hearing of the parties was set for a date three days prior to the auction sale which it was desired to suspend, and it does not appear that the petitioner was. prejudiced thereby, the issuance of the writ of certiorari is therefore improper.</p>

<p>Griminal Law — Aggravated Assault and Battery- — Prescription..—Upon examination of the records it is found that the crime charged in the information was committed on September 27, 1908, and the information was not fled until July 6, 1910; therefore, in accordance with section 79 of the Penal Code, the action prescribed because, as provided thereby, the prosecution for any misdemeanor must "be commenced within one year after its commission.</p>

<p>Appeal from the District Court of Ponce.</p> <p>The facts are stated in the opinion.</p>

<p>New 'Trial — Affidavit—Venue.—The omission of venue in an affidavit is not absolutely a fatal defect, and in the case at bar the affidavit filed, in applying for a new trial, was declared sufficient by the Supreme Court for the purpose of identifying it with the suit wherein it was filed.</p> <p>Id. — Affidavit—Oath of One’s Own Knowledge and Upon Information.— An affidavit wherein the affiant only states that what he swears to is “the truth, the whole truth, and nothing but the truth,” is equivalent to a statement that he swears to the facts of his own knowledge, and therefore such affidavit is not defective for said reason.</p> <p>Id. — Accident or Surprise. — The party who applies for a new trial on the ground of aceident or surprise in the introduction of evidence must be absolutely free from negligence or carelessness, because if he has had occasion tc examine the document that is the cause of the surprise he cannot afterwards allego this as ground for applying for a new trial.</p> <p>Id. — Accident or Surprise. — When a party by his own error induces another-to believe that a certain document introduced as evidence is a certificate of baptism and afterwards it is found to be a certificate of birth, the former cannot charge the latter with negligence or carelessness in ascertaining the nature of the document introduced by objecting to the granting of a new trial on the ground of accident or'surprise in the introduction of evidence.</p> <p>Id.- — Accident or Surprise — Requisites Applicant must Prove. — In order that a new trial may be granted on the ground of aceident or surprise, the applicant must prove the surprise, the manner in which he was prejudiced; that sueh surprise was not the consequence of any negligence or carelessness-on his part; that the judgment rendered is a primary consequence of the acts constituting the surprise; that he has a good defense; and that if a new trial is granted the result thereof will be different.</p> <p>Id. — Discretion of Trial Court — Abuse of Discretion. — The granting of a new trial on the ground of aceident or surprise lies in the sound discretion of the trial court, and its conclusions will not be disturbed on appeal unless a great abuse of discretion is shown.</p> <p>Id. — Inherent Powers of Courts. — In accordance with common law, courts have the inherent power to grant new trials on their own motion, and this power may be exercised when not prohibited by law; in Porto Rico no law exists which contains such prohibition.</p>

<p>ApplicatioN for a writ of certiorari.</p> <p>The facts are stated in the opinion.</p>

<p>Damages — Amount of Damages — Employers’ Liability — Actual Needs of Claimants. — In accordance with the Employers’ Liability Act of March 1, 1901, damages should be assessed iu proportion to the actual needs claimants had to depend upon the wages of the injured or deceased person for support.</p> <p>I». — Amount oe Damages — Conclusion oe Trial Judge. — The trial judge is in a better position than the Supreme Court to determine the amount that should be allowed for damages in each instance, and unless it is shown that the amount assessed is clearly inadequate or improper, the Supreme Court will accept the conclusion of the judge as a just and equitable one.</p>

<p>Appeal from the District Court of San Juan.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Humacao.</p> <p>The facts are stated in the opinion.</p>

<p>Nullity oe Contract — Prejudice to Plaintiee. — In order that a plaintiff may be entitled to ask for the annulment of any contract, in which lie is not bound either as principal or accessory, it is necessary for the complaint to show that he has been prejudiced by said contract.</p> <p>Action oe Ejectment — Conjugal Property — Liquidation oe Conjugal Partnership. — The title of heir of one of the spouses in a conjugal partnership is not sufficient to recover ownership of one-half of the property which forms part of the estate of the conjugal partnership where a liquidation of the conjugal partnership has not been made, because until such liquidation has been made a surplus of one-half belonging to each of the spouses cannot be declared to exist.</p> <p>Conjugal Partnership — Title oe Spouses to Conjugal Properties — Coheirs.' — Upon the dissolution of a marriage, a liquidation of the conjugal' partnership should be made for the purpose of ascertaining whether or not any profits were obtained*by said partnership, and half of the profits, if any, belong to each spouse, not by right of inheritance, but in their own right; and, for this reason, once the marriage has been dissolved the spouses are not coheirs, neither are the successors of the deceased partner coheirs of the surviving spouse.</p>

