Volume 23 — Puerto Rico Reports

<p>Jurisdiction — Municipal Courts.' — According to both law and jurisprudence, the municipal courts of Porto Rico hav.e exclusive jurisdiction of civil cases in which the amount involved does not exceed $500.</p> <p>Damages — Profits—Complaint.—When a claim of 25 per cent monthly is set up in a complaint as the amount due to the plaintiff for unrealized profits and no extraordinary circumstance is pleaded, it must be held that the complaint does not state facts sufficient to constitute a cause of action as to the 25 per cent monthly.</p> <p>Id. — Jurisdiction.—Considering singly the different items set up in the complaint, it was held that the district court lacked original jurisdiction by reason of the amount involved.</p>

<p>Pleading — Amendment—Error.—When a plaintiff whose amended complaint has been dismissed for lack of cause of action does not ask leave to amend again after the demurrer is sustained and before judgment, nor asks for protection of his rights after judgment under section 140 .of the Code of Civil Procedure, nor indicates to this appellate court how the amended complaint could' have been further amended in order to set up a cause of action, nor suggests the existence of additional facts upon which to base a tenable theory of his ease, if any he have, he cannot afterwards complain that he was given no opportunity to amend his amended complaint; and even when the district court errs in rendering judgment, without giving him such opportunity, the error is not fundamental.</p>

<p>Bargain and Sale — Common Property — Record of Title — Ownership.-—When a property is owned by brothers in common pro indiviso by title of inheritance and one of them purchases the interests of the others and records his ’ title, from that moment the rights of the different joint-owners become vested' in one single person, the purchaser, and ho becomes, therefore, the sole owner of the property.</p> <p>Mortgage — Record of Title — Joint-owners.—The admission to record of a mortgage cannot be denied on the sole ground that the property is not recorded in the name of tlie mortgagor, when .it appears from the registry itself that he has acquired all the rights of the different joint-owners. He who is the owner of all of the different parts of a property is the owner of the whole property.</p>

<p>Debt — Extinction by Payment. — When it is admitted as proven that the plaintiff paid the defendant the full amount of the debt, the legal conclusion must follow that the said debt was extinguished by payment, according to section 1124 of the Civil Code.</p> <p>Id — Payment in Good Faith — Retention, of Debt. — A payment is valid if made in good faith to the person in possession of the credit prior to the levy of an attachment by the intervenor and there is no judicial order to retain the debt.</p> <p>Id. — Cancellation of Mortgage. — When a debt is paid in full the debtor has a right to the cancellation of the mortgage which secured it.</p> <p>Attachment — Preference.—According to article 44 of the Mortgage Law, in harmony with section 1824 of the Civil Code, a creditor who obtains the entry of.a cautionary notice of attachment in his favor shall have preference with regard to the property attached only over those who have other claims against the same debtor contracted after such entry.</p> <p>Id. — Property Bights — Preference.—The entry of a cautionary notice of attachment by order of court and intended only to secure the result of a suit, neither, creates nor determines any right, nor alters the nature of the obligations, nor can it convert into a real action or action of foreclosure an action which is not of such nature, and it has no other effect than to give preference as to the property attached to the creditor who secured the attachment over other creditors whose claims against the same debtor were ’contracted after the entry of said cautionary notice.</p> <p>Third Parties — Record of Title. — The third parties referred to in articles 23, 25 and, 27 of the Mortgage,Law are only those who have previously recorded their respective titles to the properties and rights in litigation.</p> <p>Id. — Private Instrument. — The date of a private instrument shall be effective against third parties only from the day on which it may have been filed or recorded in a public registry, from the death of any of those who signed it or from the date on which it may have been delivered to a public official by virtue of his office.</p> <p>Id. — Evidence—Estoppel.—A person who acknowledges the genuineness of written evidences of payment and does not question the dates thereof or give any reason why they are invalid, must accept the legal consequences of such acknowledgment and is estopped by his own acts from objecting to their proba-tory force in connection with the date of the payments.</p> <p>Id. — Evidence—Private Instrument — Presumption.—Section 1395 of the Civil Code is strictly applicable when there is no other evidence of an act or contract than a private document, but the said section does not provide that such a document combined with other probatory elements may not be held to prove the said act or contract as against a third party. The said section contains a presumption of law which may be overcome by evidence to the contrary.</p>

<p>Authorization — Alienation— Property op Minors — Repeal.—Articles 56, 58 and subsection 23 of article 63 of the former Law of Civil Procedure, which went into effect' on January 1, 1886, by virtue of a Royal Decree of September 25, 1885, were repealed by article 164 of the Spanish Civil Code, which took effect on January 1, 1890, by virtue of’ a Boyal Decree of July 31, 1889, in so far as they referred to the jurisdiction of courts to grant authorization for the alienation of property of minors or incapacitated persons.</p> <p>Td. — Alienation—Property of Minors — Domicil—Jurisdiction.—The plain language of article 164 of the Spanish Civil Code shows that the intention of the legislature in enacting that authorization of court should be necessary for alienating or encumbering the property of minors, was that such authorization should be granted by the judge of the domicil of the minor and not by any other judge, thus determining the authority which should complete the civil capacity v of the father or the mother of the minor, - which capacity can be completed only in the manner provided by said article.</p> <p>Id. — Jurisdiction—Construction of Law — Exception.—It is the doctrine of the Supreme Court of Spain that questions of jurisdiction cannot be raised in ex parte proceedings, because the law grants this to the judge before whom the ease is brought; but this rule is not applicable when, in a case like the present one, the code establishes a provision incompatible therewith — that is, that the authorization to alienate or encumber property belonging to minors or incapacitated persons must be granted by the judge of their domieil.</p> <p>Administrative Appeal. — Decisions rendered in administrative appeals from decisions of registrars of property are not binding upon the courts.</p>

<p>Decided on the grounds stated in the opinion delivered in Case No. 1218, Mar-torrell et al. v. J. Ochoa Brother et al., ante.'</p>

<p>Consolidation of Properties — Record op Title. — When it is sought to consolidate two properties the area of one of which appears in the registry and that of the other does not and certain parcels of specified areas have been segregated, it is necessary to know the remaining area of the property from which the parcels were segregated in order thus to determine whether the area ascribed to the grouped property is or is not in conformity with the real facts and the records of the registry.</p> <p>Id. — Description op Property — Record op Title. — When the appellant states in the deed of consolidation that he has been informed by an expert surveyor that the property contains a certain area, while the registrar maintains in his decision that such area is erroneous because a calculation made on the basis of the measurements of the boundaries recited in the description shows a lesser area than the Consolidated property is sádd to contain, the Supreme Court is not called upon to say whether the registrar or the appellant is mistaken, but it holds that if the latter desires to record the exact area of the grouped property he should present to the registrar a certificate of a competent expert showing the exact measurements.</p> <p>Id. — Reason for Consolidation. — There is no provision either in the Mortgage Law or its Regulations which requires that there shall be a reason for grouping properties. The convenience or desire of the owner is all that is necessary, provided he comply with the necessary requirements for consolidating different tracts of land recorded under different numbers into one single property.</p>

<p>Petition for a Writ of Certiorari to the Judge of the District Court of Humacao in an Action for Injunction.</p> <p>Tlie facts are stated in tlie opinion.</p>

<p>Arrest — Warrant—-Misdemeanor.—In making an arrest -without a warrant for a "breach of the peace or any other misdemeanor, the officer must act promptly at the time the offense is committed. If he does not act immediately after the offense has been committed, as a rule he cannot make an arrest later without securing a warrant and proceeding in accordance with its terms.</p> <p>Id.- — -Warrant—Reasonable Time. — Where the facts are undisputed the question as to what is a reasonable time within which an officer may make an arrest without a warrant is a matter for the court to determine.</p> <p>Id. — -Warrant—Assault and Battery. — When after having witnessed the commission of a misdemeanor a policeman departs on other .business, or for other purposes, and afterwards returns, he cannot then make an arrest for the said offense without a warrant. If he does make the arrest in such circumstances without informing the defendant of his authority to make the arrest or of the crime charged against him and is assaulted and beaten by the defendant, the offense is one of simple assault and battery.</p>

<p>Appeal from the District Court of San Juan, Section 1, in an Action for the Execution of a Deed, Etc.</p> <p>The facts are stated in the opinion.</p>

<p>Record oe Title' — Denial oe Record — Presumption.—When the registrar denies any record or entry he should state clearly the actual reasons for such denial, citing the particular section of the law on which he "bases the same, and not leave them to be presumed.</p> <p>Id. — Corporation—Stock at Less than par Value. — Whatever may be the real meaning of section 18 of the Act of March 11, 1911, it does not expressly forbid the issue of stock by the directors of a corporation at less than its par value.</p> <p>Id.' — When a document of the kind involved in the case at bar is presented in the registry, the registrar is not bound to refuse its admission to record unless it is void on its face.</p> <p>Id. — Contract.—When a contract contains all the essentials required by section • 1228 of the Civil Code; namely, the consent of the contracting parties, a definite subject-matter and a consideration, the registrar should not refuse its admission .to record because the contract may be reseindable.</p>

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

<p>Construction of Law — Remedial Provision. — The provision of section 140 of the Code of Civil Procedure, which is similar to section 473 of the Code of California, is a remedial provision and should be construed liberally with a view to effect its'object and promote justice. It is best observed by disposing of causes upon their substantial merits rather than with strict regard to technical rules of procedure.</p> <p>Id. — Discretion of Court. — Under section 140 of the Code of Civil Procedure, the discretion of the court ought always to be exercised in conformity with the spirit of the law and in such , a manner as will subserve rather than impede or defeat the ends of justice, mere technicalities being regarded as obstacles to be avoided rather than as principles to which eüect is to be given in derogation of substantial right.</p> <p>Id. — Discretion of Court — Appearance.—Where the court does not exercise, or, if exercising, abuses its discretion in considering the circumstances that prevent the plaintiff from appearing at the trial, its ruling should-be reversed.</p>

<p>Petition for a Writ of Certiorari to the Judges of the District Court of Aguadilla and San Juan, Section 2, in a Prosecution for Bribery.</p> <p>The facts are stated in the opinion.</p>

<p>Power op .Attorney — Contract.—In this ease the plaintiff and the defendant-entered into a contract which is set out in the following, letter written by the latter to the former: “I hereby authorize you to use the means at your disposal to collect $16,153.50, the amount of rent due me on 1,591.63 cuerdas of land from January 1, 1913, to March 31 of the present year from Mr. Behn, receiver of the Borinquen Sugar Company. In naming you my agent and representative for this purpose I also authorize you, for your own account and risk, to employ the services of an attorney, if necessary, and it is understood that I will accept 50 per cent of the above amount from you in full payment of the debt; for which end I authorize you to sign and endorse my name on the check which may be delivered to me for the said amount, allowing you the benefit of any sum in excess of this percentage as a commission for your services.” Seld: That the said contract should be considered a power of attorney and be governed by the provisions of the Revised Civil Code relating thereto.</p> <p>Id. — Action por Damages. — According to the laws of Porto Rico a principal has the right to revoke a power of "attorney at his pleasure, and the mere faci. that he exercises that right cannot serve as grounds for an action for damages.</p> <p>Id. — Construction.—In construing a power of attorney, not only the law but also the terms, agreements and conditions of eaeh particular ease should be taken into account.</p> <p>Id. — Acquired Eights — Eevocation.'—If according to the conditions of a contract the agent acquires rights conferred upon him therein while the contract is in force, the principal cannot deprive him of said rights by a subsequent revocation of the power.</p>

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

<p>Appeal from the District Court of Humacao in an Action % . for Damages.</p> <p>The facts are stated in the opinion.</p>

<p>Jurisdiction — Presumption—Execution.—A motion having "been made in the District Court of Aguadilla for an execution under a judgment rendered by the District Court of Mayagiiez in 1903 in an action involving real property in San Sebastián which was incorporated in the judicial district of Aguadilla by the Act of 1904 reorganizing the judiciary system, it should be presumed that the ease was transferred to the District Court of Aguadilla and that therefore that court has jurisdiction.</p> <p>Id. — Execution—Judicial Notice. — In ruling on a motion for an execution the court may take judicial notice of the record of the case before it and it is not necessary that evidence be introduced concerning the same or that a copy thereof be delivered to the adverse party.</p> <p>Subrogation — Presumption.'—When the court rules on a motion in which it appears that the owners are subrogated to the rights of a party to the suit, the presumption is that such subrogation is shown in the record of the ease.</p> <p>Bescissory Action — Third Persons — Fraudulent Conveyance. — Article 37 of the Mortgage Law does not provide that a rescissory action shall not prejudice third persons when their records have been in effect for a year, but that it shall not when the action is not brought within a year from the time of the fraudulent conveyance.</p> <p>Id. — Third Persons — Partition.—Persons who appear to have received property in the rescinded partition and whose records are ordered canceled are not third persons.</p> <p>Id. — -Third Person — Day in Court — Execution—Partition.-—It cannot be held that one who claims to be a third person has not had his day in court when he is served with the motion for execution in which an order for the cancellation of records in the registry of property is asked for and he takes an active part in opposing said motion, especially when the record shows that • he made the purchase whose record is ordered canceled after a cautionary notice had been entered in the registry of the action to rescind the partition in which his vendor acquired the property.</p> <p>Execution — Discretion oe Court. — Although section 239 of the Code of Civil Procedure limits the time for taking out execution to five years, as section 234 of the same code authorizes the court to issue execution in all ease.s other than for the recovery of money after five years from, the entry of judgment the presumption is that in ordering execution to issue after said five years the court made use of such discretional authority.</p>

