Volume 5 — Puerto Rico Federal Reports

<p>1. The effort of complainants, in a suit in which they induced the court to appoint a receiver and create large debts,' to have their own claim preferred as against the bondholders, when such effort is .only made after final decree, will not be considered. Their remedy is an appeal from the final decree.</p> <p>2. Qucere: Whether chapters 2 and 3 of Glassification of Credits, §§ 1822 to 1826 inclusive, of the Civil Code of Porto Rico of 1902, can, as a whole, be said to be in force in the face of the national bankruptcy act of 1898.</p> <p>3. Contracts under which money is advanced to sugar centrals, and the repayment of which money is to be made by the lender’s retaining a portion of the proceeds of the monthly deliveries of sugar, to be made by the mill to him, no matter what the parties designate such contracts in the instruments, are not true “contratos de refacción” in the sense of subdivision 3, § 1824, of the Civil Code of Porto Rico of 1902; and if the sugar central becomes insolvent, and goes into the hands of a receiver before the money is all repaid, the holders of such contracts, especially when not annotated in the registry, are general creditors only, and are not entitled to any preference.</p> <p>4. Where a mortgage or trust instrument given to secure an issue of bonds covers not only the property then possessed and specifically described, but all the property to be acquired for the purposes intended, on foreclosure of the trust instrument, the bondholders are entitled to have the same foreclosed as to all the property thus acquired, as against mere general creditors.</p> <p>6. Notwithstanding that, under the provisions of § 3 of the joint resolution of Congress of May 1, 1900, a corporation in Porto Rico may not be entitled to own or control moré than 500 acres of land, still the matter of so holding such excess of land is for the government itself to correct, in a proper proceeding where it is in issue, and it is not for the general creditors of the insolvent concern to raise the question collaterally in a suit to foreclose the trust instrument given to secure bonds.</p>

<p>1. So-called “contratos de refacción” dated as long ago as 1862 to 1865, are stale, and will not, at the present time, be enforced by a court of equity when no excuse is shown for such unusual delay in and about the foreclosure thereof.</p> <p>2. Statutes of limitation are not necessarily followed by courts of equity, because there can be gross laches even within the term of a lengthy statute of limitation.</p> <p>3. Conscience, good faith, and reasonable diligence alone call into action the powers of a court of equity. McKnight v. Tyler, 1 How. 161, 11 L. ed. 86.</p>

<p>1. Twelve years after the making of a conveyance, a son secured letters of guardianship of the person of his father, and filed a bill in equity to set aside the conveyance on the ground that his father is and always was semi-idiotic and mentally irresponsible, and that the purchaser had full knowledge of this, and secured the land for an inadequate consideration, etc. Held: That the proofs did not show that the father was of such a weak mind at the time of the making of the deed as that it can be said that he did not exercise his free will, nor can it be said that the consideration paid was unreasonably inadequate, or that the purchaser had any reason to believe that he was not dealing with a free agent, and hence the bill was dismissed.</p> <p>2. A court of equity will only interfere to set aside such a conveyance when the application is made seasonably.</p> <p>3. In order to cause a will or deed to be set aside on the ground of fraud or undue influence, it must be established to the satisfaction of the court that the party making it had no free will, but stood in vinculis.</p> <p>4. In equity each case to set aside a deed for the incapacity of the grantor at the time of the execution must be decided on its own merits, without regard to previous decisions in cases differing in the facts.</p> <p>5. Where the alleged weak-minded person is shown not to have been regarded by his neighbors differently from other members of the community, and where he is shown to have been a volunteer soldier, to .have married and raised a family, to have served as city alderman, to have testified in courts, and to have brought and defended suits, and, generally, to have conducted himself as any other citizen would, his children will not be heard, twelve years afterwards, to set aside a conveyance which he made for a reasonable consideration.</p> <p>6. Where the alleged evidence of medical -experts as to the sanity of a person, on opposite sides of the case, is irreconcilably conflicting, the court will discard the whole of such alleged evidence, and resort to the record evidence and written instruments in the cause, and its own observation of the subject, and its examination of him in open court,</p> <p>Note. — Deeds; fraud. — As to fraud and undue influence in avoidance of deed or will, see note to Harding v. Handy, 6 L. ed. U. S. 429.</p> <p>As to when deed set aside for weakness of mind or imbecility of grantor, see note to Allore v. Jewell, 24 L. ed. U. S. 260. in order to determine what his mental condition was at the time lie is alleged to have made the conveyance in question, some twelve years previously.</p>

