Volume 2 — Puerto Rico Federal Reports

<p>1. Damages implied by law from wrongful acts need not be specially averred.</p> <p>2. Damages may be recovered in Federal courts for injury to the feelings, in addition to actual and compensatory damages.</p> <p>3. Affidavits in support of motion for a new trial, when not sufficient.</p>

<p>L Under the act of Congress of March 2, 1901, amending the organic act óf Porto Kieo, the United States district court for Porto Kico has juris- ■ diction of- all, cases in which either party is a citizen of another state.</p> <p>2. An action at law lies to recover damages for inducing another to convey property without consideration.</p>

<p>1. Where a plea to a bill in equity is set down for argument as to its sufficiency, all allegations of fact material to the issue made in the bill and not denied by the plea are to be taken as true for the purposes of such :. hearing.</p> <p>2: Under the laws in force in Porto Rico in the year 1878, when the ancestor under whom both parties claim died, recognized natural children had no right of inheritance by force of law; and a testator could devise all his property to a relative in a collateral line within the fourth degree.</p> <p>NoTB.r-^-As to inheritance by, through, or from illegitimate persons, see note to Croan v. Phelps, 23 L.R.A. 753.</p>

<p>1. In order to maintain a bill in equity to remove a cloud from title, complainant must allege title in himself and the existence of a cloud apparently valid.</p> <p>2. Where, pending a creditors’ bill describing specific real property, the defendant having the apparent title conveys to a third party, the rights of such grantee are subject to the result of said creditors.’ suit; and, if the complainant obtains a decree, the purchaser pendente lite cannot enjoin the execution thereof.</p> <p>3. Where one buys property while it is involved in litigation, he obtains the title subject to the same charges as affected it in the hands of his vendor. The purchaser’s position is no better and no worse.</p> <p>4. Local laws have no binding force upon United States courts in respect to their procedure when exercising equity or admiralty jurisdiction.</p>

<p>1. The court will not sustain the defense of laches to a hill of complaint by holders of a second mortgage, in failing to intervene in an action to foreclose the prior mortgage, or immediately thereafter, where the bill of complaint alleges, and by the demurrer it is admitted, that complainants only discovered after such foreclosure proceedings the secret written agreement between the mortgagor and the holder of the first mortgage, whereby a part of the mortgaged property should be acquired by the first mortgagee in the foreclosure proceedings, and held in trust for the mortgagor.</p> <p>2. Equity will not permit an injustice to he committed to an innocent third party, under the form of legal proceedings; and a bill of complaint which alleges that the owners of real estate and the holders of the first mortgage therein had entered into a secret agreement whereby the owners were to permit foreclosure proceedings to be carried through without objection, in consideration of which the mortgagee should secure the title to the property covered by the mortgage, and hold the title to a portion of the property in trust for the original owner, states a good cause of action on behalf of the owner of a second mortgage, the registry of whose mortgage has been canceled as the result of such foreclosure proceedings.</p>

<p>1. Upon a verified complaint supported by proper proof, a temporary restraining order will issue to prevent the officers and members of a labor union, and all persons acting under the authority or control of suclx union or its officers, from in any wise interfering with the peaceful operation of the business of an individual or corporation, by means of threats, violence, or intimidation of any kind; also from annoying or injuring any person, from entering into or continuing in the employment of such employer, and also to prevent the congregation of striking laborers upon or in the immediate vicinity of the employer’s premises, in a violent, threatening, or hostile manner.</p> <p>2. All persons in Porto Rico have a perfect right to affiliate wil.h, organize, or conduct labor unions, so long as the same are conducted in a peaceful or proper manner, and in accordance with the laws of the land. But a court of equity will interfere to prevent serious injury to private rights or property whenever the same shall be seriously threatened, whether it be in the name of a labor strike or in any other manner.</p> <p>3. A laborer must be always free to accept employment, to enter into employment, and to cease from such employment at any time, and under any circumstances which he may determine for himself, free from all molestation, intimidation, or threats of any kind; and an employer of labor has the same reciprocal right to the protection of the court to employ and discharge laborers, and to operate and manage his business and property, without interference or intimidation from any outside source.</p> <p>4. “Picketing,” which has been defined by the supreme court of the state of Washington as a malicious and aggressive interference of strikers with the business of employers, is declared to be illegal, and will be enjoined in a proper case.</p> <p>5. Labor organizers and leaders must exercise great caution that the occurrence of strikes should not be made the occasion or excuse for rioting, violence, threats, incendiary appeals for the arraying of labor against capital.</p> <p>“6. It is well settled by the decisions of the highest courts that in a proper case a court of equity will enjoin a threatened strike, and that such injunction will issue in any case where labor organizations shall deliberately, in advance, conspire and combine to attack property of employers, by combining and agreeing to call a general strike for the enforcement of unjust demands, under conditions which must necessarily result in great loss or injury to employers.</p> <p>7. In this case a decree pro confesso having been regularly entered and confirmed in open court, and no showing having been made of a meritorious defense, the restraining order is made permanent.</p> <p>Note. — As to injunction against strikes, see note to Longshore Printing «& Pub. Co. v. Howell, 28 L.R.A. 464.</p>