<p>Entry op Default — Summons op Dependant — Dependants in Different Capacities. — The summons and a copy of the complaint having been personally served on a defendant, the requisites of law for a court to acquire jurisdiction of his person are complied with, and the fact that he is sued in different capacities does not require that a summons be served in each capacity. Iiis default having been entered, it is proper to dismiss his answer to the complaint filed after the entry of default.</p> <p>Partnership — Contribution of Products ”of Individual Properties. — The products of the individual properties of each partner having been contributed to a partnership, but not the usufructuary rights that may be had in the property of another, it is unnecessary to allege in the complaint that a public instrument establishing the partnership had been executed, for such requisite is only required by section 1569 of the Civil Code where real property or property rights are contributed by any of the partners.</p> <p>Id. — Formation of Partnership Under Public Instrument — Claims Among Partners. — Even in the presumption that a partnership must be formed by means of a public instrument, this requisite would be indispensable in order to sue a third party, but not to prosecute claims among the partners themselves, because so far- as the partners are concerned the contract has full legal effect even in the absence of such formality.</p> <p>Private Civil Partnership for Profit. — The allegations made in the complaint prove the constitution of a private civil partnership for profit as the object thereof is to share the profits that certain properties may yield, and no facts appear therein from which it may be inferred that the purpose of the partnership was to engage in commercial pursuits.</p> <p>Id. — Partners Under Age — Civil Partnership. — The provisions of article 4 of the Code of Commerce, requiring that persons engaged in commercial pursuits shall be 21 years of age, are not applicable to civil partnerships, since there is no provision in the Civil Code barring duly represented minors from forming part of civil partnerships.</p> <p>Id. — Establishment op Civil Partnerships — Representation op Partners Under Age. — It is not an indispensable requisite in establishing a civil partnership that1 those of its members who are under age be represented by a defensor, because only where the father's interests conflict with those of his son will it be necessary that the latter be represented by a defensor, and in the case at bar there are no conflicting interests.</p> <p>'Id. — Judicial Authorization. — Judicial authorization for a minor to form a civil partnership such as the one under consideration in this suit, is not necessary, because it is not sought to alienate or encumber real property.</p> <p>'Id. — Acknowledgment op Debt by Eather op Minor — Judicial Authorization — Liquidation op Partnership. — Where a father acts in his own right and in representation of his minor children as a member of a partnership his acknowledgment of a debt of the said partnership binds those whom he legally represents. To secure judicial authorization on the ground that the acknowledgment is the result of a liquidation of partnership made by himself in his own right and on behalf of his minor children is not an indispensable requisite for the acknowledgment of the debt. In aecord-.anee with section 1027 of the Civil Code, which according to section 1610 thereof is applicable to the liquidation of civil partnerships, judicial approval is unnecessary in such eases.</p> <p>Appellant’s Briep — Assignment op Errors — Citation op the Law Infringed. — The appellant in assigning in his brief the errors which he believes were committed by the eourt below should cite the law violated, otherwise, in accordance with rule 43 of the Pules of the Supreme Court, the alleged errors may be disregarded by this eourt.</p> <p>.Liquidation op Partnership — Liquidation Made by One Partner. — The liquidation made by one partner and accepted by the other is the liquidation of both.</p>

<p>Certiorari — Error .of Procedure. — It not appearing from the petition presented' that any error of procedure has been committed, no ground' exists for the- • exercise, of the extraordinary remedy of ■certiorari, in accordance with the* provisions of the law in force governing the matter..</p>

<p>Application for a writ of certiorari.</p> <p>The facts are stated in the decision of the conrt.</p>

<p>Dismissal of Appeal — Piling Transcript of Record Out of Time. — In the ease at bar appellee moved for the dismissal of the appeal on the ground that the transcript of the record was filed after the expiration of the 30 days allowed by law. Held: That the appellant having been served with notice of the motion to dismiss the appeal after the transcript was already on file in the office of the secretary the appeal will not be dismissed, in accordance with rule 58 of this court, which provides that if the tran- ■ é script of the record, though not filed within the time prescribed, be on file in the secretary’s office at the time such notice is given, that fact shall be sufficient answer to the motion.</p> <p>Id, — Delivery of Literal Copy of Transcript of Record to Appellee — Legal Normality not Affecting .Jurisdiction. — The appellee moved for the dismissal of this appeal on the ground that he had not been served with a literal copy of the transcript' of the record, and that the records do not contain a certificate of the'.service. Held: That under the last paragraph ■of section 299 of the Oode of. Civil Procedure, as amended by Act No. 70 of March 9, 1911, it appears that the certificate of the ’ service upon' the appellee of a literal copy of the transcript of the record is not an essential and integral part of the- transcript, but a mere legal formality which does, not affect the jurisdiction of this court and the omission of which may be remedied in time, as it was’ in the case at bar; and therefore the dismissal of the appeal on this ground is not proper.</p>