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

<p>Appeal from the District Court of Arecibo in an Action of Injunction to Recover Possession of Real Property.</p> <p>The facts are stated in the opinion.</p>

<p>This appeal having come on for hearing on July 16, 1915, after considering the transcript of the record in which there is no statement of the case or bill of exceptions, and it not appearing that any fundaemntal error was committed or alleged, this court affirmed the judgment of the District Court of Humacao • of November 17, 1914.</p>

<p>Ejectment — Damages—Evidence.—Having examined the evidence introduced in this case, consisting of plans, deeds and the testimony of expert and other witnesses, it was held that the evidence was contradictory as to the property in question; that, as found by the trial court, the damages were not sufficiently proven, and that as it was not shown that the trial court was influenced by passion, prejudice or partiality or committed any manifest error, its judgment should be affirmed.</p>

<p>Appeal from the District Court of Mayagüez in an Action for Damages.</p> <p>Motion of the Appellee for Dismissal of the Appeal.</p> <p>Tbe facts are stated in the opinion.</p>

<p>Ejectment — Possession—Complaint.—In an action of ejectment it is absolutely neeessary to allege and prove the possession of the property by the defendant and when there is no allegation in the complaint of such possession it is fatally defective.</p> <p>Id. — Damages—Complaint.'—'"When in a complaint in ejeetment there is a prayer for damages which is subordinate to the principal prayer for the restitution of the property, if the latter prayer cannot prosper under the allegations of the complaint, the former prayer must fail.</p> <p>Id. — Damages—Complaint.—In order that a prayer for damages may be sustained when the property cannot be restored the complaint must specify such property and give the reason for its non-existence and its value.</p>

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

<p>Appeal from the District Court of Ponce in an Action for Specific Performance of Contract.</p> <p>The facts are stated in the opinion.</p>

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

<p>Appeal from the District Court of Humacao in a Prosecution for Violation of the Election Law.</p> <p>The facts are stated in the opinion.</p>

<p>Evidence — Object Put in Evidence — Appeal.—When an object put in evidence in the court below is not certified to .the appellate court in proper form, the court has no right or authority to consider it in deciding the case.</p> <p>Id. — Statement op Case — Bill op Exceptions. — The secretary of the lower court has no authority to add to the evidence. It is the judge who must certify to the faets brought out at the trial and such certificates must take the form of a statement of the case or bill of exceptions.</p> <p>Id. — Object Put in Evidence — Appeal.—If instead of describing an object in the bill of exceptions or statement of the ease an appellant desires to send up the original object, the course he should adopt is set forth in rule 406 of this court.</p>

<p>Appeal from the District Court of Ponce in an Action of Ejectment.</p> <p>Tlie facts are stated in the opinion.</p>

<p>Appeal from the District Court of Arecibo in An Action for Partition and Accounting of An Estate of Inheritance.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal — Stay op Execution — Capital Cases — Imprisonment—When section 4 . of the Act to amend certain sections of the Code of Criminal Procedure, approved March 12, 1903, superseded section 353 of the said code, the former distinction between capital eases and eases of imprisonment ceased to exist in regard to stay of execution in cases appealed to the Supreme Court.</p> <p>Id. — Stay op Execution — Imprisonment.—A defendant who has been sentenced to imprisonment in the penitentiary and appeals cannot be subjected to the rules applied to those who are serving sentences in the penitentiary, and if he remain deprived of his liberty it should bo under the same conditions as before his conviction.</p> <p>Id. — Bail—Discretion op Court. — Since the enactment of the Code of Criminal Procedure, a convicted defendant who appeals may be admitted to bail as a matter of right when the appeal is from a judgment imposing a fine only, and in the discretion of the court in all other cases.</p> <p>Id. — Bail—Discretion op Court. — Although an application for admission to bail pending an appeal may be made to the trial court or to the Supremo Court, good practice requires that it be made first to the trial court which naturally is in a better position than any other to ‘ exercise its discretion in weighing the circumstances of each case'.</p> <p>Id. — Bail—Discretion op Court. — The fact that there may be good grounds for the appeal is not of itself sufficient to compel the court to exercise its discretion in favor of the appellant’s petition to be admitted to bail.</p> <p>Id. — Bail—Discretion op Court. — When in a petition for admission to bail the appellant fails to show that the district court abused its discretion in refusing to admit him to bail, his petition should be denied.</p>

<p>Appeal — Succession—Judgment—Parties.—When it is alleged in the complaint that the defendants compose the succession of another person because they are his heirs, a judgment rendered against any of them affects the others and consequently affects the succession of said person, therefore an appeal taken in the name of the succession is an appeal in the name of all the defendants and it is not necessary that the appeal be taken individually by any of the heirs affected by the judgment.</p>

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

<p>Appeal from a Decision of the Registrar of Property Refusing to Cancel an Attachment.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a. Decision of the Registrar of Property Denying Admission to Record of a Deed Creating a Servitude.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a Decision of the Registrar of Property denying Admission to Record of a Deed of Sale.</p> <p>The facts are stated in the opinion.</p>

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

<p>Evidence — Confession—Warning.—In the absence of a statutory requirement of warning, the voluntary confession of a defendant is admissible in evidence, even though he be not warned that it will be used against him.</p> <p>Lottery Pool — Information.—-The information alleges that the defendant organ-ised a scheme for the distribution of money by lot, wherein a number of persons agreed to pay ten cents for each chance and $700 was to be paid to the winner after the. defendant had deducted 30 per cent, all depending upon certain races being run on the race track in San Juan. Held: That the information charged an offense under sections 291 and 292 of the Penal Code and was sufficient in the absence of objection.</p> <p>Id. — Gain or Profit.- — Sections 291 and 292 of the Penal Code do not make the receiving of a gain or profit an essential element of the offense, for it is the conducting of a lottery which is prohibited whether the defendant receives an advantage or not.</p> <p>Id. — Evidence—Corpus Delicti. — There being sufficient evidence to show the organization of the lottery, the winning of the principal sum by one of the witnesses, the investigation of the lists by the district chief of police, the knowledge of the latter and the confession of the defendant, it was held that the corpus delicti had been proved.</p>

<p>Appeal from the District Court of San Juan, Section 1, in an Action to Recover Money Deposited and Damages.</p> <p>The facts are stated in the opinion.</p>

<p>Possessory Title — Exemption prom Taxation — Value op Property — Certificate op Treasurer. — The mere statement in a petition to establish, a posses-sory title that the property is exempt from the payment of taxes or has not been assessed because it is worth less than $100 is insufficient to prove its actual value or that it had not been assessed. A certificate to that effect from the Treasurer of Porto Rico is required.</p>

<p>Promissory Note — Commercial Instrument. — The presumption is that promissory notes made payable to order are commercial instruments arising from commercial transactions in the absence of proof to the contrary.</p> <p>Id. — Commercial Transaction — Partnership Rights and Interests — Prescription.. — The purchase by one partner of the rights and interests in the firm of the other partners is not a commercial transaction within the meaning of article 2 of the Code of Commerce and an action on promissory notes given in payment of the purchase price is not subject to the limitation of three years prescribed by article 950 of the said code.</p>

<p>Appeal from the District Court of San Juan, Section 2, in a Prosecution for Disturbing the Public Peace.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Municipalities — Municipal Ordinances — Public Welfare — Sections 25 and 26 of tbe Act of 1906 establishing a system of local government, and for other purposes, as amended in 1907, 1910 and 1911, empower the municipalities to adopt ordinances not in conflict with the laws of the Island governing, among other things, matters concerning the public welfare, and to impose penalties for the violation thereof not to exceed a fine of $50 or imprisonment in jail for fifteen days, or both. •</p> <p>Id. — Legislative Assembly — Delegation of Powers — Constitutional Law.— The legislative assembly can delegate to the municipalities the power to pass ' ordinances with regard to certain local affairs, which have the same force as . laws enacted by the Legislature and should be respected, and it can also delegate the authority to impose penalties for their violation as a means of "• enforcing compliance, which delegation of power is not unconstitutional.</p> <p>Complaint. — According to sections 22 and 23 of the Code of Criminal Procedure, as amended, a complaint is sufficient when it contains a sworn statement reciting as particularly as can be done the nature of the offense and the circumstances attending its commission.</p> <p>Id. — Municipal Ordinance — Municipal Court. — It is not necessary to copy the ordinance, in whole or in part, in a complaint charging the violation of the same, or even to give its title or the date of its adoption, when the prosecution is begun in a municipal court, because a municipal ordinance is a law peculiar to that forum and the court is required to take judicial cognizance thereof in the same manner that district courts are required to take cognizance of the acts of the legislative assembly.</p>

<p>Appeal — Appeal prom Municipal Court — Motion to Set Aside Execution Sale — Final Judgment. — An order by a municipal court overruling a motion to set aside an execution sale is appealable to the district court because it is a final judgment clearly coming witliin the letter and spirit of the Act of March 11, 1908, regulating appeals from judgments of municipal courts in civil actions.</p> <p>Id. — Construction of Law — Remedial Statutes.' — Statutes granting and regulating the right of appeal are recognized as remedial in their nature and should receive liberal construction.</p>

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

<p>Appeal from tbe District Court of San Juan, Section 2, in a Prosecution for Petty Larceny.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Prescription — Demurrer—PReading.—When the demurrer specifies the section1 of the code relied upon to support the plea of prescription and that section, is not. the one applicable to the ease but a different one is, the demurrer. cannot be sustained under the latter section, because the plaintiff had no opportunity to defend himself against a question not properly raised.</p> <p>Id. — Demurrer—Pleading.—When, as in this case, although the section of the code on which the plea of prescription is based is not specified, the demurrer contains sufficient data to raise the legal question and it is shown that it was well understood by the lower court as well as by this court and by the plaintiff and appellant, the question of prescription involved can and should be passed upon. ’ -</p> <p>Id. — Action of Filiation — Construction op Law — Constitutional Law. — According to the law in force prior to the adoption of the Revised Civil Code, or the Civil Code of 1889, a natural child could bring an action of filiation during the life of his father (article 137 'of the former Civil Code, and pursuant to the Revised Civil Code of 1902, section 199) only within two years after having become of age, or in case of bis being of age in 1902, only two years after the code went into effect; which interpretation is necessary in order that section 199 of the Revised Civil Code may be deemed constitutional-Construction op Law — Vested Rights — Retroactive Eppecc op Statutes. — It is a principle sanctioned by section 3 of the Revised Civil Code that laws shall have no retroactivo effect unless it is expressly so .provided therein, and that in no case shall a retroactive effect of a statute prejudice rights acquired', under the protection of prior legislation. Hence, as no retroactive effect was-, given to the Act of March 9, 1911, it cannot he applied to revive rights already extinguished under prior legislation; and in no case could a retroactive-effect of a statute affect rights acquired under article. 137 'of the former Civil, Code and under section 199 of the .Revised Civil Code. . ^</p> <p>Action op Filiation — Construction op Law — Prescription.—The Act of 1911 was not limited to reviving the law in force prior to 1902. The difference-between them is fundamental. Under the old Civil Code, as a general rule; an action of filiation could be brought only during the life of the; putative; father, and Aet £To. 78 of 1911 extended that time to one year after the death of the father. Under the old Civil Code, the alleged father eould always answer and deny the paternity attributed to him. Under the Aet of 1911, the action need not be brought until after the death of the alleged father ap.d acts may be imputed to him whose certitude the heirs frequently find it very difficult to verify.</p>

<p>Evidence — Taking Testimony in Absence of Dependants — Agreement beTWEEN PARTIES' — ABUSE OP DISCRETION — REOPENING OP CASE. In this Case tibie attorneys for the parties and the judge agreed to go to a certain place to taire the testimony of a witness who was physically unable to appear in court and the attorney for the plaintiff agreed to take the attorney for the defendants to the place in his automobile. Accordingly, the attorney for the plaintiff called at the house of the attorney for the defendants and upon being informed that tho latter had already gone, the judge and the attorney for the plaintiff proceeded to take the testimony of .the witness as well as of another witness in the absence of the attorney for the defendants, who duly objected and excepted to this manner of taking said testimony. Seld: That the lower court committed error for it was without authority to take the testimony of the said witnesses in the absence of the defendants who had a right to be present at each and every stage of the trial and that even if it were discretional with the court, it abused such discretion in refusing to re-open the case.</p> <p>Id. — Ejectment—Description op Property — Plan op Surveyor. — A court commits, error when in an ejectment suit, without other data or information than the report of the surveyor, it admits a plan on the theory that the plaintiffs had described the land as being the same in two different descriptions.</p> <p>Id. — Id.—Identification of Property- — Burden of Proof.; — In an action of ejeet- • ment where the question is the identity of property the burden is squarely on the plaintiff to prove every step of his ease.</p> <p>Id. — Id.—Plan of Surveyor. — The plan of a surveyor made without summoning the adjacent owners and based exclusively on statements of witnesses whose source of knowledge was not shown, is not sufficient to prove title in the plaintiff in an action of ejectment.</p> <p>i</p> <p>Id.- — Id.—Description oe Property. — Even supposing that the description of the property contained in the original deed should bo construed liberally with regard to the name of the ward, the plaintiff is bound by it in the absence of an explanation of the supposed mistake.</p>