<p>1. In a jurisdiction such as Porto Rico is, where neither of the national political parties exists as such, it is not possible for this court in selecting jurors to strictly comply with the letter of the act of Congress of June 30, 1879 (21 Stat. at L. 43, chap. 52), requiring a clerk and jury commissioner to be of opposite political faith; and a substantial compliance therewith is all that is required. Especially is this so, because of the court’s not being a court of the United States in the constitutional sense, and because of the act of Congress of June 25th, 1906 (34 Stat. at L. 466, chap. 3542), fixing the qualifications of jurors for service in this court.</p> <p>2. Munich v. ValdSs, 4 Porto Rico Fed. Rep. 99, holding that this court has no power, except possibly in very exceptional eases, to deny the right to a writ of error against its judgment, affirmed.</p>

<p>1. It is doubtful whether, under the laws of Porto Rico, §§ 567 et seq., Compiled Laws 1902, an action for libel and slander of a corporation will lie, as that law appears to apply only to human beings.</p> <p>2. When a cause is fairly submitted to the jury, and the only error they commit is in returning a verdict for the defendant, instead of finding a verdict for the plaintiff in nominal damages, a new trial ought not to be granted.</p>

<p>Where an illegally constituted grand jury returns an alleged indictment under which a defendant was arrested and gave bail, and afterwards, for his failure to appear, the recognizance was forfeited. Held: On a motion to quash the execution against the bondsmen, that, as there never had been any legal indictment presented, the court was without jurisdiction to entertain the cause or to accept bail, and hence no forfeiture of the recognizance could be entered.</p>

<p>A person who advances money to be used to pay the wages of employees of a concern that afterwards goes into the hands of a receiver is not, in the absence of any contract taking it out of the ordinary run of debts, entitled to have his claim for such advances preferred under the receivership as against the rights of the bondholders who are foreclosing their mortgage.</p> <p>Note. — Receivers.—As to priority of claims against property in hands of receiver over recorded liens, see note to First Nat. Bank v. Cook, 2 L.R.A. (N.S.) 1012.</p>

<p>A mortgagee mistook Ms remedy and foreclosed on the property described in his mortgage, bought it in at the sale, and went into possession of it, and so remained for several years while the cause was appealed. The supreme court reversed and remanded the case, with instructions that the lower court dismiss it. The mortgagee, while still remaining in possession of the property, then proceeded and foreclosed his mortgage in a proper manner. The mortgagor filed a cross bill and set up the receipt by the mortgagee of the Tents and profits of the property in the meantime, as a proper item to reduce the debt. Held: That this could be done and was a proper matter upon which to grant affirmative relief, and the main debt was reduced as per findings of the court in accordance therewith. See the ease for the facts and the manner in which this result was accomplished.</p>

<p>1. It is alleged in a bill in equity that the governor, treasurer, and auditor of Porto Rico are misconstruing the law, and wrongfully paying out the money of the island under the act of Congress of July 15, 1909, known as the “Olmsted law,” and the prayer is for an injunction to prevent them from so doing. The cause was removed to this court by the respondents, and, on a motion to remand on the ground that the matter in dispute involves no money value, or no value which, exclusive of interest and costs, exceeds the sum or value of $1,000. Held: That, on the contrary, the entire annual budget of the island is in controversy, and the court will take judicial notice of the fact that this is a sum amounting to several millions of dollars.</p> <p>2. It is probably true, under § 3 of the act of Congress of March 2d, 1901 (31 Stat. at L. 953, chap. 812), increasing the jurisdiction of the district court of the United States for Porto Rico, especially in, the light of the language of Mr. Justice White in Garrozi v. Dastas, 204 U. S. 73, 51 L. ed. 376, 27 Sup. Ct. Rep. 224, that the fact that a law of the United States is being construed will in, and of, itself be sufficient, irrespective of the amount involved, to confer jurisdiction upon this court, and entitle at least the defendant or the respondent to remove the case here if the same is originally brought in an insular court.</p>

<p>Bill for Injunction.</p>

<p>Where an agent sues Ms principals for commissions upon certain sales, and the contract between the parties is such that as matter of law the plaintiff is entitled to the whole of every commission, or to none of it, it is not within the power of the jury to divide one of the commissions just because the defendants may have taken some part in the sale. In such a case a new trial will be granted unless the plaintiff remits as to the portion of such commission which it is manifest the jury found in his favor.</p>

<p>In the year 1900, plaintiff, a citizen of France, was the owner of about 4,000 cuerdas of land in Porto Rico. In that year the insular government through its then treasurer, not believing that plaintiff’s title was good, caused his tenants to register the property in their own names and to also return their several parcels for taxation in their individual names. Plaintiff then came to Porto Rico and objected to this action of the insular government. After considerable trouble he was advised by the insular officials to file a suit against the treasurer or the people of Porto Rico, to quiet his title, which he did. After years of hard-fought litigation, which the insular authorities vigorously defended, even to the supreme court of the island, he finally recovered his land. Then he sued the insular government for the losses in the way of rents and profits which had accrued to aim in the meantime. Held: That it was too late under all the circumstances, for the insular government to withdraw its consent to be sued, and that he could recover, but the matter as to how the judgment should be paid is left to the future action of the insular legislative assembly or of Congress.</p>