<p>Certiorari — Mere Informalities of Procedure. — The writ of certiorari will not issue where the object sought is to correct mere informalities of procedure whereby the rights of the parties are not prejudiced.</p> <p>Id. — Attachment of Rentals of House — Powers of Agent of Landlord.— The agent of a landlord who has power to collect the rentals of the house also has power to take all judicial or extrajudicial steps incident to such collection, and the fact that the motion made by said agent to dissolve the attachment levied upon the rentals, leaving the same in force as to the house itself, was not made separately, is not an error of procedure whereby the rights of the parties are prejudiced.</p>

<p>Servitude — Third Parties — Subsequent Record in Favor of Another Person. — The provisions of article 17 of the Mortgage Law, which prohibit the admission to reeord of titles transferring' ownership or establishing an encumbrance when a subsequent reeord exists in favor of another person, have no other purpose and effect than the protection of third parties, which is the objeet of the Mortgage Law, so that if the person in whose favor ,|!the reeord is made is not "a third party, this''legal provision cannot be : applieds". . • - : •„ "■ . ■</p> <p>Id. — .Constitution of Servitude by Principal — Partition and Adjudication of Servient Estate in Favor of Heirs. — In accordance with the doctrine contained in the foregoing paragraph, where a servitude has been constituted by the principal upon an entire property which upon the death of said principal passes to his heirs and one of them records the share adjudicated to him as his own individual property, as this heir is not a third party but a continuer of the personality of the principal, said record does not bar the owner of the dominant estate from obtaining the inscription of said servitude upon that part which the heir recorded in his own name.</p>

<p>PetitioN for a writ of mandamus.</p> <p>Mr. Herminio Dias Navarro for petitioner.</p>

<p>Appeal from the District Court of HumacaO.</p> <p>Motion to dismiss appeal.</p> <p>The facts are stated in the decision of the court.</p>

<p>Record of Title in Registry of Property — Private Document. — A sold a property to B and the sale was witnessed by a private document in which ■ it was stated further that no public deed was executed because the property was encumbered, that it was necessary first to release it from the encumbrance and that the wife of A was cognizant of the fact's and willing to execute such a deed in the event of his death. A died and Ms wife executed the deed and the registrar refused to record the same, basing his refusal on the provisions of subdivision 1 of article 3 of the Mortgage Law. Held: That the refusal of the registrar was not well founded in this instance, because the intention was mot to record the private instrument itself, but of doing so after it was clothed with all the formalities of a public document.</p> <p>.Sale of Property of Minors — Judicial Authorization. — In the foregoing ease, upon the death of A his minor children were declared to be his heirs and the deed was executed by the widow without 'obtaining judicial authorization therefor. The registrar refused to admit the instrument to record upon this ground also and the court held that the registrar was right as to tMs point, because the act performed involved the sale or the ratification of the sale-of real property by minors, and judicial authorization was abso- . lutely necessary in accordance with the law in force at the time the instrument was executed..</p>

<p>Appeal from the District Court of Ponce.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal — Delivery op Copy op Transcript to Respondent — Dismissal op Appeal, — The appellees in this ease filed a motion for the dismissal of the-appeal on the ground that the appellant had failed to serve them with a copy of the record. Held: That it is the duty of the appellant to serve the appellee with a literal copy of the transcript of the record and to cause a record of such service to be duly entered before filing the transcript of the record in the Supreme Court; but if notwithstanding this fact it is shown that the appellant had delivered the copy after said time, but before the hearing of appellee’s motion for the dismissal of the appeal, a dismissal founded on such ground cannot be granted.</p> <p>Id. — Bill op Exceptions and Statement op Case — Dissmissal op Appeal.. — ■ The appellees also moved for the dismissal of the appeal on the ground that the appellant failed to send up to the Supreme Court the bill of exceptions and statement of the case. Held: 'That the first paragraph of section 299 of the Code of Civil Procedure, as amended by Act No. 70, approved March 9, 1911, should be construed in connection with the other paragraphs of said section, because it would be absurd to establish the rule that a bill of exceptions and a statement of the ease must always be sent up, when experience proves that there are cases, like the present, where no such documents exist and are unnecessary for a due consideration and determination of the appeal.</p>