<p>I. A bill of review to set aside a final decree for error apparent on tlie face of the record is entitled to be filed as a matter of right, and must be so filed within the time allowed by law for the taking of an appeal from such final decree. Where a petition to file such a bill of review is filed, and the bill of review simply tendered to the court with such petition before the expiration of the period allowed for appeal, but such petition remains pending without action until after the expiration of such period, the petition must be denied.</p> <p>'2. Where defendant makes no answer to a bill in equity, and thus no issue is raised, the matter of the bill may be decreed according to its allegations, without the necessity of oral proof at a formal hearing.</p> <p>3. In order to authorize the filing of a bill of review, it must contain allegations showing either error of law apparent on the face of the record of the suit in which final decree was rendered, or newly discovered evidence shown not to have been obtainable by due diligence before the entry of the final decree. The allegation of matters clearly within the knowledge of the complaining party before such final entry is not sufficient.</p> <p>4. Where a discrepancy is alleged between the record as entered and signed by the court and dockets or other memoranda kept in the clerk’s office, and such discrepancy is made the basis of a bill of review, the record proper as signed by the judge is conclusive; and such a question cannot be raised by bill of review.</p> <p>Note. — As to when a hill of review will lie, see note to Shelton v. Van ICIeeclc, 27 L. ed. ü. S. 269.</p>

<p>1. See. 3095, XJ. S. Rev. Stat. (U. S. Comp. Stat. 1901, p. 2025) is penal, and must be strictly construed.</p> <p>2. The master of a vessel under 30 tons burden brought into his home port, from a foreign one, a small amount of wearing apparel for his family’s use, without declaring the same, was charged with smuggling, and, on trial, was acquitted. Under those circumstances, libel and forfeiture of the vessel for alleged violations of § 3095, U. S. Rev. Stat., does not lie.</p>

<p>The summary proceedings for the foreclosure of mortgages, provided by the mortgage law of Porto Rico, are not conclusive as to the rights of third persons with relation to the mortgaged property; and therefore an adjudication under said procedure cannot operate, either as an estoppel or by way of res judicata, to defeat an action brought by a holder of a second mortgage to secure a marshaling of assets.</p>

<p>1. Where, In an equity suit, the question of complainants’ want of capacity to sue is not raised by plea or demurrer, such objection is waived and cannot be raised by the answer.</p> <p>2. By the Codes of Porto Rico in force before the year 1902, the registry of special ventures, or partnerships by private agreement between merchants, is not a prerequisite to the validity of such agreements, but remains optional with the contracting parties.</p> <p>3. A partner charged with the liquidation of the affairs of an expired partnership has authority to sell any of the remaining assets of said partnership.</p> <p>4. An exception to a master’s report,- not insisted on at the argument, should be overruled.</p>

<p>Where a suit in. equity attacks the genuineness and validity of a will under which certain executors aré claiming to act, arid.''upon an application for the appointment of a receiver, it is shown that- such executors are allowed by the local law to qualify without the giving of any bond, and that two of such executors are insolvent, while the third has only property much less in value than the money and disposable property which has, or shortly 'will, come into the custody of the executors, a receiver should be’ appointed to take charge of the testate estate pending the judicial determination of the genuineness or validity of the alleged will.</p>

<p>1. An injunction does not lie to restrain libelous and slanderous acts and statements.</p> <p>2. In sucb cases there is an adequate remedy at law.</p> <p>Note. — As to injunction against libelous publication, see note to Cowan v. Fairbrotlier, 32 L.R.A'. 831.' ■....■.</p>

<p>Money improperly in the registry of the court by virtue of an interlocutory order in supplementary proceedings will be returned to the pai'ty who paid in the same.</p>

<p>1. The jurisdiction of the United States district court for Porto Rico (in-cases in which the jurisdiction is predicated on the diverse citizenship of the parties) does not include cases in which there are citizéns of Porto Rico on both sides of the controversy.</p> <p>2. The acts of April 12, 1900, and March 2, 1901, construed.</p>

<p>1. The court has jurisdiction of a case on the ground of diverse citizenship, in which Porto Ricans are parties defendant only.</p> <p>2. A demurrer to a bill charging fraud and conspiracy will not be sustained when it appears that the proceeding is directed at the parties, and not at judgments and decrees already entered by the insular courts.</p> <p>3. In cases of fraud, the provisions of local laws cannot be used to defeat or limit the equity powers of the Federal courts.</p> <p>4. The provisions of the Porto Rican laws prescribing the conditions under which corporations can sue and be sued in Porto Rico have no applications to associations other than corporations.</p> <p>5. This court, as a court of equity, if it possesses jurisdiction on other grounds, will, in eases within the principles of equity, grant relief, notwithstanding that by the peculiar construction of the local laws the same proceedings could not be maintained in the local courts.</p> <p>6. Defendants may have a rule for costs.</p>

<p>1. A verdict and judgment will be set aside and a new trial granted when the charge fails to define to the jury the issues in the case.</p> <p>2. It is error to charge the jury in an ejectment case, that the defendant can only recover by proof of his own title, or by proving title in a stranger.</p> <p>3. In such a case, plaintiff must recover on the strength of his own title.</p> <p>4-. A motion for a new trial, filed during the term at which the judgment was rendered, may, by order, be carried over to the succeeding term for argument and decision.</p> <p>Note. — As to what title or interest will support an action of ejectment, see note to Hancock v. McAvoy, 18 L.R.A. 781.</p>

<p>1. Wine imported from France in cases containing twenty-four bottles or jugs, each containing less than a quart, but more than a pint, are, ■under the United States tariff and provisions of the reciprocity treaty between the United States and France, subject to a duty of $1.25 per case and 5 cents additional for each pint or fraction thereof in said case, to be found by summing the excess in each bottle or jug; and the same rule applies to eases of a dozen bottles or jugs, each containing a little more or less than a quart of wine.</p> <p>2. A bottle or jug containing a fraction over a pint of wine cannot be classified as a quart bottle or jug, and taxed as such at the rate of $2.50 per case of twenty-four bottles or jugs.</p>