<p>1. When a sugar mill in Porto Rico contracts to grind a planter’s cane for several crops, or “zafras,” beginning from the 31st day of December, and nothing is said about when the grinding of any particular crop is to end, evidence will be received as to what the custom of the country, in the particular section referred to, is as to what months are included within such a “zafra,” or grinding season.</p> <p>2. Contracts must receive a reasonable construction in the light of surrounding circumstances, and in the absence of particular stipulations the parties must be held to have had in contemplation only those risks and delays which reasonable men ought to have had in mind at the time of entering into the contract.</p> <p>3. Section 1254 of the Civil Code of 1902, of Porto Rico, embodies a rule similar to a well-known common-law rule that “the uses or customs of the country shall be taken into consideration in interpreting ambiguities in contracts, supplying in the same the omission of stipulations which are usually included.”</p> <p>4. When a “colono,” or planter, is bound by the terms of his contract to deliver his cane to be ground to a particular sugar mill, and the same is ripe and ready to be ground, the mill is bound to receive and grind the same at a time, and in a manner, that will not unreasonably damage the planter by permitting it, through delay, to become overripe or its subsequent “ratoons,” or sprouts, to rot, and in default of so doing the mill will be held liable for the loss.</p> <p>5. As to whether or not the sugar mill failed to seasonably grind the planter’s cane, and as to the extent of the damage, if any, because of such fact, is matter for the jury.</p>

<p>1. Porto Rico is to all intents and purposes a territory of tlie United States, although “not a territory incorporated into the United States.” It is quasi sovereign in character, and, as it in a large measure originates and changes its own laws, it possesses the same sovereign attributes as other territories and quasi sovereignties, and therefore cannot be sued without its consent.</p> <p>2. Section 7 of the organic act (Foraker law) of Porto Rico, providing that certain classes of persons wko continue to reside in the island “. . . shall constitute a body politic under the name of the People of Porto Rico, with governmental powers as hereinafter conferred, and with power to sue and be sued as such” [31 Stat. at L. 79, chap. 191], is intended merely to give a political status to the people of the island, and does not take away any of the usual sovereign attributes from the government thus created, such as exemption from suit, save with its own consent.</p> <p>3. The question whether a government has permitted itself to be sued cannot always be raised by demurrer. In many cases it may be necessary to call for an answer, or hear the proofs, before it can be determined whether the facts bring the case within the terms of the statute that permits the government to be sued.</p> <p>Note. — State.—As to suits against state and United States, see notes to Beers v. Arkansas, 15 L. ed. U. S. 991, and Hans v. Louisiana, 33 L. ed. U. S. 842.</p>

<p>1. A complainant filed a bill against three respondents to foreclose a mortgage against the mortgagor and his meantime mortgagees. Several years afterwards, so as to save the jurisdiction, the bill was dismissed as to all save the original mortgagor. In the meantime, because of the failure of complainant to file a notice of Us pendens or annotate the pendency of the suit in the registry of property, the submortgagee secured the cancelation of complainant’s lien, foreclosed his mortgage in an insular court, took possession of the property, and has been improving it for several years and may have disposed of it. Held: That because of complainant’s delay, the staleness of the demand, the negligence in not filing notice of Us pendens, and the knowledge complainant had that the submortgagee is, and always was, the real party in interest, will preclude the granting of any relief, and the bill will be dismissed.</p> <p>2. Where courts are of concurrent jurisdiction the one which first takes possession of the res is entitled to hold it as against tlie other.</p> <p>3. A tribunal where the real parfy in interest can be sued is the proper forum for a complainant.</p> <p>4. A decree to be entered nunc pro tunc on a pro confesso as of a date nearly three years ago before the death of a mortgagor, so as to avoid the necessity for reviving the suit against his heirs, will not be granted, especially when it appears that such deceased mortgagor was not at the time of his death the real party in interest, and when, because of complainant’s negligence in failing to file a notice of Us pendens, such real party in interest has in the meantime foreclosed upon the property in question. To grant such a decree would be ’but to bring courts of concurrent Jurisdiction into unseemly conflict, and result in circuity of action.</p>

<p>1. Where respondent has been for several years managing and in possession of plantations owned jointly with complainants, and in the accounting endeavors to show that complainants are indebted to him for the running expenses of the plantations over and above the value of the products thereof, the burden is upon respondent to show by a preponderance of the evidence that the conducting of such properties did in fact result in a loss. In the absence of such satisfactory showing nothing will be allowed on that account, even though the court does not find that respondent has been guilty of actual fraud.</p> <p>2. Where, through a series of years of legal controversy, both complainants and respondents at different times have been guilty of negligence and wrong that has resulted in loss and damage to the opposite party, a court of equity will consider such action in equalizing and balancing the rights and equities of the parties in a final accounting. .</p> <p>3. See a case where the court balances the equities of the parties and settles controversies that had continued for years.</p>

