Volume 3 — Puerto Rico Federal Reports

Complaint for libel. 1. A demurrer to the complaint in an action for libel does not admit the truth of the innuendoes contained in the complaint. 2. The court will determine the question as to whether the alleged statement is or is not libelous, without reference to the innuendoes. 3.

1. A special or silent partner of a firm that borrows money, and who gave individual security for said loan, is a debtor as much as the general partners. 2. A writing, although in the form of a public instrument, intended as additional security, but which is not such in terms, can be explained in equity as between the original parties and others not bona fide holders for value. 3.

1. An order of court refusing to allow plaintiff to file his case because certain prerequisites had not been complied with is not an adjudication of the rights of the parties. 2. The statute of limitation does not run in favor of one maintaining a nuisance.

Edible fish sounds should be classified, for customs purposes, under ¶ 23, tariff act of 1897, and not under ¶ 496 of § 2 of said law.

A verdict valuing land sought to be condemned at $10,000 will be set aside as excessive when the proof showed it to be worth only $70.

1. An action for breach of promise of marriage can be brought under § 1803 of the Civil Code of Porto Rico. 2. Laws not manifestly unconstitutional or inconsistent with our system of government, left by Spain in Porto Rico, and not since repealed, may nevertheless not be enforceable.

1. The act of Congress of March 2, 1895 (28 Stat. at L. 963, chap. 191, U. S. Comp. Stat. 1901, p. 3178), is applicable to Porto Rico. 2. It is a violation of said act to import lottery tickets from Cuba into Porto Rico for the purposes forbidden by the act. 3. In construing penal statutes the courts will endeavor to ascertain and apply the legislative intent.

1. In Porto Rieo an action for injuries causing death survives. 2. The wife and heirs of deceased cannot now maintain an action for damages against the person who killed deceased before the American invasion of Porto Rico, defendant not having been tried or convicted of the crime.

In a proper case the action may be dismissed as to a person not an indispensable party, and prosecuted as to the remaining defendants.

1. In case of a doubt as to its jurisdiction, no Federal question being involved, the court, in an equity case, even after answer filed, may order that all proceedings be set aside and a plea to the jurisdiction filed and submitted. 2. The court will, at any time, take notice of its lack of jurisdiction, whether counsel call its attention to the point or do .not do so.

<p>Plea and demurrer overruled.</p>

1. Equity will not relieve one guilty of gross delay. 2. It is an established rule with courts of equity, independent of any statute of limitations, that they will not entertain stale demands.

A consent decree will not, on motion of one party, be set aside, over the objection of the other, if the same appears to be reasonable and a proper settlement of the litigated matters.

The court will compel a plaintiff in ejectment to reform his formal complaint so as to show whether the allegations of the answer are true or not, with a view of passing on the defense of res judicata.

A verdict for $76.60 was returned in a ease claiming $2,000, and defendant moved for a rule that (under U. S. Rev. Stat. § 968, U. S. Comp. Stat. 1901, p. 702) the plaintiff pay costs. Such a motion is directed to the sound discretion of the court, and in this case is denied.

1. The Sherman anti-trust act of July 2, 1890 (26 Stat at L. 209, chap-647, IT. S. Comp. Stat. 1901, p. 3200), is applicable to Porto Rico and can be enforced by the district court of the United States for Porto Rico. 2. A steamship company may, as part of its through freightage line, legally contract with one company of lightermen to the exclusion of others. 3.

1. The father of a minor who brings suit in the name of the minor as his next friend, for injuries sustained, and recovers, is estopped from afterward suing in his own name for damages sustained by him, based on lack of support, medical attention, etc. 2. Sections 1803 of the Civil Code and 60 and 61 of the Code of Civil Procedure construed.

1. A possessory title in favor of one not in possession, and who has never been in possession, will not prevail against a dominion title in favor of one who has been in possession under it for more than ten years. 2. A possessory title is nothing more than a notice of adverse claim of title. 3. A plaintiff in ejectment must recover on the strength of his own title.