<p>Olives packed in brine in kegs containing less than 1 gallon each should, for customs tariff purposes, he classified under ¶ 264 of the tariff act of of 1897 (30 Stat. at L. 171, chap. 11, U. S. Comp. Stat. 1901, p. 1651), and duties assessed at 25 cents per gallon.</p>

<p>1. The district court of the United States for the district of Porto Rico has jurisdiction to naturalize aliens, by virtue of its general jurisdiction as a district court with circuit court powers conferred upon it by the Congress of the United States.</p> <p>2. A declaration of intention to become a citizen of the United States, sworn to before a judge of a municipal court of Porto Rico during the period of the military government of Porto Rico, constitutes a sufficient declaration of intention to become a citizen of the United States to give to this court jurisdiction, upon proper proofs being presented and after the lapse of time required by law, to issue final naturalization papers to such applicant.</p> <p>3.' The municipal courts of Porto Rico during the time of the military government of Porto Rico were courts of record within the provisions of § 2165 of the Revised Statutes of the United States, and as such had jurisdiction to accept the affidavit and oath of the intention of an , alien to become a citizen of the United States, and thus to initiate the proceeding by which such alien might eventually receive final naturalization papers from a court having the proper jurisdiction to issue the same.</p> <p>4. The declaration of an intention to become a citizen of the United States, which is provided for by § 2165 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 1329), is not considered by Congress or the courts of the United States of such a technical character as -to require the strict compliance-which is always required in the application for the final naturalization papers which may be issued in such cases; and a substantial compliance with the law as to such preliminary declaration, although subject to technical objection, is often considered a sufficient compliance, inasmuch as the competent court, upon the application for final admission papers, will carefully consider all questions of informality or technical error in passing upon such final application.</p> <p>6. Where a subject of the Republic of France residing in Porto Rico took an oath of allegiance and subscribed to a declaration of intention to become a citizen of the United States, in the form prescribed by the Revised Statutes of the United States, before the judge of a municipal court of Porto Rico under the military government of the United States in that island, on October 23, 1899, there is a sufficient compliance with the law to authorize this court, after the expiration of the time prescribed by the Revised Statutes, to entertain an application for the issuance of the final naturalization papers of such applicant.</p>

<p>By the organic act of Porto Rico (April 12, 1900) the local courts were given jurisdiction coterminous with the political boundaries of Porto Rico. The legislature of Porto Rico on February 16, 1903, passed an act giving the United States government exclusive jurisdiction over certain military reservations. Held, that the district court of the United States for Porto Rico has exclusive jurisdiction of offenses committed within said reservation limits.</p>

<p>1. An action not included within the terms of § 8 of the judiciary act of 1875 (U. S. Rev. Stat. § 738) cannot be maintained in the United States district court for Porto Rico against a nonresident of the district, on substitute service by attachment of property within the district.</p> <p>2. Section 915 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 684) did not enlarge the powers conferred upon Federal courts by § 739 of the same.</p>

<p>The court has not jurisdiction of a suit to foreclose a mortgage for $2,* 879.15, of which less than $1,000 was due when the suit was filed.</p>

<p>1. Defendant assigned to plaintiff’s predecessor in interest part of a mortgage; plaintiff sued, alleging that the transfer was intended as a guaranty, but failed to set out what had become of the mortgage, and introduced no proof but the recitals of the mortgage and assignment. Judgment for defendant.</p> <p>R. An assignor who does not make himself liable for the solvency of his debtor is not liable to the assignee, as an indorser or otherwise.</p>

<p>1. By effect of the 9th article of the treaty of peace between the United ■ States and Spain, and §§ 8 and 14 of the organic law of Porto Rico (31 Stat. at L. 77, chap. 191), all the general acts of Congress, whether applying to the “territories” or to the “territory” of the United States, are applicable in Porto Rico, when not locally inapplicable.</p> <p>2. There is nothing in the antitrust law (26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200, July 2, 1890), entitled “An Act to Protect Trade and Commerce against Unlawful Restraints and Monopolies,” which makes it locally inapplicable to Porto Rico, although it was enacted before the cession of Porto Rico to the United States.</p> <p>3. Porto Rico is substantially a territory of the United States.</p> <p>4. A complaint which alleges an unlawful combination between two common carriers, one alleged to be engaged in trade between Porto Rico and a state of the Union, is sufficient as against both defendants.</p> <p>5. Allegations to the effect that, by reason and effect of an unlawful combination in restraint of trade, plaintiff, a common carrier, lost the carriage of a large amount of trade, and that .the customers of plaintiff would thereby be compelled to pay an increase in the handling of freight, and, for that reason, would not ship with plaintiff, are not allegations of damages too remote to be considered under the antitrust law.</p> <p>6; Such a combination is not less unlawful because made by parties not actually in competition with each other.</p> <p>7. The contract evidencing the alleged unlawful combination need not be set- out in the complaint in Time verba.</p> <p>8. An alleged contract between a railroad in Porto Rico and a steamship-line between Porto Rico and New York, intended to give the latter a monopoly of the landing facilities at the port of San Juan, Porto Rico, would, if proved as alleged, be in violation of the antitrust law.</p> <p>9. An action brought under that law to recover damages sustained by reason of the unlawful combination is not an action based on the said contract.</p> <p>10. Under the antitrust act only the government can file a bill to enjoin acts under a contract in violation thereof.</p>