<p>Appeal from a decision of tlie Registrar of Property of Ponce.</p> <p>• The facts are stated in the opinion.</p>

<p>Criminal Law — Perjury—Bribe oe Appellant — Assignment op Errors. — No brief having been filed by the appellant and therefore the assignment of errors required by rule 42 of this court not being set forth, only the fundamental errors appearing in the record can be considered.</p> <p>Id. — Perjury—Evidence op Which op two Declarations is the True One.— When it is alleged in the information in an indirect manner that of the two contradictory declarations made by the defendant the one made in the municipal court was true and the one in the district court false, the error alleged by the appellant, that at the trial it was not proven which of the two was true, does not exist.</p> <p>Id. — Perjury—False ■ Testimony Given Knowingly and Maliciously. — When a defendant testifies twice in open contradiction and in his last testimony lie tries to exonerate a brother whom lie aeeused in the first, this is a sufficient ground for the jury to infer that the false testimony was given knowingly and maliciously.</p> <p>In. — Oaths Administebed by Deputy Seobetaby. — Deputy secretaries of district courts appointed by their superiors are authorized by law to administer oaths.</p>

<p>■Criminal Law — Aggravated Assault and Battery — Statement oe Case not Approved by Judge. — A statement of the case that lacks the approval of the trial judge has no legal effect whatever and cannot be considered by the Supreme Court.</p>

<p>Appeal from the District Court of Mayagüez..</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Petition for a writ of certiorari.</p> <p>The facts are stated in the opinion.</p>

<p>LONtempt — Disobedience op Illegal Order. — An illegal order of a court made without or iu excess of its jurisdiction does not have to be obeyed and disobedience thereof is not punishable for contempt, because in order to commit a contempt a wilful disobedience of a legal order issued within jurisdiction concerning the matter in litigation and the parties to the proceedings is necessary.</p> <p>Jurisdiction — Essential Requisites. — In order that jurisdiction may exist three essential requisites are necessary: Eirst, that the court be empowered to take cognizance of the class of eases to which the one to be adjudged belongs'; second, that the proper parties present themselves or be brought into court in the manner and form established by law; and, third, that the point decided upon must be, in substance and effect, within the issue.</p> <p>Patria Potestas — Limitation op Suspension op Patria Potestas — Jurisdiction op District Courts. — By operation of law district courts have jurisdiction to take cognizance of actions wherein the controversy is whether the patria potestas of a father should be limited or suspended.</p> <p>Id. — Possession of Children — Maintenance op Status Quo During Litigation. — A district court trying a suit brought by the father against the grandmother of his .children seeking to take from her the possession had by her of such children at the time the suit was begun has power to maintain during the suit the status quo existing at the time the suit was begun, and can therefore require the father to visit his children only during certain hours of the week and to return them to the possession of the grandmother upon the expiration of that time, and a wilful disobedience of that order by the father in refusing to return the children and keeping them in his; possession after having been required to deliver them to the marshal of the court, constitutes contempt of court.</p> <p>Habeas Corpus — Review op Decisions. — In habeas corpus proceedings the only question that may be considered is whether or not the court had jurisdiction to make the order which had been disobeyed, but the legality or illegality of the decision .can only be reviewed on appeal or by certiorari.</p> <p>Judicial Proceedings — Presumption op Regularity. — Unless the contrary is shown, in judicial proceedings the presumption is always in favor of their regularity.</p>

<p>Appeal from the District Court of Ponce.</p> <p>The facts are stated iu the opinion.</p>

<p>Appeal. — Notice of Judgment — Time in Which to Appeal. — While it is true that according to Act No. 70, approved March 9, 1911, amending, among others, section 299 of the Code of Civil Procedure, the time within which an appeal may be taken shall begin to run from the day on which the secretary flies with the records a copy of the notice of the judgment whieh he is required to give to the defeated party or his attorney. Such notice is not necessary where the defeated party has filed a notice of appeal.</p> <p>Id. — -Waiver of Notice. — The service of notice is not a jurisdictional requisite and has been established only for the benefit of the party prejudiced by the judgment, therefore from the moment the latter files a notice of appeal he is considered notified and to have waived the right to a service of such notice.</p> <p>Dismissal op Appeal — Double Appeal. — It is proper to dismiss the second . appeal taken from the same judgment which has already been appealed from because the seeond appeal is unnecessary.</p> <p>Id. — Additions to Record — Prooe oe a Second Appeal. — It is pertinent to add to the transcript of a second appeal proof to show that a former appeal from the same judgment had been taken, that another statement of facts relative to the first appeal was approved, and that both appeals are still pending.</p>