1. The district court of the United Staes for Porto Rico will not entertain a suit in ejectment founded upon the alleged illegality of a dominion title when it appears that a suit is pending in the local court to set aside said title, the latter suit being by defendants in this court against the vendors of the plaintiff in this action. 2.

A motion to tax the costs against the defendant will be overruled in a case in which the jury allowed defendant’s counterclaim and gave judgment in favor of plaintiff for the balance.

1. Private persons may maintain an action of ejectment against a military, naval, or marine commander in possession of land claimed by plaintiffs. 3. In such an action defendants may, as a complete defense, set up title in the United States government.

’ 1. A request for counsel’s advice as to bow to commit a fraud is not privileged. 2. The admissions of one against tbe interest of persons who afterward became his heirs are not admissible against such heirs. 3. Statements by the widow of deceased, intended to impugn the bona fides of transactions to which her husband and other persons, since dead, were parties, are inadmissible. 4.

A foreign guardian cannot represent a nonresident party in a suit in the district court of the United States for Porto Rico until he has been appointed such by a court of the island.

1. The court will, on demurrer, strike from an answer in an action tor libel, a denial that the words are actionable per se, when, in the opinion of the court, such words are grossly libelous. 2. A bill of particulars may be ordered in a libel suit.

<p>A motion for a new trial which raises no new question will be denied.</p>

1. A bill 'in tbe nature of a creditors’ bill to set aside certain mortgages and conveyances and to subject tbe lands to an execution issued in a 'law action must show specifically when tbe abstract of judgment was filed with the registrar and what it contained. 2. The filing of such an abstract could not give a lien on real estate not standing on the record in the name of the defendant in judgment.

A cross bill setting up tbe claim that a certain lease had become’merged! in a later partnership agreement between the parties will be allowed to be filed.

A bill in equity charging fraud and' seeking to follow the proceeds and , have a lien declared and foreclosed on real estate alleged to have been purchased with the proceeds of other property fraudulently acquired does not fall within the rule for substitute service on a nonresident defendant, established by § 1 of the act of Congress of 1887, 1888.

A Spaniard born in the Peninsula, residing in Porto Rico when the treaty of peace was proclaimed, but who failed to preserve his Spanish nationality in the mode required by article 9 of the treaty of Paris, adopted the “nationality” of Porto Rico and became a Porto Rican.

1. Estimated future profits from carrying passengers in an automobile are too remote to be recoverable in an action for damages from carelessness, of employees in charge of an electric car in striking and overturning-such automobile, on the assumption that said accident would create-among prospective passengers the fear that the chauffeur was incompetent. 2.

Persons dealing with promoters of a proposed corporation may, after the same is formed, and has, or has not, ratified the actions of-the promoters, elect to pursue their remedy either against the corporation, as such, or against the promoters, as individuals, provided always that there was no prior agreement that they should look to the corporation only.

The district court of the United States for Porto Rico has no jurisdictions of a case in which Porto Rican citizens are on both sides of the controversy.

1. A owned two tracts, one mortgaged to B and the other to C. He defaulted as to B, who began foreclosure proceedings. Held: 2. That he could not prove attorneys’ fees as an element of damages. 3. That the profits A might have made on his proposed sale to 0 were too remote. 4.

1. A declaration of intention to retain Spanish citizenship, made January 18th, 1900, before a municipal court in Porto Rico, is a sufficient compliance with the requirements of article 9 of the treaty of Paris. 2. The court has jurisdiction of a cause between a Spanish plaintiff and Porto Rican defendants.

1. A limited partner who interferes unduly in the affairs of the firm will, as to creditors, be considered a general partner. 2. In such a case, he must file schedules of his private property. 3.

1. When the pleadings in an equity cause are mixed and full of interlinea-tions, the court may order them to be rewritten. 2. The practice of sending issues of law to a master discountenanced.