<p>1. The United States district court for Porto Rico has no jurisdiction to enjoin judgments of the local courts in cases where the latter have first, properly and legally, acquired jurisdiction of the subject matter and of the parties.</p> <p>2. The United States court will not entertain a bill of review as to matters litigated in the insular courts.</p> <p>3. A party who' chooses his forum must abide the result.</p> <p>4. United States Revised Statutes, § 720 (U. S. Comp. Stat. 1901, p. 581), construed.</p> <p>5. Luce v. Mullenhoíf, ante, p. 56, distinguished.</p> <p>6. Issues decided between the same parties in the insular courts are res judicata in so far as the United States district court for Porto Rico is concerned.</p>

<p>1. A court trying a case without the intervention of a jury need not find in accordance with the uncontradicted testimony of the witnesses ii that testimony is improbable, unreasonable, or by interested witnesses</p> <p>2. The employer must furnish appliances that are reasonably safe.</p> <p>3. An employee assumes the ordinary risks of his employment, but not against defects of which he knew nothing.</p> <p>4. One injured in trying to escape from a dangerous position can recover.</p> <p>5. This court will adapt itself “in eases other than of equity and admiralty, to the local procedure and practice in Porto Rico.”</p> <p>6. Civil Code, §§ 1803 and 1804, do not apply to a case of an employee injured by the carelessness of a fellow servant.</p> <p>7. The employers’ liability act of March 1, 1902 (Porto Rico), was an exclusive remedy in cases covered by it.</p> <p>8. Under the above act the employer was liable in damages for the pure negligence of a fellow servant of the injured one.</p> <p>Note.- — That a servant does not assume risks arising from defects unless he knew of their existence and appreciated the danger, see note to O’Maley v. South Boston Gaslight Co. 47 L.R.A. 164; duty of master as to machinery and appliances, see notes to Richmond & D. R. Co. v. Elliott, 37 L. ed. U. S. 728; Union P. R. Co. v. Snyder, 38 L. ed. U. S. 597; Union P. R. Co. v.. O’Brien, 40 L. ed. U. S. 767.</p>

<p>The filing of a suit in equity is notice, without other proceedings, to all persons dealing with the property involved. Ante, p. 9.</p>

<p>1. When the maker of a promissory note, who has been cited in supplementary proceedings against the original payee, pays the principal and interest into’ court, the court may direct said maker- to file a bill of interpleader to require payee (defendant in judgment), the plaintiff in judgment, and the indorsee to litigate their respective rights.</p> <p>2. In such a case substitute service on a nonresident defendant may be made by service upon his attorney at law in another case in the same ' court, brought to enforce the collection of the note.</p> <p>3. Pending the decision of the interpleader suit, a stay will be ordered of an action on the law side of the docket by the indorsee of the note against the maker, to recover the principal and interest thereof.</p> <p>4. When, in supplementary proceedings on a judgment at law, an order is made committing the defendant for contempt, consisting in failing to obey an order to pay the judgment, such an order trenches so closely on imprisonment for debt that it will be set aside, and the defendant, discharged on habeas corpus, the Porto Rican statute of civil arrest prohibiting the taking of the body of a defendant in execution.</p> <p>5. Mere suspicion that the defendant in judgment had money wherewith to satisfy the same is not sufficient, in the absence of positive proof to that effect, to authorize an imprisonment for contempt in refusing to-obey an order to pay the judgment.</p> <p>0. Pending the decision of the interpleader suit, the court will retain, of the money paid in by the maker of the note, a sufficient sum to answer to the judgment in the law case and interest thereon and costs.</p> <p>7. The surplus in the registiy will be paid to the indorsee of the note.</p>

<p>1. A lessee in the open and visible possession of real estate is a necessary party to an action for the forcible expropriation of any portion of the premises covered by such lease.</p> <p>2. In such case it is not necessary that the lease should have been registered in order to protect the rights of such a lessee.</p> <p>3. Before proceeding to take possession of the lands for the right of way for a railway through property which is held under lease, it is necessary that compensation should be made to the lessee on account of the damages which will result from the taking of such lands, or that a proper action for the expropriation of such lands should be brought in a court of competent jurisdiction, to which action the lessee should be made a party.</p> <p>4. In an action brought by a lessee of lands which are threatened to be taken by means of forcible expropriation proceedings, instituted against the owner of the lands and to which the lessee has not been made a party, it is proper for the court to issue a restraining order to prevent ' the taking of possession of such lands from such lessee until com-i pensation has been made for the damages to be caused to such lessee by reason of such taking, or until an action shall be instituted in the proper court by the party claiming such right of expropriation, and to which action such lessee shall be a party.</p>

<p>1. The fact that the mortgagee mistook his remedy to foreclose a mortgage, and attached and sold other property than that mortgaged, the same not having been alleged to have been done maliciously or without ' probable cause, does not give the mortgagor a right to an action at law for damages.</p> <p>2. Section 1803 of the Civil Code does not cover such a case.</p> <p>3. The mortgagor may offset, in the new suit pending on the equity side of the court to foreclose the mortgage, against his debt, damages sustained by reason of the loss of possession, products, and value of other property taken t>y the mortgagee in the course of the first proceeding, and still held by him.</p> <p>4. Equity, having obtained jurisdiction for one purpose, will retain it for all.</p>