<p>1. Scrap tobacco consisting of warehouse or storehouse scrap or sweepings, , but which can be cleaned and utilized to make a cheap grade of stogies or cigarettes, is more properly dutiable at fifty-five cents per pound under paragraph 215 of the tariff act of July 24th 1897, as tobacco “unmanufactured, not especially provided for,” than at ten per centum ad valorem under paragraph 463 of the same act as “waste not specially provided for.”</p> <p>2. Such an importation is still tobacco, and nothing but tobacco, and the fact that it has dirt mixed with it does not change its character.</p> <p>3. In such case the ruling of the Supreme Court of the United States in Seeberger v. Castro, 153 U. S. 32, 38 L. ed. 624, 14 Sup. Ct. Rep. 766, is controlling.</p>

<p>1. The insular government of Porto Rico is without power to tax a dredge, scows, tug-boat, etc., belonging to a citizen of a state of the Union, who has no domicil in Porto Rico, and who temporarily brings such property into the bay of San Juan without landing the same, to execute a dredging contract in the area of the bay for the national government, that is wholly paid for by it. The situs of such property for purposes of taxation is not within the taxing jurisdiction of the insular authorities of Porto Rico.</p> <p>Note. — Taxation; situs of ‘property for purposes of. — Eor various phases of this question and the presentation of authorities relating thereto, see the following editorial notes: Situs, for taxation, of debts evidenced by notes and mortgages, note to Boyd v. Selma, 16 L.R.A. 729; situs, for taxation, of debts evidenced by notes or mortgages held by agent residing in different state from principal, note to New Orleans v. Stempel, 44 L. ed. U. S. 174; situs, for taxation, of tangible personal property of domestic corporations, note to Teagan Transp. Co. v. Board of Assessors, 69 L.R.A. 431; when debt may have situs for the purpose of taxation apart from domicil of creditor, notes to Monongahela River Consol. Coal & Coke Co. v. Board of Assessors, 2 L.R.A. (N.S.) 637; Johnson County v. Hewitt, 14 L.R.A. (N.S.) 493; local situs within the state of tangible property of nonresident for the purposes of local taxation, note to Eoff v. Kennefiek, 7 L.R.A. (N.S.) 704; as to what is home port of vessel for purposes of taxation, note to Olson v. San Francisco, 2 L.R.A. (N.S.) 197, 1196 Appx.; as to where ships are taxable, note to Johnson v. De Bary-Baya Merchants’ Line, 37 L.R.A. 518.</p> <p>2. The power of taxation is exercised upon the assumption of an equivalent, rendered in the protection of the property and person of the taxpayer, and if such equivalent cannot possibly be rendered because the property taxed is wholly beyond the jurisdiction of the taxing power, the taxation thereof amounts to the taking of property without due process of law.</p> <p>3. In Porto Rico the navigable waters of the areas of harbors, bays, inlets, and rivers, and the submerged lands underlying the same are national property, and such submerged lands are not the property of the local government, as is the ease in the several states of the Union.</p>

<p>1. A chattel mortgage as such is unknown to the laws of Porto Rico.</p> <p>2. A corporation conducting a sugar factory, becoming involved, borrowed money, and, because of the lack of a chattel mortgage law in Porto Rico, gave what was in terms an outright bill of sale of its lease rights, machinery, and chattels to the lender who immediately gave to the vendor a, “Venta con pacto de retro,” or a conditional sale of the same property, and it then elected the lender its president and he went into possession of, and took charge of the plant with a view to repaying himself as per the terms of this conditional sale. The venture proved unprofitable and no payment could be made. These instruments, or conveyances, between the parties, were not recorded anywhere, and the general creditors had no knowledge of them. Finally a general creditor brought suit and attached the corporation’s interest in, and obtained a lien on the plant. Then the lender of the money attempted to take possession of the entire concern under his bill of sale. Held: That, no matter what the parties called it, the facts showed the transaction between them to be the borrowing of money on the plant, and the giving of the same as security therefor, and held further, that this amounted to an equitable mortgage or lien that the lender was entitled to foreclose, but held further, that his rights were junior to those of creditors who secured attachments or execution liens on the property before the lender took possession thereof.</p> <p>3. The law favors the diligent, and where a lender of money fails to place the instruments that evidence the loan, on record, or fails to take possession of the property he buys, but permits the former owner to still appear to his creditors as owning the property, such lender is estopped, and attaching or execution creditors who anticipated him in time in getting their liens against the property, take precedence.</p> <p>4. Where a concern has been in the hands of a receiver for more than a year, and the further holding of the property is resulting in loss to all concerned, and the issues are made up sufficiently for the court to see the exact contentions of the parties, it can, in the interest of justice, proceed with a trial on the merits, and need not delay to take depositions of witnesses whose testimony it can plainly see would be ineffectual.</p>