■Statement: M died intestate in 1892, leaving, as part of his estate, a mortgage; in 1892 B was declared his heir; in 1894 A sued B, claiming also to be an heir, and caused a cautionary notice of the… Held: That J, being an innocent purchaser for value from S, who had, according to the books of the registry, a clear title when he sold, is the owner, free from the lien of the mortgage. ‘.2. That A was negligent in not noting his appeal in the registry. 3.

1. Demurrers to the complaint that the same does not allege due care and lack of contributory negligence will be overruled, and the parties will be left to their proof on those points. 2. The right to recover for injuries sustained by a minor is primarily with the minor. 3. The parents’ right of action is based on the loss of services. 4. The mother only has a right of action if the father is dead. 5.

1. If the court is convinced that the verdict is contrary to the weight of the evidence, although there may have been some conflict of testimony, it is his duty to set it aside. 2. When the evidence is such that the jury, on the questions of negligence and contributory negligence, could well have found either way, the court will not set aside the verdict and grant a new trial.

1. Tbe proceeds of a promissory note payable to order and indorsed before maturity, but not in good faith by either the payee or indorser, will, in a suit to settle the right thereto, be held to belong to the payee, defendant in judgment, and will be applied to the payment of a prior judgment against him in favor of another party to the interpleader proceedings. 2.

A motion to dismiss, based upon the ground that the ease involves substantially the same facts as another ease between different parties, already dismissed, will not be granted if it appears on the face of the record that a different case might be made on the trial.

<p>The filing of an amended answer on a rule to file a bill of particulars, even though crudely drawn, but which gives plaintiff the information desired, will be considered a sufficient compliance with the rule.</p>

The court, when it is necessary to an intelligent ruling on exceptions and pleas to a complaint, may require an answer setting up the facts of the ease, and may overrule the exceptions and pleas pro forma and compel such answer to the merits.

Demurrers to a complaint, that the same sets out no cause of action, and is ambiguous, unintelligible, and uncertain, will be overruled, and the plaintiff ordered to file a bill of particulars.

1. Statements by a juror after a verdict and the discharge of the jury, as to what evidence the jury based its verdict on, are inadmissible to support a motion for a new trial. 2. A verdict not shown to be the result of mistake, passion, or prejudice will not be set aside simply because the court is of a different opinion. 3.

1. Ordinarily courts of equity will not decree the specific performance of contracts relating to chattels only,if but an’’.exception is where greater injury would result than could be recoveredfin damaged. 2. Such a ease is one founded on a contract to deliver to 4, sugar factory cane growing on a nearby tract, the loss of which would cause the mill to close down. 3.

1. Fact case. Compromise by bankrupt and trustee with one claiming a, part of the estate approved. 2. The money produced by said settlement must be paid to the trustee, for the benefit of the creditors.

1. As the Porto Rican act of March 8, 1906, conferred upon the municipalities of Porto Rico general corporate powers, including perpetual succession, a seal, etc., a damage suit lies against such bodies for injuries caused by their negligence. 2. Section 32 of the organic act construed as giving such a right of action.

1. A “venta eon pacto de retro,” provided for by Porto Rican law, is a conditional sale, and not a mortgage. 2. Plaintiff, not having complied with the conditions of repurchase, cannot have the contract decreed to be a mortgage. 3. Plaintiff, having stood by and even taken part in a sale of the land by his vendee to an innocent third party, is' estopped.

The jury having found defendant guilty, and the court having fixed a day for pronouncing judgment, the defendant failed to appear. Held: that as the bond provided that the accused should appear whenever called upon to answer the indictment, and should abide by the orders of the court until final adjudication, his sureties were bound to pay the amount of the bond.

Statement: Le Compte owned two Louses. He had no children, but was married to Mercedes, who had a child (Maria del Carmen) by a former husband. Held: That the wife did not have the fee in the second house. 2. That the estate she took was one for life, with a vested remainder over to Aurelia, the niece. 3. That Aurelia’s death before that of the wife did not give the latter a better title. 4. That Aurelia’s heirs became the owners upon the death of Le Compte’s wife. 5.