<p>Appeal from the District Court of San Juan, Section 2, in-An Action of Ejectment and for Annulment of Titles, and Cancellation of Mortgage Records.</p> <p>The facts are stated in the opinion.</p>

<p>Contract — Agricultural Financing — Tutor—Record of Contract — Authorization of Court — Lease.—Aceordmg to subdivision 5 of the amendment to section 282 of the Civil Code, approved March 9, 1911, the tutor must have .the authorization of the court in order to enter into a contract of agricultural financing and grinding of cane, as provided for by the Act of March 10, 1910, when the same is to be recorded in the registry of property, although it may be for less than six years. The same limitation exists with regard to a contract of lease.</p>

<p>Community Property — Conjugal Partnership-t-Divorce — Record op Title.— After a marriage is dissolved neither of the former spouses is competent to deeide to whom' the property belongs and to record sueh decision in the registry of property, but the partnership should be liquidated in accordance with the rules prescribed by law.</p>

<p>Bargain AND Sale — Conjugal Partnership — Corporation—Becord oe Title— Freedom to Contract. — A contract of bargain and sale of real property executed by a conjugal partnership, personally represented by both parties, in favor of a duly organized corporation, represented by its president who was expressly appointed by the board of directors entrusted with the management of its affairs, is valid and hence recordable in the registry of property, although the husband in the conjugal partnership is the president of the corporation and acts in both capacities in the execution of the deed. -Although in such a ease the same person represents both parties theyendor and vendee are distinct entities and in the absence of a statutory prohibition, express or implied, or of a manifestly immoral consequence, the principle of freedom of contract must prevail, whether the persons be natural or artificial.</p>

<p>Appeal from the District Court of San Juan, Section 2, in ■ An Action for the Restitution of Property.</p> <p>The facts are stated in the opinion.</p>

<p>Public Health and Safety — Scienter—Contagious or Infectious Disease.— In order to convict a defendant of violation of section 352 of the Penal Code it must be shown as an essential element of the offense that he knew the animal was afflicted with glanders or some other, contagious or infectious disease and that, knowing that fact, he failed to kill it or objected to its being killed by the sanitary authorities.</p>

<p>Hereditary Title — Record of Title — Sale of Joint Interest. — When the heifs have recorded in the registry only their title of intestate inheritance in common and pro indwiso with the surviving spouse in a certain property of the estate, they can convey only that indefinite and indeterminate interest as it appears in the registry, but not a joint interest equal to one-half of the value of the said property which, not being recorded in the name of the vendor, cannot be recorded in the name of the purchaser, for the reason that it is prohibited by article 20 of the Mortgage Law.</p>

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

<p>Judicial Sale — Marshal’s Deed — Record op Title — -Jurisdiction.—A municipal court has jurisdiction to order that the marshal execute a formal deed of sale to real property when the purchaser has duly paid the purchase price and is in possession of the same, so that he may record his title, provided that the amount involved is less tian $500 and there is no difficulty in determining the same upon a purely money-value basis.</p>

<p>Cancellation oe Mortgage — Record oe Title — Attorney in Fact — Power of Attorney. — When a deed of cancellation of mortgage executed by an attorney in fact is denied admission to record because it does not show the character and powers claimed by the attorney in fact, the only way to cure the defect, is by presenting the povyer of attorney appointing him as such and defining-his authority.</p> <p>Id. — Power oe Attorney- — Alienation oe Property — Record oe Title — Defective Deed. — In this case it was sought to cure such defect by presenting in the registry a new deed of cancellation and a power of attorney in favor of' a different attorney in fact, which power conferred upon the attorney authority to receive and collect interest, annuities and other accessories, to accept reimbursement of amounts loaned and give receipts for the same, to dissolve attachments and consent to the radiation of records. The registrar having deemed the said power of attorney insufficient for the cancellation of the mortgage, the present appeal was taken and it was Held: (1) That the power of attorney gives no express authority to cancel mortgages, which is an indispensable, requisite according to section 1615 of the Civil Code; " (2) that the cancellation of a mortgage involves a real act of alienation, for by it the mortgagee-is deprived of a real right belonging to him; (3) that the word “radiation” is not equivalent to the word “cancellation,” according to the Dictionary of' the Spanish Royal Academy, which should be referred to for the real meaning of the word; (4) that if any doubt should exist as to the interpretation of the power of attorney it must be construed strictly.</p>

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

<p>Appeal from lie District Court of San Juan, Section 2, in a Prosecution for Aggravated Assault and Battery.</p> <p>The facts are, stated in the opinion.</p>

<p>Information. — An information need not allege the section of the Penal Code ■which has been violated or the particular offense.</p> <p>Id. — Assault and Battery — Judgment.—The judgment need not specify the grade of the crime in a ease of assault and battery if the information and the proof show the offense.</p> <p>Assault and Battery — Aggravating Circumstances. — Under subdivision 6 of section 6 of the Act of March 10, 1904, an assault and battery committed with the butt or handle of a whip does not -make the assault aggravated. What aggravates" the offense is the use of the whip in the ordinary way so as to inflict disgrace.</p>

<p>Appeal from the District Court of San Juan, Section 2, in in Prosecution for Aggravated Assault and Battery.</p> <p>Tlie facts are stated in tlie opinion.</p>

<p>Appeal from the District Court of San Jnan, Section 1, in an Action to Recover Professional Fees.</p> <p>The facts are stated in the opinion.</p>

<p>Petition for a Writ of Mandamus Commanding Respondent to Allow an Amendment to a Statement of the Case for the Purpose of a Motion for a New Trial.</p> <p>The facts are stated in the opinion.</p>

<p>Common Property — Partition—Minors—-Authorization op Court. — Section 229 of the Civil Code, as amended by Act >No. 33 of March 9, 1911, is not applicable to a partition of common property in which minors are interested, ■because sucli partition is governed by section 413 in connection with section 1027 of the said code, and this section does not require an authorization of court in order to effect a partition of property owned in common by minors when they are represented by their father or mother, nor was it repealed by section 3 of said Act No. 33.</p>

<p>Change of Vende — Affidavit of Merits. — Although defendant’s affidavit in support of his motion for change of venue to the district of his domicil, which avers that he is thoroughly acquainted with all the facts of the ease and the allegations made therein both of his own knowledge and by the adviee of his attorney upon the said facts and the law applicable thereto, and that he is convinced that he has a good and sufficient defense to the'action is not a model of perfection, it is a sufficient compliance with the requirements of the statute.</p>

<p>Assault and Battery — Evidence.—It is a general principle of common law that when a homicide or an assault is charged as having been committed with a particular instrument, the attack must be proved as laid. The proof must be in harmony with the charge.</p> <p>Id. — Eirearim—Knife—Evidence.—If it is alleged, however, that the weapon used was a firearm or a knife, in the first case a revolver may be shown, and in the second case, any other similar cutting instrument may be proved.</p> <p>Id. — Kick—Blow with Éist — Evidence.—The allegation of a kick might be supported by proof of a blow with the fist when the injury is a direct result of the kick or the blow, but not when the injury, is caused, not directly by the blow, but by a fall on the ground.</p>

<p>Appeal from the District Court of Humacao in an Action for Damages for Slander.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a Decision of the Registrar of Property Denying Admission to Record of a Cancellation of Mortgage.</p> <p>The facts are stated in the opinion.</p>

<p>Pleading — Amendment of Complaint — Leave of Court — Answer—Demurrer.— According to the construction placed upon section 139 of the Code of Civil Procedure in the present ease, a plaintiff has a right as of course to amend his complaint before answer or demurrer and even after demurrer, but not after a ruling on the demurrer; for after an issue of law is submitted to the court the plaintiff cannot amend his complaint without leave of the court, which is almost invariably granted after a demurrer has been sustained.</p> <p>Id. — Amendment of Complaint. — If a plaintiff amend his complaint as of course when he should have, obtained leave of the court, such amended complaint has no legal force as a pleading, and the court may order it to be' stricken from the record.</p>

<p>Assault and Battery — Information.—An information need only charge clearly that the defendants committed the assault and battery by throwing stones at the victim and striking him with their fists, for in charging all it charged each of them with the commission of the acts.</p> <p>Id. — Information—Misdemeanor—Jurisdiction.—The fact that an information charging a misdemeanor is filed in a district court without giving the defendant an opportunity to be tried first in the municipal court does not deprive him of any material right.</p> <p>Id. — Aggravating Circumstances. — The fact that some of the defendants who were charged with assaulting and beating an old man were not persons of ■ robust health and strength, but were sick and delicate, cannot serve as a basis for not finding such aggravating circumstances as regards the other defendants whose physical condition was different.</p> <p>Id. — Classification of Offense. — Courts are not bound to classify offenses according to the opinions of witnesses, but in accordance with the law.</p>

<p>Appeal from the District Court of Humacao in a Prosecution for Carrying Arms.</p> <p>The facts are stated in the opinion.</p>

<p>UNlawful Assembly — Cock-Fight—Cruelty to Animals. — A cock-fight is an unlawful act as it is prohibited and penalized by section 5 of the Act for the prevention of cruelty to animals; therefore an assembly of several persons to pit cock-fights and their separation later without doing so bring them within the provisions of section 362 of the Penal Code.</p>

<p>Appeal from a Decision of the Registrar of Property Denying Admission to Record of an Instrument Acknowledging a Debt and Creating a Mortgage.</p> <p>The facts are stated in the opinion.</p>

<p>Exemption from Execution — Tools and Implements — Barbers.—According to section 249 of the Code of Civil Procedure, the tools and implements that are usually considered necessary for a barber's trade, he being considered a mechanic for such purpose, are exempt from execution when the value thereof does not exceed three hundred dolíais.</p> <p>Id.' — Construction of Law. — Statutes which exempt personal property from execution are remedial in character and intended to protect the debtor and enable him to follow his vocation and thus support himself and his family. Such statutes should be construed liberally.</p> <p>Id. — Tools and Implements — Journeymen and Apprentices. — The exemption is not limited to the tools and implements used by the debtor in his calling or ■ trade, but includes those used by his journeymen and apprentices.</p> <p>Id. — Duplication of Tools and Implement. — The mere duplication of tools and implements which are useful and usually necessary to the trade or calling of the debtor does not deprive them of their exempt character, unless their value exceed the sum of three hundred dollars fixed by the statute.</p> <p>Id. — Execution—Attachment.—Section 249 of the Code pf Civil Procedure is applicable both to executions and to Us pendens attachments.</p> <p>Id. — Purchase Price of Tools and Implements. — Subdivision 12 of section 249 of the Code of Civil Procedure is not applicable when the action is not brought for the purchase price or for the amount, of a mortgage on the articles seized, but for an obligation contracted with the sureties to repay them for money advanced which the debtor has seen fit to employ in the purchase of tools and implements of his trade.</p> <p>Id.- — Dissolution of. Attachment — Procedure.—The fact that a deputy marshal of the district court and not a marshal of the municipal court where the action was pending dissolved the attachment is immaterial, and there is no violation of procedure when the said attachment is dissolved and becomes effective immediately and the debtor obtains a clear title to the attached goods.</p> <p>Id.' — Certiorari—Procedure—Jurisdiction.—A writ of certiorari to review the decision of a court declaring certain property belonging to the debtor to be exempt from seizure does not lie when the court has heard the evidence and weighed the same, correctly or incorrectly, without violating any rule of procedure or jurisdiction.</p>

<p>Appeal from the District Court of San Juan, Section 1, in a Case of Intervention in Ownership of Real Property.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Ponce in an Action to Eecover a Tenancy in Common.</p> <p>'The facts are stated in the opinion.</p>