<p>1. Plaintiff was born in Mexico, in 1870, of Spanish parents; lived in Spain in 1887 and 1888; married a Spaniard in 1890. The husband, on October 29th, 1899, made, in Porto Rico, the declaration of Spanish citizenship required by article 9 of the treaty, including his wife and children in it; he registered in the Spanish consulate in 1900; plaintiff, her husband being dead, registered in said consulate in 1900, 1901, 1902, 1903, and 1905. Held: That she is a Spanish citizen, and was not included within the scope of said article 9, she not being a native of Porto Rico, and plea to the jurisdiction overruled.</p> <p>2. Municipal courts in Porto Rico in 1899-1900 were courts of record.</p> <p>3. A declaration by the husband carried with it the reservation of citizenship for his wife and children.</p> <p>4. General orders of the military government, Nos. 132 and 164, construed.</p> <p>5. During the term at which the decree was entered, and before appeal perfected, the court has control of the decree.</p> <p>■6. The court has power to stay an execution for costs against parties who have not perfected an appeal until an appeal can be heard and decided.</p>

<p>1. Latimer, Hoard, Fernandez, and Borda being the joint owners each of one fourth of a sugar estate in Porto Rico, mortgaged it to Lanman & Kemp, and, being indebted to the Colonial Company, Ltd. (predecessor of the New Colonial Company, Ltd.), entered into an agreement to run for twenty years, in accordance with which a holding and operating company (the Canovanas Sugar Factory, Ltd.) was organized; said owners conveyed their property to said Canovanas Sugar Factory, Ltd., and received shares of stock, which they transferred to the Colonial Company, Ltd., to hold until the debt to it should be .paid; eight or nine shares were issued originally to the Colonial Company, Ltd. The latter selected all the officers of the Canovanas Sugar Factory, Ltd., and through it had absolute management and control of the estate. During the twenty years the Colonial Company purchased the Lanman & Kemp mortgage for less than its face, and a year or two before the end of the twenty years filed a suit to foreclose it for its face value, making only the Canovanas Sugar Factory, Ltd., defendant. The heirs of Latimer, Hoard, and Fernandez asked leave to intervene. Borda’s interest had been purchased by the New Colonial Company, Ltd. The court allowed certain parties to intervene and to file cross bills, and, on accounting, the New Colonial Company, Ltd., endeavored to charge compound interest on its credits, including the face value of the Lanman & Kemp mortgage, and to have the court hold that it was not a trustee for the heirs of Latimer, Hoard, and Fernandez. While the suit was pending, and just before the twenty-year term was up, the New Colonial Company, Ltd., and the Cano-vanas Sugar Factory, Ltd., extended the term of the agreement for five years additional, and thereafter from year to year, as the parties might agree.</p> <p>2. The right to charge compound interest not having been stipulated, it cannot be charged.</p> <p>3. The agreement being silent as to interest on certain items, the creditor has a right to simple interest thereon, less such payments as may or should have been made on the principal from time to time.</p> <p>4. The Colonial Company, Ltd., was a trustee and controlled said property for the benefit of the heirs of Latimer, Hoard, Fernandez, and for Borda.</p> <p>5. That the New Colonial Company, Ltd., having succeeded, to th.e nights and duties of the Colonial Company, Ltd., and having purchased the interest of Borda, it thereafter was a trustee for the benefit of the heirs of Latimer, Hoard, and Fernandez to the extent represented by their respective stock interests, subject to the debts due it by them.</p> <p>6. That the Colonial Company, Ltd., and afterwards the New Colonial Company, Ltd., being trustees, as aforesaid, had no right at any time to foreclose the Lanman & Kemp mortgage, but that, if the latter at any time had such a right, it was extinguished by the agreement extending-the twenty-year agreement.</p> <p>7. As an accounting might have shown that nothing was due from in-terveners to plaintiff on account of its payments for the Lanman & Kemp mortgage, the interveners could not have been required to deposit in court the amount alleged by plaintiff to have been paid for the same. . ■</p> <p>8; That the New Colonial Company, Ltd., still continues to be a trustee for the benefit of said parties, and that the character of its possession has never been changed.</p> <p>9. That the court will make such further orders as may be necessary as to accounting, costs, etc., and that meanwhile the New Colonial Company, Ltd., shall continue in possession of the property as trustee of a going concern.</p>

<p>1. A conveyance made several years before the filing of the bill to set it aside and subject the property to execution will not be set aside when the proof shows that, at the date of the conveyance, the grantor was solvent.</p> <p>2. The fact that the conveyance was made without the payment of any consideration, and to a concubine of the grantor, does not alter the rule above stated.</p>

<p>1. The diversity of citizenship necessary to give the court jurisdiction exists in a suit by a citizen of Porto Rico against a partnership organized under the laws of Porto Rico, whose members are citizens of Spain.</p> <p>2. Such a partnership is neither a corporation nor such a joint stock association that the jurisdiction of this court can be predicated upon its supposed citizenship.</p> <p>3. Such a partnership has no citizenship for jurisdictional purposes, whether general or “en comandita.”</p> <p>4. Articles 116 and 122 of the Code of Commerce, § 35 of the Civil Code, and the Bruguera Case, vol. 25, p. 457 (Supreme Court of Spain), Jurisprudencia Civil, construed.</p>