1. The court has power, during the term, to order the plaintiff in judgment to remit the amount found by the verdict, not justified by the proof. 2. This is so although execution had issued and had been satisfied, the money paid to plaintiff, and no motion for new trial filed within the time required by rule of court.

1. In an ejectment suit all the co-owners of undivided interests are indispensable parties defendant. 2. If the jurisdiction of the Federal court is doubtful, the decision should be against entertaining the case. 3. If there are citizens of Porto Rico on both sides of the controversy, and it is not one involving a Federal question, the court has no jurisdiction.

1. There haying been a total loss of the vessel and cargo, the principle of general average has no application. 2. Article 765, Porto Rican Code of Commerce, is not mandatory, and the failure of the owner to give the notice thereby required will not exempt the underwriters from liability. 3. If additional loss results by reason of said failure, the owner will be responsible to the extent thereof, 4.

1. A certificate by the commissioner of immigration, San Juan, Porto Rico, to the effect that a person arrived in Porto Rico on a given date, and was recorded as a Spaniard, is not competent evidence of citizenship. *2. The court has no jurisdiction of a controversy between Porto Ricans on both sides, no Federal question being involved.

Statement: Insured, having defaulted in the payment of his premiums, was advised by the company, by letters, of the amount of the payment which it would be necessary for'… Held: That the company, by its general course of action, had waived the forfeiture of the policy for nonpayment of the premiums when due, according to the conditions of the policy. 2. That, the agents having given to the insured an unconditional receipt for the payment, the company was bound thereby. 3.

In an action sounding in tort, which, in effect, is an action for libel and slander, plaintiff will be ordered to furnish a bill of particulars showing places, dates, and names of persons in connection with the allegations of the complaint.

1. The act of Congress of June 11, 1906, “Employers’ liability act,” is, under recent decisions by the Supreme Court, unconstitutional and void, and not in force in Porto Rico. 2. In actions between employer and employee for damages for personal injuries, the Porto Rican act of March 1, 1902, is exclusive, and §§ 1903 and 1904 of the Civil Code have no application to such cases. 3.

1. An employee who files suit against his employer three days after the accident, but afterwards dismisses his action without prejudice and dies, has sufficiently complied with the requirements of the Porto Rican employers’ liability act of March 1, 1902, as to notice. 2.

1. The principles regarding the marshaling of securities and assets are in force in Porto Rico. 2. The owners of second mortgages, who take the verbal promise of their debtor that their mortgages will be discharged by the owners of the first mortgage after foreclosure and sale, but who have no such promise from the latter, cannot thereafter claim from the first ihortgagees. 3.

1. It is not negligence per se for a municipality to erect its sidewalks so that they are a foot or more above the drain or gutter. 2. A motion for a new trial will be denied, when based on newly-discovered evidence, when the court can see that, even if it were adduced, the verdict would probably not be changed.

1. Under the authority of the joint resolution of Congress dated April 22, 1898 (30 Stat. at L. 739, U. S. Comp. Stat. 1901, p. 2790), and the President’s proclamation of October 14, 1905 (34 Stat. at L. 3183), the court will, in a civil action, pending final decision, enjoin the shipping of cartridges from Porto Rico to Santo Domingo. 2. Such an order will issue although the resolution provides no penalty for its violation.

<p>1. The local employers’ liability act, while exclusive as to the cases covered by Rev. Stat. (1902) P. R. § 327, does not apply to the case of an employee injured by the carelessness of a fellow employee in the management of an automobile.</p> <p>2. Such an action is governed by the provisions of §§ 1803, 1804, Civil Code (1902) of Porto Rico; or perhaps by § 61 of the Code of Civil Procedure of Porto Rico of 1904.</p>

1, When the facts show that the government did not, and did not intend to, grant a franchise to operate a steam ferry, the utmost of the concession to the person claiming such a franchise is a permit, revocable by the executive council whenever the licensee fails to keep the terms of the license. 2. Franchises are never presumed, and doubts must be resolved against the; persons setting up their existence. 3.