<p>Temporary Support — Litis Expensas — Appear..—An appeal by tbe defendant in an action for temporary support and lilis expensas on the ground that the court did not strike out a certain allegation of the complaint in which the sum of $5,000 is claimed as litis expensas, can serve no practical purpose when the judgment only orders the defendant to pay to the plaintiff thirty dollars monthly for support and disregards the claim for lilis expensas.</p> <p>Id. — Pleading—Means of I-IUsband. — In an action for temporary maintenance an allegation as to the means of the husband is in harmony with the provisions of section 168 of the Civil Code, for the said section provides that the district court shall order the husband to pay to the wife a sum for her separate maintenance in proportion to his means.</p> <p>Id. — Household Articles and Amusements.. — According to section 212 of the Civil Code, separate maintenance is understood to be for food, lodging, clothing, and medical attention, and not for the purchase of household articles or proper amusements.</p> <p>Id. — Pleading—Complaint—Residence of Plaintiff — Divorce.—In accordance with section 168 of the Civil Code only the following allegations are necessary in an action for separate maintenance: (a) That an action for divorce is pending; (h) that the wife has not sufficient means to provide for her maintenance during the suit; (c) that the husband has means. It is not necessary to allege that the plaintiff has resided in the Island for one year preceding the action for maintenance, nor to set up facts proving the right of the plaintiff to a divorce.</p> <p>Id. — Pleading—Defense..—As an action- for maintenance is incidental to the action for divorce which the plaintiff has brought against the defendant, allegations which really constitute matter of defense in the main action of divorce are not necessary in the incidental action, and only such allegations of defense as bear a relation to section 168 of the Civil Code are pertinent to the answer.</p> <p>Id. — Jurisdiction.—District courts have exclusive jurisdiction over actions for temporary support, as established by section 168 of the Civil Code. The court having jurisdiction of the main action has jurisdiction of a supplementary action.</p> <p>Appeal — Evidence— Statement oe Case.' — when the record does not contain a statement of the ease there is no basis upon which to consider the result of the evidence, and as has been held repeatedly, the' weight given thereto by the lower court cannot serve as grounds for discussion on appeal.</p> <p>Costs — Attorney Eees. — The court acts in accordance with law when it imposes the costs, disbursements and attorney fees of the adverse party upon the defendant who defends without any reasonable grounds.</p> <p>Appeal — Grounds oe Appeal — Agreement oe Appellee to Reversal. — When an appeal is once taken and is not withdrawn by the appellant it must be decided after considering the grounds upon which it is based, and the judgment appealed from must' be affirmed or reversed according to law, even when the appellee agrees to the prayer of the appellant for the reversal of the judgment without entering upon a consideration of the said grounds.</p>

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

<p>Assault and Batteey — Aggravating Circumstances — Information.—When a charge of aggravated assault and battery is made, some of the aggravating circumstances enumerated in section 6 of the Act of 1904, defining and punishing aggravated assault and battery, must he specified clearly in the information.</p> <p>Id.' — Aggravating Circumstances — Information.—In this case the appellant was charged with unlawfully and wilfully assaulting and beating the complaining witness with brass knuckles with intent to cause him serious bodily injury, inflicting upon him several wounds and bruises. Held: That none of the circumstances which under the law make the offense of assault and battery aggravated is alleged with sufficient clearness in the complaint.</p> <p>Id. — Deadly Weapon — Brass Knuckles. — Although brass knuckles may be a weapon capable of causing death and its use is prohibited by law, it is not a deadly weapon per se.</p>

<p>Sanitary Regulations — Sale of Bread Uncovered. — It was shown "by the evidence in this case that bread had been sold without being protected from dust and flies in violation of section 17 of Sanitary Rule and Regulation No. 30. It was shown also that the bread was not sold by the defendant, who only took it to the place ordered by his superior. Held: That the defendant was not guilty of the violation committed.</p>

<p>Appeal from a Decision of the Registrar of Property Denying Admission to Record of a Deed of Bargain and Sale.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Ponce in Habeas Corpus > • Proceedings.</p> <p>Tlie /'acts are stated in the opinion.</p>

<p>Parties to Action — Joinder op New Parties. — The court, on its own motion, may order that necessary parties he joined in. an action, hut it is not obliged to bring in, on motion of defendant and against • the will of the plaintiff, new parties who are not necessary, although they may be persons who might have been -sued.</p> <p>Id. — Waiver—Judgment.—If a plaintiff chooses to waive-any relief which would render necessary the joining of other parties and take judgment for that only to which he is entitled as against defendants already in court and as to which a complete determination can he had, the court may grant such relief without bringing in other parties. »</p> <p>Id. — Misjoinder op Parties — Demurrer—Appeal.—When a plaintiff successfully resists a demurrer for misjoinder of parties defendant, deliberately ignores facts alleged in the answer showing such misjoinder and persists in pursuing his action against the original defendants only, he cannot be heard on appeal to complain that he has been driven to a second action against the persons so excluded, and that he was not required to include them among the original defendants before judgment was entered.</p> <p>Id. — Error Invited. — An appellant can neither successfully attack an error which he himself has invited ndr assume before the appellate tribunal an attitude inconsistent with that taken by him at the trial.</p> <p>Parol Evidence — Estoppel by Deed — Recital.—Sections 101 of the Law of Evidence and 1186 of the Civil Code merely state the doctrine of the parol evidence rule and of estoppel by deed.- A recital which does not amount to a precise affirmation of a fact does not operate an estoppel to deny the fact. An estoppel does not arise from a recital unless it is of the essence of the agreement. A recital is not always and necessarily binding in an action not founded on the contract, nor involving any rights asserted thereunder wherein the agreement is invoked, not as between the parties thereto, but by a stranger, not as a contract under which rights are asserted, but as evidence of a mere admission favorable to the claim of such third party. In determining the effect of a recital it must be construed in connection with the whole contract. The party who pleads an estoppel must in good faith have been misled to his injury.</p>

<p>Servitude of Eight of Wat — Dominant Tenement — Servient Tenement.— Record in Registry — Third Person — Cancellation of Record. — By a public deed recorded in the registry a certain parcel of land known as “El Ejemplo” was segregated from a plantation called “Providencia” and sold subject to certain conditions, one of which was that the vendor bound himself to allow such roads over Ms plantation as the vendee might deem necessary, but without injury to its crops. Upon the death of the vendor a part of the plam-tation was allotted to one of his children and was recorded in the registry of property as a separate property under the name of “Vega del Recreo.” Subsequently the heir and the said vendee entered into a contract for a secured loan in which it was agreed to waive certain rights which each of them might have by virtue of the deed of sale of “El Ejemplo,” the vendee reserving the servitude of right of way only, and this was also recorded. The present owners of the property “Vega del Recreo,” who purchased the same ■from the heir, now pray for the annulment of the record and its cancellation in the registry. Held:</p> <p>3.That by the deed of sale of the property “El Ejemplo” the contracting parties intended to, and did, create a servitude of right of way in favor of the said property and against the plantation ‘ ‘ Providencia, ’ ’ the former being the dominant and the latter the servient tenement and'the said servitude being necessary because “El Ejemplo” was bounded on all sides by the plantation ‘ ‘ Providencia. ’ ’</p> <p>2. That by the other deed executed when the loan was contracted, not only did the servitude remain in force but was ratified with regard to the “Vega del Recreo ’ ’ property; however, the servitude would always have affected the said property because it formed part of the plantation “Providencia.”</p> <p>3. That the said deed, as worded, involves no personal obligation or promise on the part of the purchaser to create a servitude of right of way, but imposes a real right of servitude on the property and this right is admissible to record under the provisions of subdivision 2 of article 2 of the Mortgage Law.</p> <p>4. That the record of the servitude under consideration contains all the elements necessary to a real right of servitude and is not included in the cases of invalidity referred to in article 30 of the Mortgage Law. ■</p> <p>5. That the ancestor having imposed a servitude upon the whole property which upon his death descends to his heirs, one of whom recorded the part allotted to him in his own name, as such heir is not a third person but the continuer of the personality of his ancestor, the fact that he made such record does not prevent the owner of the dominant estate from recording the said servitude upon the part which the heir recorded in his own name.</p> <p>6. That the plaintiffs in this action cannot plead the status of third persons as a ground for praying for the annulment of the record of the servitude on the “Vega del Recreo” property, of which they are the owners, for the registry of property, which is the guaranty for contracts involving real property, plainly shows the existence of the 'encumbrance of servitude of right of way on the “'Providencia” plantation.</p> <p>7. That the recorded right under consideration has not been extinguished and consequently its cancellation in the registry cannot be ordered under subdivision 2 of article 79 of the Mortgage Law, and section 1224 of the Civil Code is not applicable inasmuch as a personal right is not involved.</p> <p>8. That if in the exercise of the right of servitude any conflict should arise between the interested parties, it can be adjusted by mutual agreement or by recourse to the proper court.</p>

<p>In this ease Chief Justice Hernández and Justice Aldrey voted to reverse that part of the judgment appealed from by the defendants and Justices Wolf and del Toro voted to affirm the same. On account of the fact that Mr. ‘ Justice Hutchison, who was the trial judge, toot no part in the decision of the appeal, a divided court resulted and thereby that part of the judgment appealed from by the defendants was affirmed.</p> <p>OPINION OB’ MR. JUSTICE DEL TORO.</p> <p>Jurisprudence — Conflict Between Judgment op Supreme Court op United States and That op Porto Rico. — When a judgment of the Supreme Court of Porto Rico is in conflict with a judgment of the Supreme Court of the United States, the jurisprudence established by the latter must prevail.</p> <p>Property op Minor — Payment op Debt — Partition.—Under the law of Porto Rico as it was in 1892, a widow and a guardian ad litem had no authority to give the property of a minor child in payment of a debt of its deceased father by means of a private sale, and there was no authority in any judge to approve such a voluntary partition as that involved in this action.</p> <p>Id.- — Ejectment—Rescission op Partition. — Conveyance of a minor’s property by private sale in Porto Rico unauthorized by the local law is void even if approved by a judge and on coming of age the minor may sue in ejectment under the provisions of the Civil Code of Porto Rico then in force and applicable to this ease, without first seeking tho rescission of the partition.</p> <p>Id. — Partition op Inheritance — Conveyance to Creditors — Authorization op Court. — Conveyances made direct .to creditors in satisfaction of their claims in the partition of an estate in which minors are interested without first obtaining the authorization of the court required by law for the sale of property belonging to minors are absolutely null and void.</p> <p>Appeal — Jurisdiction.—When an appeal is taken from only a part of a judgment, this court cannot consider or pass upon that part which has not been appealed from.</p> <p>Ejectment — Invalidity op Conveyances. — Although this is an action of ejectment, the complaint contains other prayers for the annulment of certain conveyances and their cancellation in the registry .of property. 'Under the theory finally adopted by the trial court, the said annulment and cancellation came to be the only questions which were definitely decided in the action. Held: That the conveyances in question being absolutely null and void, according to the doctrine established by the said opinion, and in view of all the attendant circumstances, the questions raised may be considered and decided in this action notwithstanding the dismissal of the action of ejectment.</p> <p>OPINION OP MR. JUSTICE ALDREY.</p> <p>Ejectment — Restitution op Property — Rents and Profits — Appeal—Incidental Claim. — When a plaintiff: sues in ejectment to recover the third part of a property and prays that he be reinstated in the possession and ownership of the samo and be allowed the rents and profits accruing during the time he had been deprived of the use of his property, if the judgment refuses such restitution and the plaintiff does not appeal from that part of it, not only has he no right to recover the. said rents and profits because the claim is incidental to the action of ejeetment dismissed by the court below, but this court is without jurisdiction to consider the question of restitution because there is no appeal from it and, therefore, no practical result can be obtained in this particular ease from a consideration of that of Longpré v. Dlae, 237 U. S. 512.</p> <p>Id. — Title of Defendant. — Before deciding upon the invalidity of the title of a person from whom it is sought to recover a certain property, the title of the person suing in ejectment should first be established.</p> <p>Id. — Title of Defendant — Defense.—Even when in addition to the allegations in the ejectment suit the complaint contains other allegations tending to show that the defendant's title is null and void and prays for a decree to that effect, unless the title on which the plaintiff rests his claim arises from the declaration of invalidity of the title of the defendant, such allegations of invalidity should be considered only as an anticipation of the defense and should not be passed upon when the action to which they are opposed is defeated.</p> <p>I-d. — Annulments.—When the annulments prayed for in a complaint are not the cause but the effect of the main action of ejectment and- the latter is defeated, any pronouncements regarding such annulments would be superfluous.</p>

<p>Appeal from the District Court of Ponce in an Action for Eescission of Contract and for Damages.</p> <p>The facts are stated in the opinion.</p>

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

<p>Disturbance of Peace — Public Meeting — Lawful Assembly — Presumption— Defense. — It is not necessary to allege in an information charging the disturbance of a public meeting that the assemblage -was lawful, for that presumption exists until the contrary is shown. It is a matter of defense.</p> <p>Id.- — Public Meeting — Lawful Assembly. — The object of section 3'58 of the Penal Code is manifestly to protect lawful assemblies or meetings, and in this case it was not necessary to allege or prove that the meeting was held within a building, even if that were necessary in the eases enumerated in the first part of the said section.</p> <p>Id. — Evidence—Leading Question — Discretion of Court — Abuse -of Discretion. — At a trial for disturbance of the peace in which there are several defendants the admission of a question by the prosecution as to whether the witness knew the defendants, stating their names for the purpose of identification, lies within the sound discretion of the court and although the question is leading, the judgment should not be reversed on that ground in the absence of a clear abuse of discretion or prejudice.</p> <p>Evidence. — A court has the right to give credit to a single witness.</p>

<p>Appeal from a Decision of the Begistrar of Property Be-fusing to Becord a Mortgage.</p> <p>The facts are stated in the opinion.</p>

<p>Change op Venue — Appeal.-—An order granting a change of venue being appeal-able under subdivision 3 of section 295 of the Code of Civil Procedure, that question cannot be considered on appeal from the judgment because it is expressly prohibited by section 305 of the said code.</p> <p>Answer — Specific Denial — Striking Out. — When the answer contains specific denials only and not- assertions, under subdivision 2 of section 110 of the Code of Civil Procedure there is no error in refusing to strike out the same.</p> <p>Id. — Divorce—Discretion—New Matter op Defense — Striking Out. — In an action of divorce the court is not in error in refusing to strike out new matter of defense set up in the answer tending to show that the defendant did not return to the conjugal abode on a certain day because the plaintiff prevented her doing so by threats.</p> <p>"Witnesses- — -Prejudice.—The fact that the court gave credence to the witnesses of one of the parties when from the view-point of- the appellant said witnesses were unworthy of belief, is not of itself sufficient to show prejudice on the part of the court.</p>