<p>1. A censo redimible, or fee-farm or ground rent, that was good against the Spanish government previous to the date of the treaty of Paris, is good against the government of the United States since that date, in favor of the holder of the land described therein.</p> <p>2. There is nothing in or about such a censo redimible, as known to the civil law, especially when the same is against the national government, that renders it invalid as a perpetuity, and, in any event, if the government requires the ground in question, it can expropriate the rights of the payor of the censo therein.</p> <p>3. Where the Spanish government in Porto Rico sold land á censo at public sale, the public advertisement of the sale and the bid of the purchaser, together with the confirmation of the sale and the receiving of annual canons thereafter, are a sufficient written contract between the parties to comply with the requirement of the Spanish Code that censos redimibles must always originate in a written instrument.</p> <p>4. Qucere and not decided: Whether a censo redimible between private parties is obnoxious to the laws of the United States or of Porto Rico, as a unilateral perpetuity.</p> <p>5. The fact that the legal title to land is inscribed in the name of a plaintiff in ejectment is not sufficient, as and of itself, to entitle him to a judgment, as he must also be entitled to the possession of the land; and a defendant having the equitable title, and being entitled to the possession, can defeat the cause of action.</p>

<p>.1.■ As,a.general rule, the trustee of an estate in bankruptcy is the proper person to prosecute or oppose all claims in favor of or against the ■ estate in his charge; but:</p> <p>2. Under § 7 of the bankruptcy act of July 1, 1898, it is undoubtedly the duty of the bankrupt himself to prevent excessive or false claims being proved against his estate, but the proper procedure, if such approval has taken place, is to request the trustee, who represents all the creditors, to move for a reconsideration of the same.</p> <p>3. In case of the wrongful refusal of the trustee to move for such reconsideration of such claims, the bankrupt can apply to the referee for an order against him, to show cause in the premises, and can appeal to the court from the refusal of the referee to grant such order, the same as appeals can be requested to be certified as to other matters.</p>

<p>A mother of a minor, who sues for his personal injury, as his next friend, is not required to negative the existence of, or account for the minor’s father not suing in accordance with the provisions of § 60 of the Code of Civil Procedure of 1901 of Porto Rico, because the suit is by and for the minor himself, through such next' friend, and is not in any sense by or for the parent, 'as Contemplated under said section. Such a complaint is good on demurrer.</p>

<p>1. Courts of the United States have no jurisdiction in matters that are strictly probate in character. Amsterdam v. Puente, 3 Porto Rico Fed. Rep. 447, followed.</p> <p>2. Inasmuch as the jurisdiction of the courts of the United States is derived from the Federal Constitution and statutes, in so far as controversies between citizens of different states arise which are within the established equity jurisdiction of the Federal courts, which is like unto the High Court of Chancery in England at the time of the adoption of the judiciary act of 1789, the jurisdiction may be exercised, and is not subject to limitations or restraint by state legislation establishing courts of probate, and giving them jurisdiction over similar matters.</p> <p>8. Federal courts have uniformly maintained their Tight as courts of chancery to exercise original jurisdiction when the proper diversity of citizenship exists, in favor of heirs, to establish their claim and have a proper execution of the trust as to them. Waterman v. Canal-Louisiana Bank & T. Co. 215 U. S. 33, 54 L. ed. —, 30 Sup. Ct. Rep. 10, followed.</p>

<p>Under § 67c of the bankruptcy act of 1898, all attachments obtained against the property of the bankrupt within four months previous to the date of the filing of his petition, when the creditor had knowledge of the insolvent condition of the bankrupt, are released by the filing of the petition, and the creditor entitled to no preference.</p>

<p>1. Where parties enter into a contract to cultivate a rented plantation for a specified number of years on shares, one of the parties cannot arbitrarily break the contract and exclude the other from the plantation before the expiration of the time limit, without paying full damages for so doing.</p> <p>2. Offers to compromise a difference before litigation, when not accepted, are not binding thereafter upon the party making the offer.</p>