1. The making of a foreign consul a party defendant, when the facts alleged show him to be not a necessary party, will not, of itself, confer jurisdiction on the Federal court. 2. Neither will the mere averment of a constitutional question. 3. This court has no jurisdiction of a case which is, in effect, a probate proceeding to administer the estate of a deceased person, and this is so even when the parties are of diverse citizenship. 4.

On Rehearing. 1. The fact that the court did not give defendant an opportunity to present other testimony, merely cumulative in character, is not ground' for a new trial. 2. That defendant did not have the benefit of certain testimony, when, as a matter of fact, it did not offer to introduce it, is not a ground for a new trial. 3.

<p>The defendant company being indebted to plaintiffs, tbe parties entered into contracts giving plaintiffs the right to receive 20 per cent of the sugars produced, and apply the proceeds of the same in payment of their debt. Defendant thereafter suspended operations, and plaintiffs applied to have receivers appointed with power to borrow money to keep the factory going.</p> <p>Held, that pending the repayment of the money borrowed, plaintiffs cannot ask to have their contracts enforced.</p>

1. A mortgage for “82.84 cuerdas, more or less,” includes an excess of 25.87 cuerdas wlien the facts show such to have been the intention of the parties. 2. Actual boundaries on the ground will control recitals as to quantity. 3. A possessory title to part of the land in a stranger, dated after the mortgage, cannot defeat the foreclosure, and will be canceled of record.

1. When the facts, though contradictory, sustain the verdict and there was no material error in the charge, a motion for a new trial will be denied. ■ 2. A verdict of $9,000 for a double fracture of the thigh bone that resulted in shortening the leg about two inches, and other injuries, not considered excessive.

Indictment for mailing nonmailable matter. 1. Section 3893, U. S. Rev. Stat.- (U. S. Comp. Stat. 1901, p. 2658), construed. ■2. No language, however coarse or vulgar, is within the provisions of the section forbidding the use of the mails, unless it is also obscene, lewd, and lascivious, and tends to impurity in a sexual sense. 3. The section is directed at the effect of the language employed.

1. Under the Porto Rican Code defendants must plead within ten days, from the day they are summoned. 2. This time cannot be extended by moving to make other persons parties. defendant. 3. A defendant who wishes other persons made parties defendant should. move therefor promptly.

<p>Bill to quiet title.</p> <p>Bill for review.</p> <p>When, after exceptions are overruled and defendant ordered to answer, he again pleads the same matter previously raised by his exceptions, the court will strike the plea and order a decree pro confesso unless the defendant answers within a time certain.</p>

<p>1. The court has no power to grant a supersedeas, unless the appeal is perfected within sixty days, Sundays excluded.</p>

J. The mode of service on foreign corporations provided by §§ 66 and 67 of the Civil Code of Porto Eico is not exclusive. 2. Service may also be made as provided by § 93 of the Code of Civil Procedure. 3. The act of Congress of 1901 (31 Stat. at L. 953, chap. 812) so enlarged the jurisdiction of the court that a citizen and resident of New York may sue a Maine corporation with an agent in Porto Eico, in this court.

<p>1. The court has jurisdiction of a case brought by an American citizen against a Spanish one, on the ground of diversity of citizenship.</p> <p>2. In such a ease defendant has not, under article 11 of the treaty of peace, a right to object to the jurisdiction of the court.</p>

1. The district court of the United States for Porto Rico has no jurisdiction of probate matters. 2. An administratrix of an estate, unclosed in the insular court, cannot come into the Federal court to settle matters collateral to the administration in the insular court.

When the court deems the verdict in a libel suit to he excessive, it has the power to make an order that a new trial will be granted unless the plaintiff in judgment remits part of the judgment.

<p>Question of boundary. The preponderance of evidence being in favor of plaintiff, judgment will be so entered.</p>