<p>1. At least since the passage of the municipal act of February 14th, 1900, a municipality of Porto Rico may sue and be sued in all manner of legal proceedings.</p> <p>2. Although the remedy by injunction does not lie in favor of a citizen suffering mere inconvenience and incidental injury resulting to him simply from the adoption of a plan or a system of sewers, yet, where the acts complained of amount to an actual taking of his property, or a direct invasion of his property rights without just compensation or due process of law, the remedy by injunction will lie.</p> <p>3. Even the legislative assembly cannot authorize á municipality to erect or maintain a nuisance, and if a nuisance is being maintained from which the complainant is suffering special injury, his right of action accrues.</p> <p>4. A court of equity has jurisdiction to examine into the whole question, with a view to enjoining the nuisance and affording relief in the way of damages in the same suit, when, by reason of the circumstances, a suit at law would afford inadequate relief.</p> <p>5. Where, upon a careful reading of a complaint, the court is convinced that it cannot intelligently pass upon the issues between the parties without having all the facts before it, it will enter an order overruling the demurrer, reserving all questions of jurisdiction.</p> <p>Note. — Injunction against a nuisance maintained by a municipal corporation, see note to Atlanta v. Warnoek, 23 L.R.A. 301; duty and liability of municipality as to drainage, see note to Georgetown v. Com. 61 L.R.A. 673.</p>

<p>1. Individuals as well as courts must take notice of the extent of authority conferred by law upon persons acting in an official capacity.</p> <p>2. Oral statements made before a written contract is executed cannot be used to,vary the terms of the latter.</p> <p>3. The commissioner of education is the only official with power to vary the terms of a'written contract to build a sehoolhouse.</p> <p>^4. When alterations are merely assented to, but there is no agreement as to value and cost of the same, the presumption is that no increased cost was contemplated.</p> <p>5. The circumstances connected with the giving of a receipt in full may he proven to show a mistake, if one there was.</p> <p>Note. — As to the admissibility of parol evidence to vary, add to, or alter a written contract, see note to Durkin v. Cobleigh, 17 L.R.A. 270, and note to Eire Ins. Asso. v. Wickham, 35 L. ed. U. S. 860.</p>

<p>1. Under the Spanish law Of waters of 1879 (extended to Porto Rico in 1886) Spain was the owner, of the beds (and the appurtenant'rights) of non-riavigable streams in Porto Rico, which rights passed to the United States by cession from that country, and, later, to the people of Porto Rico by the act of- Congress, of July 1st, 1902 (32 Stat. at L. 731, chap. 1383).</p> <p>2. The executive council of Porto Rico cannot, by taking part in the enactment of a law, devest itself of the powers which have been conferred on it exclusively.</p> <p>3. Section 218 of said law of waters referred to prerogatives of the Crown of Spain regarding the use of land and water, and all such prerogatives ceased at the time • of the cession of Porto Rico to the United States.</p> <p>4. Plaintiff having acquired none of these prerogatives or franchises before the cession, and not having been granted any by the new sovereign since, cannot claim to have the right to exercise any such.</p> <p>5. That section (218) is not in force in Porto Rico to the extent of conferring exclusive privileges on riparian owners, and general military orders Nos. 1 and 103 cannot be construed as granting any such ex- " • elusive privileges, nor as giving said section and vitality in that regard.</p> <p>6. United States Revised Statutes, § 2476, has no application to Porto Rico. i</p> <p>'7. The executive council, of Porto Rico, subject to approval by the governor, .. i has the exclusive power to grant franchises, and its acts in that .particular are legislative in character.'</p> <p>8. The grant to it, by the organic act, of that power, carries with; it, as a necessary incident, the power to confer upon the grantees of public-service franchises the right of eminent domain.</p> <p>■9. Such franchises probably should be approved by the President, and all franchises granted by the executive council are subject to congressional control.</p> <p>10. The insular law of eminent domain (Session Laws 1903, p. 50), con- . strued in conjunction with §§ 418 and 430 of the Civil Code, without recourse to the organic law, contain ample authority for the exercise by grantee of the right of eminent domain.</p> <p>11. A franchise to develop a water power and thereby create electric energy, to be sold to the public at rates to be regulated by the government, is a public-service franchise, and the grantee thereof can exercise the right of eminent domain.</p> <p>' Note. — As to the ownership of land under water, see' note to Goff v. Gougle, 42 L.R.A. 161.</p>

<p>1. A hill in aid of execution,, although- ancillary to the main case, should include the parties to whom the defendant in judgment claims to have sold.</p> <p>2. Such a proceeding being ancillary in the strictest sense of that term, and the court having had jurisdiction of the main case, it may proceed although the citizenship of the parties to the ancillary proceeding is such that the court would not have had jurisdiction over them had the proceeding been in the nature of an original suit.</p>

<p>1. The court will consider the pleadings and course of a suit in equity with a view to setting aside a decree pro confesso, entered more than five months before the ruling on the motion.</p>

<p>1. The action being for damages for an alleged breach of promise of marriage, the court will not, before judgment, order the arrest of a defendant, resident of the jurisdiction, who is not shown to intend leaving the same; who has not seduced plaintiff; who is not alleged to be concealing his property, nor to be insolvent, nor charged with fraud (unless the breach of promise can be so considered).</p> <p>2. The Porto Rican law of civil arrest is not in contravention of the organic act nor of any act of Congress.</p> <p>3. The Constitution governs Congress, and the laws enacted by Congress are the supreme law of the land in Porto Rico, whenever applicable.</p> <p>4. An action for damages for wilful injury to person and character (no seduction having been alleged) as the consequence of a failure to carry out a promise of marriage is an action.ex contractu for damages for breach of the contract of marriage.</p> <p>5. The issuing of an order of arrest in a civil case is discretionary with the court.</p> <p>6. Under the Porto -Rican statute the plaintiff in judgment cannot take the body of defendant in execution.</p> <p>7. Nor can the bondsmen of defendant be compelled to pay the judgment if the defendant does not absent himself after judgment.</p>