<p>1. In an action for negligence causing personal injuries resulting in death, where the evidence shows that the defendant cannot be charged with malice, only compensatory damages can be recovered, and the court should instruct the jury against awarding “smart money” or punitive damages to any extent.</p> <p>2. In a suit- by the wife and children of a deceased for negligence that resulted in the death, and where no' malice occurred in or about the negligence, compensation is all that can be recovered; but in estimating the damages, the jury may take into consideration the earning capacity of the deceased, his age and probable .duration of life, the ages of the minor children and the time that has to run before they will respectively become self-supporting, and the loss of the society of the deceased to the wife and children; but the latter item cannot be estimated alone, but may be considered when estimating the damages generally.</p> <p>3. Courts should be careful to instruct juries that plaintiffs should not be permitted to gain pecuniarily from an unfortunate occurrence, and that they should be compensated for their actual and reasonable loss only.</p> <p>4. Where deceased was loading cane cars with cane for a cane grower, on a spur of track built by the defendant out from its main line for such purpose, the defendant owed a duty to the persons so engaged in loading such cane, not to expose them to unusual risks or dangers; and the persons so loading such ears had a right to presume that it would do so; and the railroad company, in such case, if deceased is without negligence on his part, is liable for the acts of its agent in leaving a switch open, whereby a passing train runs in on the spur and collides with the ears, killing deceased.</p> <p>5. It is fundamental in law that no matter how negligent one person may be, if the probable victim of that negligence has, after seeing the occurrence, the last clear chance to avoid it, and negligently fails to do so, then such person is guilty of contributory negligence, and cannot recover.</p> <p>6. Where an employee of a defendant railroad left a switch open, and a passing train, though the train men noticed such fact, failed to stop in time to prevent the accident because of the breaking of a coupling pin in the train, the leaving of the switch open is the proximate cause of-the injury, and not the breaking of the pin. .</p>

<p>1. A crop or harvest year, even if that should be more than twelve months, and not a calendar year, is meant by a contract between the owner of a plantation and a manager who is to be paid chiefly by a share of the profits and in part by monthly advances of salary to be charged against the profits, but providing that “if, during the first year, there should be no profits,” the proprietor will not have to make any advances for future years.</p> <p>2. If either party to a contract misrepresents the facts and receives the other, the one who is deceived is entitled to end the contract for that reason.</p> <p>3. One whose misrepresentation or deceit entitles the other party to end a contract which gave to each party an interest or share in the profits of the enterprise is not entitled to any recovery for such termination of the contract, if his interest or right thereby lost does not exceed the damage which the other sustained because of his deceit.</p> <p>4. The incompetence and inexperience of one who made a contract for a term of years to manage a plantation in the raising of pineapples, but represented himself to be competent and experienced in such business, is sufficient to justify the proprietor in discharging him and ending the contract.</p> <p>[Headnotes by editor.]</p>

<p>1. Under an indictment brought under § 3893 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 2658), for mailing matter alleged to be obscene, lewd, and lascivious, Held that the evidence was insufficient as to the first, third, and fourth counts, and the jury were instructed to find the defendant not guilty as to those counts, and the question was submitted to them as to the guilt or innocence of the defendant under the second count.</p> <p>2. Under authority of Swearingen v. United States, 16.1 U. S. 446, 40 L. ed. 765, 16 Sup. Ct, Rep. 562, Held that matter which is not obscene, lewd, or lascivious in the sense of sexual impurity, but is merely vulgar and filthy, and as to the party'it is directed at, even libelous, is not within the purview of § 3893.</p> <p>3. Where a cartoon and the printed matter connected with it are said to refer to, or call to mind, a story said to be well known in the community, which the evidence tends to show is sometimes told and understood in a decent way,’ but generally as a vulgar, filthy, lewd, obscene, and lascivious story, Held that it is for the jury to say whether defendant so intended the story in question, and whether it was, in fact, under all the circumstances, so understood by those into whose hands the publication or cartoon was liable to fall. Such determination is a question of fact, and not one of law.</p> <p>4. Lése-majesté laws are unknown to the jurisprudence of the United States.</p>

<p>1. Under §§ 1387 et seq. of the Civil Code of Porto Eieo of 1902, it appears that as to the sale of personal property the well-known common-law doctrine of caveat emptor does not obtain in Porto Rico, and the warranty that goes against hidden defects enables a purchaser, in the absence of any stipulation to the contrary, to rescind the contract within six months.</p> <p>2. See a case where the jury held, under the instructions of the court, on the facts that the test made of the plant and machinery at the time of . the sale was a waiver of the statutory warranty.</p>

<p>ActioN roR Personal Injuries.</p>

<p>Action foe Personal Injuries.</p>

<p>1. Where a railroad company having the power of eminent domain takes possession of a piece of ground for its right of way, with the knowledge or consent of the owner, the subsequent vendees of the land take it subject to the burden of the railroad, and to the right to payment from the railroad if it entered under an agreement, or to damages if the entry was unauthorized.</p> <p>2. If the owner of land, knowing that a railroad company has taken possession of it without complying with expropriation or other laws, remains inactive and permits the railroad to expend large sums of money in and about the work on it, he is estopped thereafter from maintaining trespass or ejectment, and is relegated to a suit for damages only. Roberts v. Northern P. R. Co. 158 U. S. 1, 39 L. ed. 873, 15 Sup. Ct. Rep. 756, followed.</p> <p>3. Where a railroad company takes possession of a plaintiff’s land for its right of way with the latter’s knowledge or consent, and such owner of the land continues making demands for the value against the railroad company year after year, and the railroad company does not do anything to expropriate the land and change the registry title, and does not actually repudiate the owner’s claim for the value of the land, the claim is not barred by the statute of limitations.</p>