<p>'Cancellation oe Mortgage Instalments — Adjudication oe Mortgaged Property — Adequate Procedure. — The question of whether or not the several instalments of a mortgage should be considered as independent mortgages— that is, that the first instalment be considered as a first mortgage, the second as a second mortgage, and so on — is a legal question which has not been decided clearly by law, nor in a clear and decisive manner by jurisprudence and, involving as it does a question of preference of credits, it should not be decided in ex parte proceedings.</p> <p>Id. — Cancellation by Operation oe Law — Ex Parte Proceedings. — The provisions of article 125 of the Mortgage Law are not applicable to a case wherein the cancellation of the several instalments of a mortgage is sought to be obtained, and in such case the procedure provided by article 82 of the Mortgage Law should be followed.</p>

<p>Appeal from the District Court of Humacao.</p> <p>The faets are stated in the opinion.</p>

<p>Retroactive Effect of Law — Crediting Time Served While Awaiting Trial.— The Act of March 14, 1907, “To compute as part of the sentence of prisoners the period spent in custody awaiting trial,” is not applicable to eases already decided or to prisoners already deprived of liberty under a former judgment, for it is a principle sacred to American jurisprudence and enacted in section 3 of the Civil Code that laws have no retroactive effect unless they expressly so provide.</p> <p>Id. — Judicial Order of February 10, 1899 — Credit of Time Served While Awaiting Trial. — Rule Y of the Judicial Order of February 10, 1899, providing that- prisoners shall be credited with the entire time they may have served while awaiting trial, was repealed by the new Penal Code which went into effect on July 1, 1902, and the ends sought by the said judicial order have been attained by the provisions of the new Code of Criminal Procedure.</p>

<p>Criminal Law — Aggravated Assault and Battery — Contradictory Evidence.— In cases where the evidence presented is contradictory the judgment of the trial court will not be reversed on appeal unless it is shown that the court was influenced by passion, prejudice, or partiality, or that there was manifest error.</p>

<p>Criminal Law — Publication op Indecent Writings — Essential Elements op Oppense. — In an information based on a violation of section 283 of the Penal Code it is necessary to prove only that the defendant wilfully and lewdly published, sold, and distributed the obseene articles referred to in the information. The evidence in the case at bar having been examined, the Supreme Court decided that such requisites were proved beyond any reasonable doubt.</p> <p>Id. — Circumstantial Evidence — Reasonable Doubt. — A reasonable doubt is not a vague or capricious idea or conception, but that doubt which makes a man of ordinary common sense hesitate before deciding any question of importance which may present itself- to him and which affects him directly.</p> <p>Id. — Interpretation op Law — Act Committed Voluntarily and Lewdly.— It is clear that when our legislature used the word “lewdly” in section 283 of the Penal Code it did so in the same sense and with similar intention that the Congress of the United States had in using it. in the statute which prohibits the forwarding by mail of any. writing which tends to dis-emínate immorality in any form among the people, and said word should be interpreted in its current and ordinary meaning.</p> <p>Id. — Voluntary Committal op Act — Presumption.—In interpreting the irord '‘wilfully” it has been deeided repeatedly that when an unlawful aet has been committed and there is no evidence to prove that it was the result of accident or carelessness, the presumption is that the aet was committed wilfully.</p>

<p>Determination op Legality op Titles — Possessory Title Proceedings — Sufficiency op Evidence — Powers of Registrars to Weigh the' Same.— Subdivision 2 of article 18 of the Mortgage Law does not confer power iipon registrars to pass upon the grounds of judicial decisions, nor to determine the justice or injustice thereof, nor to judge of the sufficiency or insufficiency of the evidence introduced during trials.</p>

<p>Injunction — Discretional Power op Courts. — The granting or refusal of a writ of injunction lies in the sound discretion of the trial court and its decision will not he reversed by this court unless it is shown that said trial court abused such discretional power.</p> <p>Id. — Action op Ejectment — Possession op Property in Litigation. — When a plaintiff institutes an action of ejectment to acquire dominion and possession of property it is not proper to put him, in possession of the property which is the subject matter of said suit by means of a writ of injunction.</p>