<p>1. A motion to dismiss a cause for lack of diverse citizenship and consequent want of jurisdiction may be sustained even after final judgment.</p> <p>2. Tf the interests of the defendants in judgment are several, such a motion will be sustained only as to those over whom the court had no jurisdiction.</p>

<p>1. A devise of real estate to L. in trust for life, with power to name a trustee to succeed him, and so ad infinitum, on condition that a charitable institution shall receive annually one half of the income from the property, the other half to the trustee for his services, does not constitute a perpetuity, and is not contrary to law, if there is no prohibition against the sale of the property.</p> <p>2. The testator has power to engraft conditions on the trust and to provide that failure on the part of the trustee to perform them shall terminate the trust, and such conditions may be self-operating.</p> <p>3. Acts on the part of one claiming to be the trustee, not consistent with the trust relation, but tending to defeat its purpose, may be shown by the beneficiary in a proceeding to declare the trust terminated.</p> <p>4. The fact that the beneficiary accepted from such person sums of money purporting to be paid under the terms of the trust will not estop it from alleging that such person is not in fact such trustee.</p> <p>5. A person claiming to be the trustee and performing acts as such cannot plead the statute of limitations against the, beneficiary.</p> <p><5. The power to L. to name his substitute trustee provided that such substitute trustee should immediately, on taking possession of the estate, designate his substitute trustee. Under those conditions L. could not designate a minor and provide that during his minority his curator should act for him. Such an appointment was void, the trust ended, and, under the provisions of the will, the beneficiary became ipso: facío the absolute owner.</p>

<p>1. The employers’ liability act of Porto Rico (P. R. Rev. Stat. §§ 322 — 333-} was, until the act of 59th Congress, chap. 3073, p. 232, Sess. Laws, went into effect, an exclusive remedy.</p> <p>2. The Porto Rican act gave no right of action to a parent of an injured boy unless death "ensued.</p> <p>3. The right of action given by § 60 of the Code of Civil Procedure is only the ordinary one reserved to the-minor in any case.</p> <p>4. The notice required by § 327, P. R. Rev. Stat., cannot be required of a minor, nor does the limitation of six months apply to such cases.</p> <p>5. The minor may sue by his next friend at any time before majority, or by himself on attaining that age.</p> <p>6. Chapter 3073, 34 Stat. at L. 232, Sess. Laws 59th Congress, applies to Porto Rico, and, in so far as the act of Congress conflicts with the Porto Rican act, supersedes the latter.</p> <p>7. Said act of Congress (the national employers’ liability act) is constitutional in Porto Rico and is locally applicable.</p> <p>8. Sections 212 to 221 of the Civil Code only apply to actions between __ the persons therein mentioned.</p>

<p>Í. The district court of the United States for Porto Rico has jurisdiction on its law side of a suit in personam against a steamship company for injuries caused to a workman engaged in lightering freight from one of its steamers anchored in a harbor.</p> <p>2. Unless in such a suit plaintiff seeks to libel the vessel it need not be prosecuted in admiralty.</p>

<p>1. Whether or not a lion for freight charges has been waived by the shipowner is a qaestion of fact, to be shown by proof as to the intention of the parties.</p> <p>2. A statement that “the freight is payable on delivery” of the.cargo is not evidence of a waiver of the lien.</p>

<p>1. Failure of a party to produce proof in its control produces a presumption against it.</p> <p>2. A possessory title which, does not antedate the attachment under which the property was sold is not prior to the conveyance to the purchaser in attachment.</p> <p>3. The court will not presume that a landowner was cited in proceedings for a possessory title when all the facts in the ease rebut such a presumption.</p> <p>4. A party with a better title under an unregistered conveyance is not barred by a possessory title in less than twenty years.</p> <p>5. Fraud in the procuring of a possessory title is sufficient, of itself, to confer jurisdiction upon a court of equity.</p> <p>6. Parties are estopped from denying their former acts and declarations.</p> <p>7. Uncertainty as to the effect of a remedy at law, and the certainty of a multiplicity of suits, are grounds for the exercise of equitable jurisdiction.</p> <p>■8. An action to annul a possessory title for fraud, to correct or cancel the entries on the books of the registrar of property, to recover the land, and for an accounting, is not multifarious, and may be brought on the equity side of the docket.</p> <p>9. Subsequent purchasers claiming under one who obtained a possessory title by fraud are bound by his acts.</p> <p>10. Purchasers having prior actual notice of facts adverse to the title of their grantor are not innocent purchasers without notice.</p> <p>11. A fraudulent possessory title and the conveyances thereunder are clouds upon the title, and will be removed by an order directed to the registrar of property.</p> <p>12. Under the law “in force in Porto Rico, a possessory title, before the time has elapsed to entitle its possessor to a dominion title (and before that is done) has no final effect as to a better title, either in favor of the person to whom it is issued or his assigns, and is simply notice to the world that the person in whose favor it is issued is holding adverse possession of the premises.”</p> <p>13. Such a title has no effect as against a person who should have been cited, but who was not.</p> <p>Note. — -Presumption against a party from failure to produce evidence; see note to Cartier v. Troy Lumber Co. 14 L.R.A. 470.</p>

<p>1. The owners of $23,500 of the capital stock of a corporation organized for $200,000, and which has issued $172,000 of the same, who charge the officers of the corporation with mismanagement, incapacity, ignorance, waste, extravagance, failure to account, usurpation of powers not granted to them, exercise of duties not authorized, and other misdoings, and that this mismanagement, if allowed to continue, will cause a total loss to the corporation, being a minority in interest, are not entitled to an accounting or the appointment of a receiver until they have exhausted all means within their reach within the corporation to redress their grievances.</p> <p>2. Such charges must point out in what manner the wrong is being done, and for this general terms are not sufficient.</p>