<p>Administrative Appeal — Acquiescence in Decision. — An appeal from the decision of a registrar refuging to enter a cautionary notice or tahe any action regarding instruments whose admission to record was denied by a former decision which clearly and squarely passed upon the same question should be dismissed, the said former decision being acquiesced in because more than twenty days elapsed between the date of its notification and the filing of the documents in the office of the secretary of this court.</p>

<p>Natdbal Children — Designation oe Heirship — Acknowledgment—Filiation—■ Prescription — Res Judicata. — When a plaintiff brings an action for designation of heirship on the supposed ground of acknowledgment as natural child and it is held that he is not entitled to share in the estate of the decedent because his action for acknowledgment had prescribed, such judgment may be pleaded as res judicata to an action for acknowledgment subsequently brought.</p> <p>Id. — Id.—Filiation—Res Judicata — Parties.—The fact that the husband was not made a party to the wife's action for designation of heirship although she was married, and is joined with her as plaintiff in the action for acknowledgment of natural filiation, does not affect the plea of res judicata.</p> <p>Id. — Prescription—Obiter Dictum. — The decision of this court in the ease of Castro v. Solis et dl., 19 P. E. B. 645, for designation of heirship, holding that the action had prescribed, was not oMter dictum in this case, but dato et non coneesso that it were and disregarding the plea of res judicata in the action for acknowledgment of natural filiation, the plea of prescription in the later action is sustained by other reasons adduced in the action for designation of heirship.</p>

<p>Appeal from the District Court of ITumaeao in a Prosecution for Carrying Arms.</p> <p>The facts are stated in the opinion.</p>

<p>The facts are stated in the opinion.</p>

<p>Abandonment of Minors — Wilful Omission — Lawful Excuse. — In a criminal prosecution for tbe abandonment of minors, it is not sufficient to show that the defendant failed to perform his paternal duty to his minor children by not furnishing them the necessary means of support, such as food, clothing and medical attendance. It must also be proved that such omission was wilful and without lawful excuse.</p> <p>Criminal Intent — Wilfully.—According to subdivision 1 of section 559 of the Penal Code, the word "wilfully," when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or incur in the omission.</p> <p>Id. — Presumption.—According to subdivision 2 of section 12 of the Penal Code, the intent is manifested by the circumstances connected with the offense, and a malieioiis and guilty intention is presumed from the manner and dgliberation with which an unlawful act is intended or committed for the purpose of injuring another.</p>

<p>ATTACHMENT — POSSESSION of Propertt — Abandonment.—In order to preserve an attachment the officer levying it must retain his control and power of taking immediate possession of the goods, and if he fail to do this, the' attachment will be regarded as abandoned.</p> <p>Id. — Control op Goods — Extinguishment of Lien. — If the depositary of attached goods, and through him the marshal of the court, permit the goods to leave Ms possession and be taken in satisfaction of a second attachment and sold, the lien originally acquired is lost by the surrender of the control of such goods.</p> <p>Id. — Second Attachment — Surrender of Goods — Custody.—When goods already attached are levied on by a third person, the depository should refuse to deliver them on the ground that they are already in the custody of the law, and if taken forcibly, the depositary should prosecute his remedy before the court in order to avoid the loss of the lien.</p> <p>Id. — Judgment—Judgment Lien — Priority.—Mere priority in- judgment gives a first creditor no lien; an attachment or other similar proceeding is necessary, for, as between judgment creditors, the first to attach has the priority.</p> <p>Id. — Preferred Credits. — The preferred credits to which sections 1822 et seq. of the Civil Code refer have no application to attachments.</p>

<p>Administrative Appeal — Interested Party — Becord op Title. — A person-whose title cannot be recorded without the admission to record of a previous title is an interested party in a decision refusing to record such previous title.</p> <p>Marshal’s Deed — Execution—Party to Deed — Estoppel.—Although a plaintiff in whose favor a deed of sale is executed by a marshal in satisfaction of a judgment because of the failure of the defendant to execute the same does not join in the execution of the deed, he cannot deny the existence of the contract set out in the said deed and is forever estopped from attacking the same.</p> <p>Id. — Acceptance op Deed — Becord op Title — Durable Defect. — A marshal complies with a writ of execution for the sale of property with the concurrence of the plaintiff when the deed is executed in the terms prayed for in the complaint and adjudged by the court, but when it is not stated that the plaintiff expressly and with legal formality accepted the deed, it contains a curable defect.</p> <p>Becord op Title — Priority op Becord — Construction op Law. — Article 17 of the Mortgage Law puts in practice the principle that the person who first records, enters, or presents in the registry an instrument conveying the ownership of realty is the first to receive the benefits of the record and takes precedence over those who may have titles of the same or of a prior date, and therefore establishes a reward for the person who records his title and a punishment for the one who fails to do so.</p> <p>Id. — Conflicting Titles — Continuity op Bights. — In conformity with the foregoing doctrine, article 17 of the Mortgage Law is applicable only in eases of antagonistic or conflicting titles and not when the titles are in perfect harmony and linked together containing a continuity of rights.</p>

<p>Rape — Imprisonment eor Life — Statement of Case — Discretion oe Court. — A district court in its discretion may sentence a person convicted of rape to-imprisonment for life, and in the absence of a statement of the case there is no basis upon which to decide whether it abused its discretional power.</p> <p>Constitutional Eight — Imprisonment por Life — Cruel and Unusual Punishment. — Life imprisonment is not cruel and unusual punishment and the Eighth Amendment to the Constitution of the United States is inapplicable to it.</p> <p>Id. — Id.—Cruel and Unusual Punishment. — Cruel and unusual punishment is punishment of a barbarous nature unknown to the common law. When that expression first appeared in the declaration of rights it did not refer to fine or imprisonment, or both, but to such punishment as that of the whipping-post, the pillory, burning at the stake, breaking on the wheel and the like, or quartering the culprit, cutting off his nose, ears, or limbs, or strangling him to death. They were such severe, cruel and unusual punishments as disgraced the civilization of former ages and made one shudder with horror.</p>

<p>Appeal from the District Court of Humacao in a Prosecution for Violation of Section 519 of the Penal Code.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a Decision of the Registrar of Property Denying Admission to Record of Instruments for the Partition of Property and the Annulment of a Gift Mortis Gimsce, etc.</p> <p>The facts are stated in the opinion.</p>

<p>Assault with Attempt to Commit Pape — Insanity—Evidence—Expert Testimony— Hypothetical Conclusion. — When the testimony of a medical expert called by the defense to prove the insanity of the accused in a prosecution for assault with attempt to commit rape relates to things sup-posititious that might or could happen to a person inclined to epilepsy or other similar affections, without showing any data by which he arrived at the conclusion that the accused was insane — that is, without expressing any hypothetical conclusions based on facts proved at the trial — it cannot bo held that the said testimony tended to show insanity.</p> <p>Id.- — Deliberate Acts — Evidence—Insanity.—The fact that a defendant in a prosecution for assault with attempt to commit rape went to the house of the victim, contrived to be alone with her and fled immediately after he committed the act, is all indicative of the ordinary elements of crime and not of insanity.</p> <p>Insanity — Emotional or Sudden Insanity. — The law does not favor the idea of sudden or emotional insanity with no real previous or subsequent indication, nor does the fact that the defendant was afterwards placed in an asylum affect the question.</p>

<p>Appeal from a Decision of tlie Registrar of Property Denying Admission to Record of a Private Contract for the Purchase and Sale of Sngar Cane.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of San Juan, Section 1, in Receivership Proceedings.</p> <p>The facts are stated in the opinion.</p> <p>The plaintiffs did not appear.</p>

<p>Natural Children — Intestate Succession op Grandfather. — The natural children of a legitimate son have no rights in the intestate succession of the grandfather, and, therefore, no capacity to institute intestate proceedings.</p> <p>Jd. — Construction op Law — Natural Children — Inheriting prom Grandfather — Descendants—Legitimate Children. — According to the laws in force in 1875, prior to the adoption of the Spanish Civil Code — that is, the Partida Laws — natural children could not inherit, either in their own right or per stirpes, from their grandfather, the lawful father of their putative father. The descendants referred to in Law III, Partida VI, the prototype of sections 931 and 934 of the Spanish Civil Code, comprise only legitimate children.</p> <p>Id. — Proof of Status of Heirs — Designation of Heirship — -Evidence.—When the plaintiff bases his action upon, his status of heir and that fact is not admitted by the defendant, the former may prove such a status at the trial without the necessity of having recourse therefor to ex parte proceedings to obtain a declaration of heirship; and unless some element of time or memory or other exceptional circumstance is involved, the testimony given at the trial upon the merits of the question has more intrinsic weight and real probative value, and, therefore, is even better evidence of the ultimate fact than the mere certified copy of an order entered in ex parte proceedings in which the adverse party had no participation; but such proof can only be valid and efficient with relation to the defendant in the particular case being considered.</p> <p>Id.- — Ejectment—Title of Heirship — Partition and Adjudication of Estate.— Heirship conveys a joint right to the aggregate heritage and by virtue thereof by the death of their predecessor all the heirs become owners in common and may all join in a suit in ejectment without the necessity of instituting proceedings for partition and distribution. But until such proceedings for partition and distribution are terminated, none of the heirs may be considered to be the sole and exclusive owner of any particular portion or fixed aliquot part of the property of the heritage, and, therefore, no single heir can successfully prosecute such an action.</p>

<p>Appeal from a Decision of the Registrar of Property Recording a Possessory Title with Curable Defect.</p> <p>The facts are stated in the opinion.</p>

Motion of the Fiscal for Leave to Correct the Record. Tbe facts are stated in tbe opinion. Tbe appellant did not appear.

<p>Appeal from the District Court of Areoibo in a Prosecution for Slander.</p> <p>The facts are stated in the opinion.</p>

<p>Okganic Act — Insular Legislation — Constitutional Law. — The Organic Act places no restriction npon insular legislation by prohibiting the inclusion of more than one matter or subject in a single act, or requiring that all matters so included shall be mentioned in the title. The said Organic Act did not bring with it to this island either every provision of every State constitution or any provision of any State constitution. Cases involving the powers of State or Territorial legislation in 'this regard invariably rest entirely upon the constitutional provisions of the particular State or Territory.</p> <p>Ultra Vires — Dree Textbooks for Pupils of Public Schools- — Appropriations— Legislative Assembly. — Appropriations Act No. 39 of March 11, 1915, is not ultra vires and void in so far as it attempts to regulate the furnishing of textbooks to the pupils of the public schools for the reason that it contains more than one matter or subject or that it does not mention all such matters or subjects in its title, and it is obvious that such legislation is within the powers of the Legislative Assembly.</p> <p>Public Schools- — Sale of Textbooks to 'Pupils — Commissioner of Education— Organic Act. — Appropriations Act No. 39 of 1915 authorizes the sale of' textbooks to the pupils of high and continuation schools, but -contains no» suggestion whatever of a direct sale by the Commissioner of Education in person, nor is there anything therein which conflicts with section 22 of the Organic Act. On the contrary, the said Act of 1915 is in full harmony with section 25 of the Organic Act.</p> <p>Constitution of Porto Eico — Organic Act — Civil Code. — The Organic Act and not the Civil Code is the constitution of Porto Eico, and the only rational view of section 3 of the Civil Code is that it merely voices in statutory form an ordinary, well-recognized, cardinal principle of statutory construction.</p> <p>Public Schools — Eetroactive Effect of Laws — Vested Eights. — Act No. 39 of 1915 is neither restrictive in form nor does it take away any vested right, inasmuch as it does not require pupils of high and continuation schools to pay for books formerly used in previous years, but only for those to be used in the future.</p> <p>Id. — -Vested Eights — Hope or Expectation. — It is an elementary principle that a bare hope or expectation based upon an anticipated continuation of the law in its original form can never be regarded as a vested right.</p> <p>Id. — Construction of Law — Codified School Laws — School Age. — Section 2 of the Codified School Laws never intended to make the higher institutions , of learning more generally accessible without cost to all applicants for admission than lower grades of the regular common-school system, or to confer upon any and all persons, regardless of age or of mental and moral qualifications or notwithstanding their refusal to. comply with the express statutory provision as to the acquisition of the necessary textbooks and supplies, or in the face of obviously possible circumstances and conditions, an absolute unqualified right to immediate enrollment as of course and without room or opportunity for the exercise of any discretion whatever upon the part of the school authorities in any of the “higher institutions of learning.“</p> <p>Mandamus — Eree Textbooks for Pupils of Public Schools — Commissioner of Education — Ministerial Duty. — In so far as it is mandatory Act No. 39 of 1915 absolutely forbids the Commissioner of Education to supply free textbooks and supplies to the pupils of high and continuation schools, and in so far as it is directory or permissive of a possible exception, that is not matter which could form the basis of mandamus proceedings in the absence of a plain ministerial duty.</p>