<p>Suit on Insueance Policy.</p>

<p>1. In an action for personal injuries, brought under the national employer’s liability act of April 22, 1908, the certificate of a proper probate court that the plaintiffs are the sole heirs of the deceased is sufficient to entitle them to sue without having a personal representative appointed under the act referred to.</p> <p>2. Under the act of Congress in question, the damages that can be recovered are compensatory merely, and when a son, who was over twenty-one years of age at the time of the accident that resulted in the death, sues as a plaintiff, the burden is upon him to show that he was dependent upon the deceased for a livelihood, and he can recover only to the extent he was so dependent.</p> <p>3. Qucere, and not finally decided because, although the court instructed on it, he afterwards expressed grave doubt as to whether the acts of Congress regarding safety appliances on railroads are in force in Porto Rico, even by the terms of the national employer’s liability act of April 22, 1908, or otherwise, because the original safety appliance act only refers to interstate commerce.</p> <p>4. Under the national employers’ liability act contributory negligence does not defeat the right of action, but only reduces the amount of damages which may be recovered.</p> <p>5. When a railroad company buys an engine, car, or other implement, or piece of machinery from a reputable dealer in such articles, and tests them, and puts them in use upon its railroad, and from time to time makes reasonably careful inspection thereof, such as is commensurate with 'the dangerous character of the machine, or of the work being done, then, if an accident occurs because of a latent defect contained in the wheels or other parts of such implements or machinery, and not discoverable by such reasonably careful inspection, and the same results in injury or death of an employee, the occurrence is an unavoidable accident, and .the railroad company is not responsible therefor.</p>

<p>1. Plaintiff was an expert erector of sugar milling machinery. He was sent from New Orleans to Caguas, Porto Rico, hy the manufacturer of such machinery, in response to the request of the defendant, and was engaged in erecting machinery sold by his principal to the defendant, although the defendant paid him his actual wages for the work. He made a trip on a freight automobile from Caguas to San Juan, and by reason, as it is alleged, of the intoxication of the motorman, on the return trip was severely injured. The evidence was conflicting as to whether he made the trip to San Juan at the request of, and in the interest of the defendant, or whether he came of his own motion for his own purposes. Held: That it was imaterial whether he was working for his principal in New Orleans or the defendant in Porto Rico, or both, as the fellow-servant rule could not apply under the circumstances.</p> <p>2. Whether plaintiff was in the employ of the defendant at the time of the accident, or a mere licensee on one of its automobiles, he could not recover for his injuries if he continued to ride on the machine after plainly seeing .the intoxicated condition of the motorman, and after he was a witness to the continued drinking of intoxicating liquors along the road by the latter, and of his consequent mismanagement of the machine. In such ease, if plaintiff continued on the machine, having had plenty of opportunity to get down from the same, he assumed the risk, and could not recover from the defendant.</p> <p>3. If plaintiff was in the employ of the defendant on the trip in question. at its request, then it owed him a duty not to expose him to unusual risk or danger, and to employ competent servants or agents to conduct the machine, and, in the absence of negligence on the part of plaintiff, he can recover for injuries resulting as a consequence of such negligence of the defendant.</p> <p>4. If plaintiff was a mere licensee on the machine in question, and his injury was -the result of his own contributory negligence and assumption of risk, then defendant owed him no duty, and the fact that it procured a surgeon to attend him, who wrongly set the bones of his leg so that the same had to be rebroken and reset many days later, does not render it liable for such action of the surgeon. Per contra, if plaintiff was at the time in the service of the defendant, it owed him a duty not to expose him to unusual risks of dangers, or negligently employ an unskilful surgeon to attend him.</p>

<p>1. The old Spanish system of carrying on criminal prosecutions and a civil suit for damages at the same time has been completely abolished in Porto Rico. Espino v. Martinez, 3 Porto Rico Fed. Rep. 59 approved.</p> <p>2. Section 192 of the Civil Code of 1902 of Porto Rico does not preserve the Spanish system of carrying on a criminal prosecution and a civil suit for damages jointly, and the only effect such section has is to give a single woman or a widow a separate^civil action for the crime of rape perpetrated upon her.</p> <p>3. A complaint in a civil suit for damages for a rape committed upon her, brought by an eighteen-year-old girl, suing through her brother and next friend, which does not allege that the defendant has been prosecuted and convicted of the crime, is good on demurrer.</p>