<p>Cancellation of Lien — Property for Support of Clergymen — Ecclesiastical Property. — In the ease at bar an encumbrance was created upon a building for the support of a clergyman upon condition that the building should not be converted into an ecclesiastical property, and that on the clergyman’s death the lien should become null and void. The appellant asked for the cancellation of said lien and presented a certificate of the death of said clergyman. The decision of the registrar refusing to make the cancellation was appealed from, and this court held that it was erroneous on the ground that a certificate from the Catholic bishop of this diocese showing that the encumbered property had not been converted into an' ecclesiastical property was not necessary for the purpose of extinguishing said lien because the deed creating the lien expressly forbade sueh conversion.</p>

<p>Appeal from the District Court of Aguadilla.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal Law — Costs—Liability of Sureties — Traveling Expenses and Per Diem of Witnesses. — Section 271 of the Code of Criminal Procedure was not repealed by the Act of March 10, 1904,.and in accordance with the provisions of the former the fees and mileage of witnesses are taxable as costs, and the sureties for a defendant are responsible for the payment of the same.</p> <p>Id. — Attorneys as Sureties for Clients. — Eor attorneys to act as sureties for their clients is bad practice and is prohibited by rule 13 of the district courts, compliance with which should be strictly enforced.</p>

<p>Partition oe Inheritance — Legal Defensor oe Minors' — Compatibility of Interests. — The husband of one of the heirs of a testator who himself is neither heir, legatee, nor participant in the inheritance of his wife’s father and in which she intervenes in her own right without the necessity of her husband’s assistance may be appointed as the judicial defensor of the other minor heirs and brothers of his wife, ,and it cannot be said that there would exist an incompatibility of interests between said judicial defensor and those he represents.</p>

<p>Appeal from the District Court of Ponce.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of San Juan, Section 2.</p> <p>Tlie facts are stated in the opinion.</p>

<p>■Contempt — Letter Addressed to Supreme Court. — Any person w£o, not being ■ a party to a proceeding, addresses a communication to the Supreme Court endeavoring to influence it in the decision whieh is to be rendered in said proceeding is in contempt of court.</p> <p>Jd. — Power of Supreme Court. — In view of the circumstances attending the specific case to be decided in contempt proceedings, the Supreme Court may dismiss them and not impose punishment on the accused.</p>

<p>Appeal from the District Court of Arecibo.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal Law — Embezzlement—Insufficiency of Complaint. — A complaint stating that the defendant received a ring in pledge or as security for the payment of one dollar which he loaned to. the complainant, and that when she returned the dollar and demanded the return of the ring the defendant answered that he had lost it, is insufficient to support a conviction for embezzlement, because such complaint does not allege that the defendant fraudulently appropriated the ring or concealed it with the fraudulent intention of appropriating the same to his own use, and- these are necessary requisites to constitute the crime of embezzlement.</p>

<p>Sale by Auction oe Property Belonging to Minors — Deed oe Sale Executed by Marshal. — In cases of sale by public auction of tie property of minors by virtue of the judicial authorization for its alienation provided for in Act No. 33 of March 9, 1911, this aet contains no provision as to who should execute the deed of sale of the property sold, therefore the aet of March 9, 1905, is applicable; and in accordance with section 5 of said latter act it is the duty of the marshal to execute the deed of sale in due-form to the purchaser at the public auction.</p>

<p>Dismissal of Appeal — Omission of Findings of Fact from Transcript of Eecord — Judgment Boll. — The omission of a copy of the findings of fact from the transcript of the record does not constitute a defect which affects the jurisdiction of the court or which can serve as grounds for dismissing the appeal, the interested party having the right to obtain its inclusion by means of a motion in case such findings of fact have been made.</p>

<p>Appeal from the District Court of San Juan, Section 2.</p> <p>The facts are stated in the opinion.</p>

<p>Costs — Appealable Decisions — Order Refusing to Set Aside Appealable Order. — Considering that an order approving a memorandum of costs because the same was not objected to in tirrie is equivalent to a judgment by default as an exception to the general rule that an order overruling a motion to set aside another appealable order is appealable, the courts have laid down the doctrine that in such eases an appeal may be taken from an order overruling a motion to set aside an order approving a memorandum of costs because it was not objected to in time.</p> <p>Fundamental Errors — Approval of Memorandum of Costs — Omission of Objection — Discretion of Court. — Although a memorandum of costs may not have been objected to by the party adjudged to satisfy the same; the trial court should not approve it as a whole for that sole reason without first examining it; and in the exercise of its discretional power it should allow those amounts which may be deemed just and reasonable.</p>