<p>Appeal from the District Court of Mayagüez in a Prosecution for Violation of Municipal Ordinances.</p> <p>The facts are stated in the opinion.</p>

<p>Pleading — Construction.—The averment of a pleading should be construed most strictly against the one who makes it.</p> <p>Negligence — Automobile—Common Carriers. — When a special contract of carriage is alleged in an action charging negligence in driving an automobile and there is no averment that the defendant is a common carrier, an attempt in the complaint to charge the special act of negligence militates against ■ the common carrier theory.</p> <p>Id. — Bailment for Hire — Automobile Garage — Liveryman—Duty of Carrier— Ordinary Care. — Where the contract is an ordinary bailment for hire, as is usual with automobile garages and livery stables, the duty of the carrier is to use ordinary care.</p> <p>Id. — Common Carrier — Degree of Care — Res Ipsa Loquitur. — When the carrier is a railroad, a street railway, a steamboat, a stage coach, or a person dedicated to the public service and offering to take all comers, a higher degree of care is exacted, and the maxim of res ipsa loquitur is frequently applied on the theory that such carriers, having control and knowing the machinery of the vehicle and thel road, will he in a position to explain the accident and are thus charged by the law with the duty of having such knowledge.</p> <p>Id. — Chauffeur — Automobile — Condition of Driver — Contributory Negligence. — Even when the proof shows that the chauffeur committed an act of negligence in continuing the journey while in a worn-out condition, which was the principal cause of the accident, if a passenger insist upon his continuing the journey notwithstanding the worn-out and extremely sleepy condition of the driver due to the fact that he had very little rest on account of the insistence of the passenger, the latter is guilty of contributory negligence.</p> <p>Evidence — Expert Testimony — Hypothetical Question — Objection.—A question put to a witness testifying as an expert may be objected to when the • witness has not qualified as an expert and the question does not state concrete facts proved at the trial in hypothetical form calling for the opinion of an expert.</p> <p>Id.- — -Witnesses—Contradictory Statements. — A party has a right to contradict his own witness by virtue of section 156 of the Law of Evidence, but he must show clearly the purpose of his question by indicating to the witness the details of his previous alleged inconsistent statements.</p> <p>Id. — Admission by Employee — Exception to Rule — Hearsay Evidence — Cumulative Evidence. — Admissions of an employee of the defendant are material and competent and are an exception to the rule of hearsay evidence even when the employee is in court ready to testify, but it must be shown that the testimony is essential and relevant to the issue.</p> <p>Id. — Error—Appeal—Duty of Appellant. — Under section 142 of the Code of Civil Procedure, it is the duty of an appellant to show not only error, but that it was prejudicial.</p> <p>Id. — Ocular Inspection — Discretion of Court. — The refusal of the trial court to inspect the place of the accident is within its sound discretion.</p>

<p>Pleading — Amended Complaint — Motion to Strike Out — Demurrer.—A motion to strike out an amended complaint and for judgment dismissing the action on the ground that it was an exact reproduction of the original complaint, which was dismissed, and failed- to correct the errors or mistakes, is equivalent to a demurrer.</p> <p>Id. — Id.—Demurrer—Prescription—Misjoinder oe Parties.- — When the court sustains a demurrer on the ground of prescription of certain causes of action for annulment and misjoinder of parties and the amendment to the complaint only corrects the misjoinder of parties defendant, hut no fact is alleged to overcome the conclusion of the court that the cause of action had prescribed, the complaint will not be deemed to have been amended.</p> <p>Id. — Id.—Errors or Mistakes — Failure to Correct — Waiver.—Amending a pleading means to correct its errors or mistakes, so when this is not done it cannot be held that there is an amended pleading and the court will be justified in taking no notice of it or striking -it out and proceeding with the action as if the party had waived the right to amend.</p>

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

<p>Cancellation of Mortgage — Power of Attorney — Retroactive Effect — Ratification — Curable Defect. — In this appeal the registrar assigned as a curable defect the failure to show the character and powers of an attorney in fact to cancel a certain mortgage. In order to correct this defect, the appellant presented an instrument of ratification and power of attorney executed by the principal. The registrar held that the defect was not cured because the power of attorney presented was of a later date than the deed of cancellation and did not expressly ratify the cancellation of tho mortgage. In reversing the decision of the registrar it was held that although the power of attorney was of a later date than the deed of cancellation, the principal ratified the previous acts and contracts of the attorney in fact and gave retroactive effect to the authority conferred upon him and that the cancellation of the mortgage should have legal effect from the date thereof, without the necessity of a new instrument.</p>

<p>Pedestrians — Roads or Highways. — A pedestrian has a right to any unoccupied part of the road and ordinarily is not hound to keep a lookout to the rear, although his duty may he changed if he is warned or advised of the approach of a vehicle from behind.</p> <p>Evidence — Distance—Statement of Case — Doubt Against Defendant. — When a witness testifies that the distance at which the car stopped from the scene of the accident was equal to or greater than the length of the courtroom in whieh he was testifying, the court below can approximate that distance and if the statement of the case does not show the length of the room, any doubt must be considered against the defendant.</p> <p>Negligence — Degree of Negligence — Instructions.—In ease of criminal negligence the question of the degree of negligence is ordinarily left to a jury under proper instructions.</p> <p>Id. — Proximate Cause. — Multiplying instances of possible negligence does not relieve the Government from showing the proximate cause of the accident.</p> <p>Involuntary Homicide — Pedestrian—Gross Negligence — Caution and Circumspection. — According to the authorities any driver of a vehicle who attempts to pass pedestrians on the highway at a high rate of speed and without being sure that such pedestrians are conscious of the approach of the vehicle, is guilty of gross negligence. He is proceeding without due caution and circumspection. When a death is caused, reckless driving has always been punished by the law of homicide.</p> <p>Id. — Liability—Natural Consequences. — The law of homicide has always made a defendant responsible for the necessary and probable consequences of Ms act.</p> <p>New Trial — Newly Discovered Evidence — Diligence.—When a motion for a new trial is based on the offer of additional evidence of a crime which the defendant was bound to have known in advance, it cannot be considered as newly discovered evidence which the defendant eonld not have obtained by reasonable diligence.</p>

<p>INJUNCTION TO RECOVER POSSESSION OE REAL PROPERTY-COMPLAINT-FORCIBLE or Fraudulent Acts. — One of the essential allegations of a complaint in an action of injunction to recover the possession of real property, as authorized by Act No. 43 of March 13, 1913, is that the plaintiff has been deprived of the possession of his property by fraudulent or forcible acts; for if there were no deprivation of possession, a judgment to restore the plaintiff to possession could not be executed.</p> <p>Id. — Loss of Possession op Part of Property — Description of Property— Judgment. — When the possession of only a part of the property has been lost and not all of it, the part whose possession has been lost should be described in order that the plaintiff may be restored to possession if the judgment should be in his favor. The property or the part of it sought to be recovered .is what should be described in the complaint.</p> <p>Id. — Actual Deprivation of Property' — Intention.—The action authorized by Act No. 43 of March 13, 1913, lies only when there is an actual deprivation of possession and not when this has not been effected, although acts have been committed which show an intention to effect such deprivation, for the action lies only to recover the possession and not to retain the same against acts which threaten its loss.</p> <p>Id. — Entering Property — Gutting Down Trees — Disturbance of Possession— Damages. — The mere act of entering the property of another with cane-knives or even of cutting down some of the trees does not necessarily carry with it as a consequence the fact that the owner was deprived of the actual possession of the property or of a part of it. It would be an act of disturbance of possession or of damages, but not of deprivation of the actual possession of the property.</p>

<p>Damages — -Sale by Sample — Expert — Payment oe Purchase Price — NonPerformance oe Contract. — Article 327 of the Code of Commerce is inapplicable when there is no question about whether the purchaser may refuse to receive the goods contracted for on the ground that they are not like the sample, or of whether in case of refusal to receive them experts should be named to decide whether or not they should be received, but when the action is to recover damages for failure to comply with a voluntary condition agreed upon and accepted — that is, for failure to supply the goods to the purchaser in the quantity, quality and manner agreed upon, the purchaser having paid the purchase price in the belief that the vendor had complied with his obligation under the contract.</p> <p>Id. — Mercantile Contract — Good Faith — Intent oe Parties — Obligation.— Under article 57 of the Code of Commerce commercial contracts must be executed and complied with in good faith according to the terms in which they are made, without limiting the effects which are naturally derived from the manner in which the contractors may have explained their intentions and contracted their obligations.</p> <p>Id. — Non-Pereormance oe Contract by Yendor — Civil and Commercial Transactions. — If the vendor fails to live up to the .contract entered into with the vendee he is subject to the consequences of the non-performance — that is, the payment of an indemnity for the loss caused thereby, pursuant to section 1068 of the Civil Code, which is applicable both to civil and commercial transactions.</p>

<p>Appeal from the District Court of San Juan, Section 2, in an Action of Debt.</p> <p>MotioN for Change of Venue.</p> <p>The facts are stated in the opinion.</p>

<p>Record of Title — Accessory.—A building is regarded ás an accessory of the land; therefore when the land is recorded in the registry the building erected thereon should also be considered as recorded.</p> <p>Id. — Possessory Title Proceedings — New Contract. — When land is recorded it is not necessary to bring possessory title proceedings to record a building erected thereon, and the fact that the building is not recorded in favor of the grantor of the land is no ground for denying the admission to record of a new contract.</p> <p>Id. — Building Constructed on Recorded Land — Accessory — -Possession.-—■ When a building is constructed upon a lot which is recorded the building will be considered recorded as an aeeessofy thereof; therefore it is not necessary to record a building newly constructed on a lot already recorded or to prove its possession.</p> <p>Id. — Building Constructed on Recorded Land — Manner oe Recording — Public Instrument. — Although the recording of a building constructed on a lot which is already recorded is unnecessary, no objection can be made to such action on the part of an owner who after constructing a building on a lot which is recorded desires to record the building in his name, and the notarial act appropriate to such unilateral transaction is a publie instrument showing that the owner appeared before a notary and stated that he had had the building constructed on a lot described by him and desired it to be recorded in the registry.</p> <p>Id. — Sale—Previous Record. — In this ease the land was recorded and the owner sold it together with two houses thereon which he described in the deed of sale. The registrar refused to record the sale of the houses because they had not been previously recorded in the name of the vendor, and the court, pursuant to the principles previously stated, reversed the decision of the registrar.</p>

<p>Denial oe Servitude — Complaint—Joint Owners — Consent.—A complaint in an action of denial of a servitude is sufficient when the plaintiffs allege therein that they are the joint owners of the property and have not consented to the creation of a servitude thereon, for these are the essential allegations according to section 604 of the Civil Code.</p>

<p>Appeal from the District Court of San Juan, Section- 2, in a Prosecution for Involuntary Homicide.</p> <p>The facts are stated in the opinion.</p>

<p>Provisional Support — Father’s Financial Circumstances — Requirements of Son. — After considering the evidence in this case it was held that, in view of the good financial circumstances of the father, the allowance of sixty dollars monthly fixed for the support of his minor son is proportionate to the means of the giver and in accordance with the necessities of the recipient, pursuant to section 216 of the Civil Code.</p> <p>Id. — -Requisites for Application of Section 215 of Civil Code. — For the application of section 215 of the Civil Code the following requisites are necessary: (1) The obligation to support must devolve upon two or more persons; (2) the said persons must have means, for only thus can the amount be proportionate to their respective estates.</p> <p>Id. — Joint Obligation to Support — Basis- for Proportionment. — When the obligation to support rests upon two persons, one of whom has sufficient means and the other has no means, the performance' of the obligation devolves exclusively upon the former, as there is no basis'for proportioning the amount for support between the two according to their respective estates.</p> <p>Id. — Conjugal Partnership — Divorce—Father’s Obligation to Support. — The provision of subdivision 5 of section 1323 of the Civil Code is inapplicable to a case in which the father of the minor is living and has sufficient means to support the latter, for it cannot be construed in the sense that the conjugal partnership created by the second marriage of the mother is bound to support and educate the minor offspring of the former marriage which has been dissolved by virtue of a decree of divorce, inasmuch as such construction would be in conflict with section 176 of the Civil Code.</p> <p>Id.- — Attorney Fees. — Section 327 of the Code of Civil Procedure, as amended ■by the Act of March 12, 1908, provides that no attorney fees shall be allowed unless the amount in litigation exceeds five hundred dollars, and it does not in a suit to compel the defendant to pay one hundred dollars monthly as provisional support.</p> <p>Id. — Construction of Law. — Statutes allowing costs are not to be extended beyond tbeir literal meaning, but are to be construed strictly.</p>

<p>Appeal from a Decision of the Eegistrar of Property Denying Admission to Becorcl of Possessory Title Proceedings.</p> <p>The facts are stated in the opinion.</p>