<p>1. An unliquidated demand growing out of a transaction concerning which a contract has been made between the parties can be set off against an action on the contract.</p> <p>2. A contract will not be set aside as unconscionable unless it appears to be clearly so, nor if an adequate remedy exists at law.</p> <p>3. Plaintiff in the law action sought to recover on the contract. Defendant’s bill to enjoin the law action alleged that plaintiff was failing to make certain payments provided for by the contract, in order to coerce defendant into paying the account. A demurrer to the bill will be held in abeyance until the suit at law is disposed of.</p>

<p>Bill for an accounting. See opinion for facts showing verbal partnership, and right to an accounting.</p>

<p>1. Persons declared heirs 06 intestato of another cannot, within five years thereafter, dispose of the real estate of decedent, except subject to the claims of other persons claiming also to be heirs.</p> <p>2. Purchasers during that time take with notice, and this without regard to the good faith of the transaction.</p> <p>3. A cautionary notice on the books of the registrar of property is notice to subsequent purchasers, although canceled of record, if the act of cancelation has been appealed from and is subsequently held void.</p> <p>4. Sections 1266 of the Civil Code and 36 and 37 of the mortgage law have no application to an action brought by a person claiming as heir ab intestato of another, although such an action may involve the decision of the invalidity of a conveyance for lack of consideration and as simulated.</p> <p>5. The remedy in such a ease, involving, as it does, the correction of an ¡entry on the books of the registry of property, is in the Federal court, on its equity side,</p> <p>6. Section 1261 of the Civil Code of Porto Rico is not binding on the UnitPd States district court,</p> <p>7. Persons through whom title to land has passed, but having no present interest therein, and who are not to be affected by the decree, are not necessary parties.</p> <p>8. When the bill specifically waives an answer under oath, but the answer is nevertheless sworn to, two witnesses, or one and corroborative evidence, are not necessary to overcome the allegations of the latter.</p>

<p>1. Statement: The United States invaded Porto Eico on July 25, 1898; the actual conflict ceased October 18, 1898; the treaty of peace was signed December 10, 1898; ratifications were exchanged April 11, 1899; on April 14, 1899, the President, “by indorsement,” authorized the military commander of Porto Eico to establish a provisional United States court; June 27, 1899, the provisional court was established by military order No. 88, by the commanding general of the department of Porto Eico; the judicial system in force on July 25, 1898, had been continued so by general order of the American military commander, and the courts were open; the organic act establishing >civil government was passed April 11, 1900, and went into force May 1, 1900, and . by it the provisional court was discontinued and the present district court of the United States for Porto Eico was constituted. • Held: That the President had not exceeded his powers and that the provisional court was legally constituted.</p> <p>2. An act of Congress ratifying a military order creating a court cannot be held to be an ex post faeto law, in derogation of vested property rights, unless it first be shown that the creation of the court was unauthorized and the court not even one de facto.</p> <p>3. After the declaration of peace the military authorities had power, until Congress provided a civil government for Porto Eico, to create new tribunals and provide a form of government for the island. Their powers were not restricted to mere police powers.</p> <p>4. The fact that the general order creating the provisional court specified that in civil matters it should have the jurisdiction of a circuit court of the United States did not prohibit it from deciding eases in which an amount less than $2,000 was involved.</p> <p>5. Neither was the court without jurisdiction on the ground of a lack of diversity of citizenship because one party was a Spaniard and the others not citizens of a state.</p> <p>6. The judgments of such a court cannot be attacked collaterally.</p>

<p>1. A person born in Porto Rico and resident here when the peace protocol was signed, but who removed to Spain before the treaty of peace was proclaimed, returning to Porto Rico less than a year thereafter, and . who remained here several months, ánd then returned to Spain for a year or more, and was domiciled there, holding a “cédula personal” of the municipality wherein domiciled, but who swears that during all of said time his intention was to be a citizen of Porto Rico, is such still.</p> <p>2. “Cédulas personales” issued by Spanish municipalities to persons domiciled therein do not necessarily imply Spanish citizenship.</p>

<p>1. Upon a proper showing of merits the court will allow defendant in a decree pro oonfesso, after two years, to file a bill of review, and will set aside the decree.</p> <p>2. Negligence of attorney and the confusion following American occupation of Porto Rico may be considered in that connection.</p>

<p>1. A minor, resident of Porto Rico, whose father, a native of the Spanish Peninsula, registered her name with his as a Spanish subject, within a year following the promulgation of the treaty of peace between Spain and the United States, is a Spanish subject, unless, since coming of age, she has done something to change that status.</p> <p>2. Her marriage to a Porto Rican after the suit was filed does not affect the jurisdiction of the court. He is a nominal party only.</p>

<p>1. The declaration of intention to preserve Spanish citizenship provided for by the treaty of peace between Spain and the United States might, for a minor, be made by her father or her guardian.</p> <p>2. The foregoing is true although said minors, children of fathers born in the Peninsula, were themselves born in Porto Rico, and were residing here when the treaty took effect.</p> <p>3. G. O. No. 132, series of 1899, by the military governor of Porto Rico, cited and approved.</p> <p>4. A woman of Spanish ■ citizenship, resident of Porto Rico, who marries a citizen of Porto Rico, follows his citizenship, and becomes a citizen of the latter country.</p> <p>Note. — Effect of marriage on wife’s status as an alien, see note to Comitis v. Parkerson, 22 L.R.A. 148.</p>