<p>Certiorari — Approval of Statement of Case — Jurisdiction.—Upon examination of this case the court held that it had jurisdiction to take cognisance thereof and that the provisions of rulé 64 of the Supremo Court of Porto Rico were not' applicable thereto.</p> <p>Td. — Approval of Statement of Case — Discretion of Judge — Time for Presenting Amendments. — The time for presenting amendments to a statement of the ease having expired the. same cannot be extended, but the trial judge in the exercise of his discretional powers may hear the interested parties after the expiration of said time, for the purpose of ascertaining the truth of the facts stated in the statement of the case.</p>

<p>Property of Conjugal Partnership — Individual Property of One op Spouses. — The husband having acquired an estate by inheritance from his mother it should be considered as his individual property, and the fact that his wife paid notes made by him for debts contracted prior to his marriage out of her private funds does not destroy its character of individual property.</p> <p>'Interpretation op Oivil Code — Spanish Commentators. — In accordance with a well-established rule of legal interpretation, this court may refer to eminent Spanish commentators for the proper interpretation of such parts of the Civil Code of Porto Bico as have been copied literally from the Spanish Civil Code.</p> <p>Property op Conjugal Partnership — Houses Constructed on Lands op One Spouse With Money op Conjugal Partnership. — Buildings constructed during the marriage at the expense of the conjugal partnership and on lands belonging to one of the spouses are conjugal property.</p> <p>Jto. — An action to annul the sale by the husband of his individual property without the consent of fhe wife on the ground that certain houses were constructed on the property during the marriage and at the expense of the conjugal partnership is insufficient and does not state a cause of action if the same does not allege that said houses were included in the sale. c</p>

<p>Appear from the District Court of Aguadilla.</p> <p>The facts are stated in the opinion.</p>

<p>Unlawful Detainer — Jurisdiction on District Courts — Sale oi<’ Leased Property. — District courts have jurisdiction to take cognisance of an action of unlawful detainer instituted by the purchaser of an estate leased under a private contract; ibis not falling within the exceptions set out in section 1474 of the Civil Code, because the possession of the lessee, is equivalent to possession by sufferance and the question of the amount of the annual rental does not arise.</p> <p>Id. — Sale op Leased 'Property — Purchaser's Knowledge of Existence of Contract. — A lease1 which is made by means of a document wherein it is not stipulated that the possession of the lessee in ease of sale shall be respected has a personal character, and even in the presumption that the purchaser of the leased property had knowledge of the existence of such contract, the nature thereof is not altered and the lessee is bound to vacate the property if so required by the purchaser.</p>

<p>Appeal from a decision of the Registrar of Property, of Caguas.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of San Juan, Section 2.</p> <p>The facts are stated in the opinion.</p>

<p>Cession of Litigated Credit. — A credit is not litigated nor comprised within the provisions of section 1438 of the Civil Code because of the mere fact that a dispute or a difference of opinion exists, not in regard to the credit itself, but as to its classification or character; that is, whether it arises from rentals or from a mortgage debt.</p> <p>Demurrer — Complaint.—When a complaint is demurred to and the argument rests solely on the allegations, the former should bo considered alone and the ansuer discarded; and when after the trial the court renders judgment in favor of the plaintiff, the omissions in the complaint are understood to bo supplied by the answer.</p> <p>Sale of Beal Property — Payment of Price. — In order that the provisions of section 1407 of the Civil Code may be invoked it is necessary to have made the payment or at lea'st to allege that an offer of payment was made and refused.</p>

<p>Appeal from the District Court of Arecibo.</p> <p>The facts are stated in the opinion.</p>

<p>■Judgment — Interpretation.—The judgment of a court should be interpreted according to the meaning of the words employed therein, and when the same conforms with the opinion the latter may be consulted to determine the true significance of the former in case of doubt.</p> <p>Id. — Declaration op Heirs. — After an examination of that part of the judgment rendered by this court in the ease of Puente et al. v. Puente et al., de-eided June 38, 1930, which directed the district court to “proceed to the consideration and decision of said claims in conformity with the procedure established by the Act of Special Legal Proceedings, ’ ’ it was held that the intention of said judgment was that the trial court should, grant a new trial and rehear the parties, allowing them to introduce pertinent evidence so that said court might decide definitely upon the rights of the parties.</p> <p>Id.-INTERPKETATAION OE JUDGMENT-OBJECTION TO DECLARATION OP HEIRS.In the case at bar the Supreme Court held that the trial court committed error in overruling the objection of the appellants to the declaration of heirs applied for by the appellees, and that in accordance with the judgment rendered by this court on June 18, 1910, in a suit between the same parties the court should hear the objection and decide the same definitely.</p> <p>Ex Parte Proceedings. — The trial court committed error in considering these proceedings as ex parte in character. They being contentious, it should hear all the interested parties in order to deeide definitely all of the claims.</p>