<p>Bankruptcy — Insolvency—Preference.—According to section 67 of the Bankruptcy Act, any preference obtained by a creditor within the four months preceding the filing of the petition in bankruptcy, the debtor being insolvent, is null and void.</p> <p>Id. — Id.—Assiqnment for Benefit of Creditors. — Under section 3 of the Bankruptcy Act, as amended in 1903, insolvency is a prerequisite for the first throe acts of bankruptcy, but not for the fourth and fifth — that is, whon the debtor has made a general assignment for the benefit of his .creditors or admitted in writing his inability to pay his debts and his willingness to be adjudged a bankrupt for that reason.</p> <p>Id. — Id.—Under the Bankruptcy Act, with certain limitations, insolvency means excess of liabilities over assets.</p> <p>Id.- — Id.—Adjudication—Acts of Bankruptcy — Presumption—Parties.—It has been held generally by the courts that when a person has been adjudged a bankrupt for any of the first three acts specified in section 3, the insolvency ■ of the said bankrupt is conclusively presumed by reason of the adjudication, inasmuch as the creditors were given ample time to oppose his being declared a Bankrupt between the date of the petition and the adjudication. Likewise, it has generally been held that all creditors are presumed to be parties to the petition in bankruptcy.</p> <p>Id. — Id.—Lien—Adjudication.—A lien obtained in any suit or proceeding is dissolved by adjudication for any of the disjunctive propositions contained in section 67c, as amended by the acts of 1903 and 1910. It is enough if a lien is obtained and permitted while the defendant was insolvent and that its existence and enforcement would work a preference.</p> <p>Id. — Id.—Acts of Bankruptcy — Proof of Insolvency. — If the adjudication involves an act on the part of the debtor when insolvency is also an element, the adjudication binds all the creditors as to the fact of such insolvency; otherwise the insolvency must be proved.</p>

<p>Appeal from a Decision of the Registrar of Property Recording a Mortgage with a Curable Defect.</p> <p>The facts are stated in the opinion.</p>

<p>Third Persons — Fraud—Bes Judicata. — When a judgment affirmed on appeal decides only that the defendant is a third person and entitled to protection under the Mortgage Law without considering the alleged acts of fraud on his part, the mere offering in evidence in a subsequent suit of the judgment of the court below and the affirming judgment' does not show what were the issues at the first trial, and it is necessary to show that the issues were the same in both actions.</p>

<p>Appeal from the District Court of Myagüez in an Action of Ejectment and for Damages.</p> <p>Motion of the appellees to dismiss the appeal.</p> <p>Tlie facts are stated in the opinion.</p>

<p>Appeal from the District Court of Ponce in an Action for the Appointment of a Partitioner.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Guayama in an Action for the Annulment of Deeds and Contracts.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a Decision of the Registrar of Property Denying Admission to Record of a Deed of Ratification of Sale.</p> <p>The facts are stated in the opinion.</p>

<p>Civil Status — Spouse of Purchaser— Purchase Price — Conjugal Partnership — Presumption.—The fact tlvat at the time of the acquisition of the property the law did not require the notary to state in the deed the name of the spouse of the person acquiring the property, if married, hut only his civil status, cannot affect the rights of such spouse if the purchase money belonged to the conjugal partnership; for when the vendee is married at the time of the purchase it is presumed that the purchase price belongs to. the partnership unless the contrary is shown.</p> <p>Id. — Curable Defect — Prescription.—When it is only stated in the deed that tlie purchaser was married at the time of the acquisition of the property and the name of the spouse does not appear, a curable defect exists in a later contract involving the property. There is no presumption that a person now married to a certain person was married to the same person at a particular time in the past.</p>

<p>Mortgage — Summary Proceedings — Foreclosure—Sale oe Property. — According to the law and jurisprudence now in force, the recovery of a mortgage credit may be proseeuted by the summary proceeding of- the Mortgage Law and its Regulations, or in accordance with the provisions of the Code of: Civil Procedure, and in either case should be governed by the act approved March 9, 1905, by the foreclosure or sale of the mortgaged property.</p> <p>Execution — Repeal.—The Law of Civil Procedure which went into effect in this Island on January 18, 1886, was not repealed as to the part relating to the execution of judgments by General' Order No. 118 of August 15, 1899, but remained in force until replaced by the present code of July 1, 1904.</p> <p>Td. — Mortgage—Junior Mortgagees — Foreclosure—Public Sale. — According to the old Law of Civil Procedure and the Mortgage Law, junior mortgagees were notified of the foreclosure proceeding prosecuted' for the recovery of the credit of a senior mortgagee, and such notice should be given in the summary proceeding at present in force, as provided by articles 171 and 172 of the Regulations for the execution of the Mortgage Law, so that they may take part in the sale. If they do not attend, they cannot be heard to complain that they have been injured by the application of article 125 of the Mortgage Law.</p> <p>Id. — Junior Mortgagees — Notice oe Sale — Cancellation oe Mortgage — Due Process oe Law. — Although the Act of March 9, 1905, relating to judgments and the manner of satisfying them is silent as to junior mortgagees, if the ordinary procedure for the recovery of a mortgage credit is followed, its silence cannot be construed as authorizing compliance with article 125 of the Mortgage Law in regard to them if they have received no notice of the sale. They have a real right in the property to be sold and it is to their interest that the highest price be obtained. Previous notice is indispensable in order that the cancellation be made under due process of law.</p> <p>Id.— Previous Notice oe Sale — Junior Creditors — Cancellation oe Mortgage. — When the complaint is directed against the debtor only, previous notice of the sale to the junior mortgagees is sufficient for the cancellation of the subsequent mortgages. Article 125 of the Mortgage Law is construed in harmony with articles 152 and 171 of the' Regulations, and section 36 of the Code of Civil Procedure is applied.</p>

<p>Malicious Mischief — Malice—Trespassing Animals — Criminal Act. — Whatever may be the kind or degree of malice neeessary to., constitute the crime of malicious mischief under section 514 of the Penal Code, its existence may be negatived always by proper proof of other motives, and the motive with which a person kills or injures a trespassing animal is the test of the criminality of the act.</p> <p>Id. — Id.—Trespassing Animals. — A single and simple trespass of an animal, causing some slight damage to property, unaccompanied by any other act, is not of itself sufficient to negative a prima facie showing of malice.</p> <p>Id. — Trespassing Animals — Protection of Property. — When the evidence shows that the animals were constantly trespassing upon the property where they were finally killed; that they were destroying plants worth mueh more than the said animals; that they were driven out of one place only to enter immediately at another; that the owner of the annuals was repeatedly requested to remove them from the property and answered that they were not his and might be killed, and that the killing of the animals was necessary to protect the property, the crime of malieious mischief is not committed.</p> <p>Id. — Municipal Ordinance — Impounding Stray Animals — -Presumption—Judicial Notice. — When in a prosecution for the killing of an animal there is no intimation in the record that the question of whether the defendant should have captured and impounded the animal instead of killing it, in view of the existence of ordinances -in the municipalities providing for the impounding of stray animals and the punishment by fine of the owners thereof, was raised or considered by the court a quo, this court cannot presume the existence of such ordinances although the lower court may have taken judicial notice thereof at the trial.</p> <p>Id. — Malice—Orders op Employer. — Where tlie defendant killed an animal without malice and with no other motive than the protection of the property under his care, in compliance with the express orders of his employer given after every other reasonable means of protecting the growing crops had been exhausted without avail and' only when patience had ceased to be a virtue, he should be acquitted.</p>

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

<p>Election Law — Information—Registration—Residence.—Under section 162 of the Penal Code, an information is sufficient which charges that the defendant wilfully caused his name to he registered in the list of voters of the municipality knowing that he was not entitled to such registration beeause he had not resided there during the period prescribed by law — that is, for one year next preceding the date of the election.</p> <p>Id. — Registration—Qualified Voters. — -Only those who have a right to vote can register; therefore if a person registers knowing that he has no right to vote, he is guilty of the offense defined by section 162 of the Penal Code. The lists are called electoral lists and it was the intention of the Legislature that only the names of qualified voters should appear therein.</p>

<p>Plea of Guilty — Information—Demurrer—Appeal.—If tire faets alleged in an information do not constitute any offense, a plea of guilty upon arraignment and after a demurrer had teen overruled does not prevent the appellate court' from considering whether the information charges a crime and acquitting the defendant in ease it does not.</p> <p>Election Law — Eegistration.—As regards age, a person who is not qualified to vote' at the next election — that is, one who will not be twenty-one years of age at that time — is not entitled to register; and, on the other hand, a person who will be qualified .to. vote on the day of the next election has a right to register although he may not be twenty-one years of age at the time of registration.</p> <p>Id. — Information—Eegistration.—In order to charge the crime defined in section 162 of the Penal Code — namely, that the defendant registered without being entitled to do so because he was under age — -the information should allege further that he would be under twenty-one years of age at the time of the next election.</p> <p>Id. — Eegistration—Electoral Lists. — The electoral lists should contain only the names of electors who are qualified to vote.</p>

<p>Record of Title — Decision of Registrar. — A registrar of property is not authorized to refuse to record a document for the second time on grounds-different from those stated in the first decision, because it is the duty of the registrar to point out in one single decision all the legal reasons for the refusal to record.</p> <p>Id. — Reviewal of Instrument — Decision of Registrar. — A decision of a registrar refusing to admit an instrument to record and setting forth his reasons therefor is clearly a reviewal of the instrument.</p> <p>Id. — Id.—Return of Instrument Without Action. — When the registrar returns an instrument without taking any action regarding it — that is, without admitting or refusing to admit it to record — there is no reviewal of the-instrument.</p>

<p>Surety — Specific Guaranty — Agricultural Financing. — According to sections 1250 and 1278 of the Civil Code, a guaranty given by a surety for the payment of a specified amount to be advanced to his principal for agricultural purposes and also for the performance of other obligations undertaken in the contract, is limited to the money advanced for agricultural purposes and does not render the surety liable for sums in excess of that amount advanced to his principal for agricultural purposes.</p>

<p>Appeal from the District Court of Mayagüez in an Action of Nullity of Marriage and Divorce.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a Decision of the Registrar of Property Refusing to Convert a Cautionary Notice into a Record</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Humacao in a Prosecution for'Violation of Section 162 of the Penal Code;</p> <p>Motion by the. Appellee for Dismissal of the Appeal.</p> <p>The facts are stated in the opinion. '</p>

<p>Appeal from a Decision of the Registrar of Property Refusing to Record a Dominion Title.</p> <p>The facts are stated in the opinion.</p>

<p>Election Law — Supervisor oe Elections — Registration.—According to sections 13, 30, 31 and 32 of the Election Law, the supervisor of elections is especially authorized to conduct the elections under the direction of the Executive Council and exercises supervision over the lists of voters and subordinate officers, he being empowered to issue certificates of the registration of voters.</p> <p>Id. — Id.—Officer, oe Government — Judicial Notice. — In Porto Rico the supervisor of elections is one of the principal officers of the Government within the meaning of section 36 of the Law of Evidence and courts are required to take judicial notice of his accession to office, official signature and seal.</p>

<p>Mortgage — Power oe Attorney — Community Property — Conjugal Partnership.- — In order to sell or mortgage property belonging to the conjugal partnership the husband must have express power from his wife.</p> <p>Id. — Id.—Community Property — Consent oe Spouses. — The power of attorney in this ease having been given in 1897, or before the Spanish Civil Code had been amended by section 159 of the Revised Code to the effect that . the alienation or encumbrance of community realty without the consent of both spouses shall be null and void, it was held that the wife could not have intended at that time to confer upon her husband power to represent her in conveying or mortgaging the community property.</p>

<p>Appeal from the District Court of Humacao in a Prosecution for Violation of Section 162 of the Penal Code.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Appeal from the District Court of Mayagüez in an Action of Nullity.</p> <p>The faets are stated in the opinion.</p>

<p>Mandamus Directing the Judge of the District Court of San Juan, Section 2, to Dismiss a Prosecution.</p> <p>Tlie facts are stated, in the opinion.</p>

<p>Appeal from the District Court of San Juan, Section 1, in an Action of Intervention in Ownership of Real Property.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a Decision of the Registrar of Property Recording Dominion Title Proceedings with Curable Defect.</p> <p>The facts are stated in the opinion.</p>

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

<p>Registrars of Property- — Orders of Courts — Jurisdiction.—Registrars of property have authority to pass upon orders of courts presented to them to he recorded in the registry, hut such authority does not allow them to pass upon the intrinsic justice or injustice of the same. It is limited to an examination of the nature of the order, the action and the proceeding, and as to whether the court had jurisdiction.</p> <p>Id. — -Appeal—Suggested Question.- — -In an administrative appeal the supreme court will not consider any question suggested hy the record hut not passed upon hy the registrar.</p>

<p>Appeal from a Decision of the Eegistrar of Property ■’ Eefusing to Eecord a Deed of Sale.</p> <p>The facts are stated in the opinion.</p>

<p>Gift — Possession—Designation of Heirs — Fraud—Complaint.'—When a plaintiff alleges in Ms complaint that the former owner of a certain property gave it to Ms predecessor in interest and that his said predecessor and he have been in the quiet and peaceful possession thereof as owners for more than ten years; that the plaintiff is still in possession thereof, and that by means of a false and fraudulent designation of heirs the defendant 'caused the ownership of the said property to be recorded in his name in the registry of property, the said complaint alleges facts sufficient to constitute a cause of action.</p> <p>Id. — Prescription—Title.—When the real title asserted by a plaintiff is not one acquired by gift, but by prescription, it is not essential that the gift be a perfect one.</p> <p>Id. — Public Instrument — -Acceptance — Possession — Prescription.—Although a gift of real property may not be evidenced by a public instrument, as required by section 641 of the Civil Code, if the donee accepts it, enters into possession of the property donated as owner and continues in the public, peaceful and uninterrupted possession for a period of ten years, the failure to make the gift by public instrument is cured by prescription.</p> <p>Id. — Heirs.—A defendant who is not a lawful heir of the donor has no right to impugn a gift made by the latter.</p>

<p>Appeal from the District Court of Humacao in an Action of Divorce.</p> <p>Tbe facts are stated in the opinion,</p>

<p>Filiation — Natural Child — Certificate of Birth — Possession of Status of Filiation. — Section. 198 of the Bevised Civil Code, which provided that the filiation of children should be proved by the certificate of the birth issued by the civil registry, by the possession of the status of filiation or by any other legal means, had no wider scope than to establish the means by which acknowledgment could be proved.</p> <p>Id. — Id.—Acknowledgment—Legitimate Child. — An action of filiation is necessary when the status of natural child is not established by an act of acknowledgment made in a solemn and authentic manner, so that the acknowledged natural child may show his status as such in the same way as a legitimate child.</p> <p>Id. — Id.—Letter oe Acknowledgment — Act oe Acknowledgment — -Authentic Document. — Although a letter written by a putative father to the child calling him his son and authorizing him to use his surname is an act of acknowledgment and can be used as evidence in an action for acknowledgment, it is not a document executed in a solemn and authentic manner so as to relieve the child from bringing such action.</p> <p>Id. — Id. — Action to Recover Inheritance — Acknowledgment — Authentic Document. — When a plaintiff only brings an action to recover an inheritance, deeming an action for acknowledgment unnecessary, and fails to allege that he has been acknowledged in a solemn and authentic manner, he has no cause of action.</p> <p>Id. — Id.—Prescription.-—Although under article 137 of the Civil Code of 1889 a natural child born in the year 1881 or 1882 could bring an action of filiation during the life of his putative father, as that article was amended by section 199 of the Revised Code in the sense that such action can. be brought only within two years after the child becomes of age, or, if he had attained his majority in 1902, only within two years after the said code went into effect, he cannot in November, 1915, avail himself of the provisions of the law of March 9, 1911, to bring such action because it had already prescribed.</p>

<p>Information — • Felony — Misdemeanor. — When, an information for felony is quashed on motion of the fiscal a new information charging a misdemeanor ■ is not forbidden by section 452 of the Code of Criminal Procedure.</p> <p>Assault with Intent to Commit Murder — Aggravated Assault and Battery— Dismissal Before Beginning of Trial — Dormer Jeopardy. — Although' the crime of aggravated assault and battery, which is a misdemeanor, is necessarily included in the felony of assault with intent to commit murder, in order that the dismissal of an information charging the latter may be a bar to another prosecution for the former under section 169 of the Code of Criminal Procedure it is essential that the dismissal be ordered after the beginning of the trial for the felony; for a person is not placed in jeopardy for a crime until he has been put on trial before a court of jurisdiction on an information valid and sufficient in form and substance.</p>

<p>Voluntary Manslaughter — Pleading — Information — Amendment — Speedy Trial — Dismissal of Information. — An information charging voluntary manslaughter was filed within the time prescribed by section 448 of the Code of Criminal Procedure. On motion to amend made on the day set for the trial that information was dismissed and a new one filed. On the same day a motion to dismiss under said section was overruled and the case went to trial without further objection by the defendant. Held: That as the defendant was not held to answer for the crime for sixty days after leave to amend, the said section is not applicable; that the way to amend a pleading is by filing a new one, and there is no reason why an information should be excluded from this rule; that on the theory that the amended information was an entirely new one, the object of the said section was accomplished by the dismissal ofi the original one; that according to section 452 of the said code, the dismissal of the first information was no bar to the filing of the second.</p> <p>Id. — EVIDENCE—Dying Declaration — Res Gestíe — Weight op Proop — Rebuttal — Anticipation op Depense. — A dying declaration is part of the res gestee and should not be excluded merely because there is other direct evidence. Objection that the dying man could not have been of perfectly sound mind because there was testimony as to his feeble condition, goes to the weight of the proof and rests with the trial court. Objection that the dying declaration contained matter of rebuttal in anticipation of the defense, goes to its credibility and rests with the jury.</p> <p>Id. — Id.—Threat—Selp-depense—Rebuttal—Character op Victim. — A threat made by the victim against the defendant, but of which' the latter had no knowledge, could have aroused no fear in him to support a plea of self-defense. Evidence in rebuttal may be admitted to show the good character of the victim after it had been attacked.</p> <p>Id. — Id.—Instructions—Law op Plight — Selp-depense.—Instruction that a man on a highway is bound to flee from an aggressor if he can do so 'in safety is error. A man is not justified in seeking a quarrel, but when attacked at a place where he has a right to be, in a way that puts his life in imminent danger, he may stand his ground and take the life of the assailant if reasonably necessary.</p> <p>Id. — Instructions—Exception—Appeal.—The fact that the instructions as given were not excepted to and the court refused additional instructions because its rule required that the written instructions should be presented before the charge was begun, does not prevent this court from reviewing the instructions as given in order to ascertain whether any fundamental error was committed.</p>

<p>Public Health — Adulteration oe Milk — Evidence.—When milk is adulterated it is not necessary to prove that the person who sold, offered or kept it for sale in that condition knew that it was adulterated, for the law does not so require, and there is no need to call witnesses who saw the defendant adulterate it.</p> <p>Id. — Id.—Sealed Containers — Evidence.—When milk is shipped by the vendor to the vendee by railroad in sealed containers marked with pasteboard labels showing its origin and upon being opened is found to be diluted with water and there is no proof that the seals had been broken, it cannot be held that the milk shown to be adulterated was not the same milk sold as pure milk because it was not found in the possession of the vendor or any of' his employees.</p>

<p>Assault and Battery — Complaint—Prejudice.—A defendant is not prejudiced by being tried upon a complaint charging simple assault and battery when such facts were considered as constituting the crime of aggravated assault and battery, for the trial and judgment are based upon the facts alleged and not upon the classification of them by the complainant.</p> <p>Id. — Criminal Intent. — According to the Act of March 10, 1904, repealing section 237 of the Penal Code and defining and punishing simple assault, simple assault and battery, aggravated assault and aggravated assault and battery, the intent to cause injury is an essential element of the offense of assault and battery; but as intent is a state of the mind, it must be deduced from the acts committed, as provided by section 12 of the Penal Code.</p> <p>Id. — Criminal Intent — Presumption.—To show intent it is sufficient to prove that the injury was the result of the unlafwul act of the person, because the law presumes that a person intends the ordinary consequence of his voluntary act.</p> <p>Id. — Bicycle—Pedestrian.—When a person rides a bicycle at great speed through the streets of a town and as a consequence of his wilful and unlawful act runs over and causes bodily harm to a pedestrian, he is guilty of assault and battery.</p> <p>Id. — Criminal Intent. — A person who rides a vehicle through the streets of a town at such speed as to imperil the' safety of pedestrians cannot be heard to deny that he intended to cause bodily injury to any of them, although he may not have intended to injure a particular person.</p>

<p>Assault and Battery — Throwing Stones — Sling—Criminal Intent. — Hurling , stones at a person with a sling and causing him bodily injury constitutes the crime of assault and battery. The intent to cause injury is deduced from the act itself, for every person is presumed to know the natural and probable consequences of his acts.</p>

<p>Administration — Appointment op Administrator — Surviving Spouse — Preeerence — Construction op Law — Absence—-Widow.—Although the wording of section 31 of the Special Legal Proceedings Act is somewhat vague, it must he held that it gives the surviving spouse a preference regarding appointment as administrator, which preference is not only in harmony with the Spanish precedents, hut also with English and American jurisprudence as well as with the provisions of sections 94 and 932 of the Civil Code relating to the provisional measures to he taken in case of absence and to the precautions to he adopted when the widow is left pregnant.</p> <p>Id.- — Preference — Surviving Spouse — Relations with Other Heirs — Security- — Supervision.—The preference in favor of the surviving spouse is not so absolute that it should always prevail when there are powerful reasons which make it necessary to appoint another person as administrator; hut the mere probability of dissensions with the other heirs is not sufficient to exclude as administrator the surviving spouse whose capacity and integrity have been admitted and whose administration would be guaranteed also by the security to be given, the accounts to be rendered and the supervision of his acts by the court which appointed him.</p>

<p>Appeal from the District Court of Mayagüez in an Action for Judicial Administration.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Mayagüez in an Action for Damages.</p> <p>The facts are stated in tlie opinion.</p> <p>The appellant appeared pro se.</p>

<p>Lis Pendens Notice — Record of Notice — 'Construction oe Law — Erroneous Translation. — The English text of section 91 of the Code of Civil Procedure does not exact as a condition for recording a lis •pendens notice in the registry of property that the plaintiff or defendant, as the case may, be, prayed that he be adjudged the owner of the. property claimed, it being sufficient that the action affect the title or the right of possession of real property. The Spanish text is not a correct translation of the English text, which, being the original, must prevail.</p>

<p>Nuisance — -Annoyance—Peopebty Right. — To constitute a nuisance, there must ■ be á violation of a lawful right. A mere. annoyance without fault is not a nuisance.</p> <p>Id. — Damages—-Prescription.—Under sections 1869 and 1803> of the Revised Civil Code an action against a municipality for damages arising from the construction of an alleged nuisance, consisting of a sewer, retaining wall and embankment built in order to open and grade a street, prescribes in one year in the absence of proof of damages resulting from the continuing nuisance. .</p> <p>Action Ex Delicto — Damages.—In an action ex delicto for the reparation of an injury the damages are generally the gist of the wrong.</p>

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

<p>Appeal from the District 'Court of Humacao in a Prosecution for Violation of the Sanitary Regulations.</p> <p>The facts are stated in the opinion.</p>

<p>Public Health — Adulteramos of Milk — Information.—The'Act of March 10, 1910, amending section 3|37 of the Penal Code as amended in 1909, does not specify how milk may he adulterated or diluted, but provides that the adulteration or dilution consists in its not conforming to the standard; therefore the information need not allege the manner in which it was adulterated.</p> <p>Id. — Adulteration of Milk — Milk-stand—Presumption.—The mere fact of having a milk-stand open to the public1 for the sale of milk is sufficient to raise the presumption that the milk found there is intended for sale, because such is the object of milk-stands; therefore the fiscal was not required to prove that the milk was offered for sale.</p> <p>Id. — Adulterated Milk — Possession.—In the ease of People v. Andino, 21 P. R. R. 211, it was held that the proof of possession alone was not sufficient to establish the guilt of the accused, but that was because tire milk was received just at the moment when the sanitary inspector arrived and had just been emptied into the receptacle, there being no time to have offered the milk for sale.</p> <p>Id. — Adulterated Milk — Sample of Milk.- — The fact that the sanitary inspector did not deliver to the defendant a duplicate of the sample of the milk which he took to send to the laboratory for analysis does not excuse the offense of which the appellant was convicted, for it is not required by law.</p>

<p>Appeal from the District Court of G-uayama in a Prosecution for Incendiarism.</p> <p>The facts are slated in the opinion.</p>

<p>INFORMATION-MOTION TO QUASH-SPEEDY TRIAL-NONSUIT — RECONSIDERATION-Affidavit of Merits — Appeal.—Whe'n a motion to quash an information on the ground that it was not filed within the time prescribed by subdivision 1 of section 448 of the Code of Criminal Procedure has been overruled and the defendant, in moving for a nonsuit after the prosecution had rested, fails to ask for a reconsideration of the ruling on his former motion or to call the attention of the court to the real question involved by reason of the discrepancy between the. facts as represented in the affidavits of the fiscal and the facts as disclosed by the evidence introduced at the trial, he cannot raise the said question for the first time on appeal.</p> <p>Law of Case — Question of Law — Appeal.—When a question of law has been decided by the appellate court in the original appeal, it is the duty of the trial court to apply the law in the manner indicated to the facts established by the evidence introduced at the trial, omitting, but not necessarily renouncing, any private opinion it may have as to. the soundness of the doctrine laid down.</p> <p>Internal Revenue Law — Trap, Instigation, Inducement or Invitation — Connivance. — There is no trap, instigation, 'inducement, or invitation on the part of the Government or any of its agents when, as in this case, an internal-revenue agent, in accordance with -instructions from his superior officers, pretends to acquiesce in a scheme which a person on his own initiative suggested and repeatedly proposed to him to release alcohol from a distillery in violation of the law with the connivance of the said agent.</p> <p>Id. — Id.—Evidence.—The furnishing of a desired, solicited or neeessary opportunity and the facilitating of the commission of an offense designed and, in faet, consummated by the defendant, have been held by the courts to» be a -fair and reasonable means of securing evidence for his prosecution and conviction.</p> <p>Id. — Extraction of Aloohol — Excise Tax. — The offense penalized by sections 3 and 6 of the Act of March 9, 1905, amending Chapter II, Title IX, of the Political Code, as amended March 9, 1911, and March 13, 1913, does not consist in the unlawful removal of padlocks from the warehouse and tanks of the distillery, but in the failure to pay the taxes upon distilled spirits prior to their removal from the factory.</p>