<p>Action of Ejectment — Title of Heir — Adjudication and Partition of Inheritance. — The title of heir is in itself insufficient for the recovery by some of the heirs of a specific part of the inherited property, since the partition and adjudication of said property is what confers on an heir exclusive ownership of the property that may have been adjudicated to him, and under such conditions an action instituted before these requisites are complied with is premature.</p>

<p>Appeal — Notice op Judsment — Waiver op Notice. — Although the period allowed for entering an appeal begins to run from the time that notice of the judgment is served upon the party against whom said judgment is rendered, if he appeals before said notice is served it is presumed that he had knowledge of the judgment and service of the notiee to fix the period during -which appeal should be taken, is unnecessary.</p>

<p>Criminal Law — False Personation and Cheats — Larceny—Erroneous Classification of Crime by Prosecuting Attorney. — If the facts set forth in an information constitute the crime of larceny defined in section 476 of the Penal Code and said facts are erroneously considered by the prosecuting attorney as constituting the crime. of false personation and cheats, the information is not fatally defective inasmuch as it is not the prosecuting attorney but the facts themselves which determine the nature of the crime charged.</p> <p>Id. — Void Verdict — Conviction for Crime Other Than That Charged in Information. — When the facts alleged in the information constitute the crime of larceny and not that of false personation and cheats, as erroneously considered by the prosecuting attorney, if the jury confine itself to rendering its verdict of guilty of the crime charged such verdict would be a valid one, but inasmuch as it was set forth in the verdict that the defendant was guilty of the crime of false personation and cheats, which is not the crime charged in the information, the verdict is null and void.</p> <p>Id.- — Larceny—Definition of Larceny in Section of Penal Code Which is Included in Same Chapter Treating of False Personation and Cheats.— Although section 476 of the Penal Code defining and punishing the crime of larceny is included in the same chapter which treats of crimes of false personation and cheats, the crime of larceny will not therefore he considered as false personation and cheats, for the specific title of the section must prevail over the general title within which the former is included.</p>

<p>Criminal Law — Violation op Internal-Revenue Laws — Administrative Pine— " < Powers of Treasurer.- — In accordance with section 23 of the Act of March . 9, 1905, the- Treasurer has alternative power to impose an administrative fine 1" '■ or tó' filé a criihinal ' c'omplaint against persons who violate the internal-revenue laws. If he elects the former procedure he must notify the accused of. the ■ imposition • of' said fine, and .allow him a reasonable period, which in : , some eases may be, for hours only, in which to pay or not to pay such fine, - and oniy in case-that he does not-pay can the Treasurer file a criminal com1- ■ plaint against- the offiendeiv ' • ' „• !</p> <p>Id. — Insufficiency of, Sentence — Omission of Offense for Which Sen'tenced. — A sentence rendered in a crimianl case is sufficient if the offense for which the 'defendant has' really been convicted appears from an examina- , ■ tion of.said sentence or from any other part of the record, but in the case at bar the sentence is insufficient, because the. defendant is found guilty of an offense against the internal-revenue laws without its being specified. °</p> <p>Id. — Requisites- of Complaint — Insufficiency of Complaint. — A complaint charging a violation of the internal-revenue laws on the ground that rum, beer and wine were kept in an establishment and offered for sale to the public without proper license is insufficient unless it states that sales were really , made and the class of -license that the- defendant .should have, whether as a wholesale or a retail merchant.</p>

<p>Criminal Law — Violation of Internal-Bevenue Laws — Insufficiency of Complaint. — A complaint for the violation of the internal-revenue laws wherein it is not stated whether the defendant was a wholesale or a retail merchant, nor that he made sales without the proper license, is insufficient, for although a complaint need not contain all the requisites of an information it must be sufficiently explicit to inform the defendant of the offense with which he is charged.</p> <p>Id. — Insufficiency of Sentence — Statement of Offense. — A judgment of conviction for violation of the internal-revenue laws, which states neither the specific provision of said laws which has been violated nor the offense for which the defendant is convicted, is insufficient.</p> <p>Id. — Administrative Pine — Powers of Treasurer. — After having imposed an administrative fine upon a person who violates the internal-revenue .laws the Treasurer can file a criminal complaint against him only when it is shown that the party has been allowed a reasonable period within which to pay such fine and has failed to do so. ■</p>

<p>Appeal from the District Court of Ponce.</p> <p>The facts are stated in the opinion.</p>

<p>Application for a writ of certiorari.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Humacao.</p> <p>- The facts are stated in the opinion.</p>