<p>1. In personal injury suits, the burden is upon the plaintiff to show the negligence of the defendant, and that he is himself free from contributory negligence.</p> <p>2. While it is the duty of railroad companies not to expose the servants of others loading freight upon cars on a spur or side track to unusual risks or dangers, still those servants and the shippers must exercise reasonable care and keep a reasonable lookout for their own safety.</p> <p>3. One who is put in a position of danger by the negligence of another is not guilty of contributory negligence if, while in such dangerous position, in an effort to escape therefrom, he does something which may not have been the best thing for him to do at the time. In such cases the same amount of care is not required of a plaintiff as would be the case were he not in an imminently dangerous position.</p> <p>4. In cases of personal injury by a railroad accident, under the general damage act, §§ 1803 and 1804 of the Civil Code of Porto Rico of 1902, where there is no malice in or about the occurrence, compensatory damages are all that can be recovered, and the measure of the same is the extent of the injury done and its character, whether permanent or temporary, the amount of suffering he endured or may have to endure during life, if it is permanent, and the effect it has upon his earning capacity, the amount of time lost by reason thereof, and the ccst of the sickness for physicians, drugs, medicines, and surgical treatment, if any.</p>

<p>1. An indictment under § 2865, U. S. Rev. Stat. (U. S. Comp. Stat. 1901, p. 1905), -which sufficiently describes the offense in the words of the statute, is not bad on demurrer, because it goes further and states unnecessary things, because the same can be treated as surplusage.</p> <p>2. An indictment for smuggling or clandestinely introducing into the United States, goods, wares, and merchandise, is not bad on demurrer because it alleges that the name of the vessel or vessels in which the goods were brought to the country, and the name of the country or countries from which the same were imported is to the grand jurors unknown.</p>

<p>1. Matter published regarding another that is libelous per se is presumed to be false, and .the defendant is presumed to have published the same maliciously, and juries can inflict punitive damages against a defendant on account thereof without any proof of special damages in the premises.</p> <p>2. A communication that is libelous per se, that is prompted by a duty due to the public, even though the duty does not amount to a legal obligation, is nevertheless qualifiedly privileged, even though it is only a social or moral duty, when the defendant acts in good faith in pursuance thereof.</p> <p>3. Where one physician is in charge of a hospital sustained by philanthropic people belonging largely to one particular church denomination, but that also receives subscriptions from the public generally for the use of the institution, it is a quasi public institution, and physicians and all other citizens of a community have an interest in the same being conducted in a proper way, and along liberal lines, and a communication from an outside physician to the board of supervisors, even though it contains matter that is libelous per se as to the physician in charge, is qualifledly privileged, if the matter contained therein is true and the same was written without malice and for a good purpose.</p> <p>4. Where matter affecting a physician in his professional capacity, written to a board of supervisors over him, is held to be libelous per se, the truth of the statements contained therein may be given in evidence, with -a view to establishing qualified privilege in the writer thereof, and it is for the jury to say whether the same was written without malice and with good motives.</p> <p>5. Justification of a charge that is libelous must be as broad as the charge itself.</p>

<p>1. On a motion for a new trial on account of errors alleged to have been committed by the court, where the court is satisfied that if any error was committed it was against the opposite party, who is not complaining, and where the court cannot say that there is reasonable ground to believe that the verdict would be different if the motion were granted, it should be denied.</p> <p>2. Where, on the facts developed during a trial, the jury would have been justified in finding entirely in favor of the defendant, but instead found in favor of the plaintiff for a much less sum than sued for, and the court is of opinion that there is no reasonable ground to believe that another jury would find in favor of the plaintiff for any larger amount, and no newly discovered evidence or other reason is urged as a ground for a new trial, the motion should be denied.</p>

<p>The pendency of a suit at law, brought by a creditor of an estate, in an insular court, against transferees of some of the property of an estate, and against some of the heirs thereof, for the purpose of having the property subjected to the payment of his claim, cannot be made the foundation of a plea of lis pendens on the equity side of- this court, to a suit between the heirs and such transferees. Such suit is not by the same complainants, and the end to- be attained is not the same.</p>

<p>1. Where complainants in a bill in equity which seeks to have a title held by another decreed to be in trust for complainants’ benefit, with the right in them to pay a debt and redeem the same, are charged with the burden of showing the existence of the trust relation.</p> <p>2. Where the proofs show that, instead of the title having been taken in trust by the respondents, it was in fact purchased for themselves, but a right given to complainants to repurchase within a specified time for a fixed sum, compliance with such conditions within the time is a condition precedent to complainants’ right to the property.</p> <p>3. Where a complainant fails to avail himself of the privilege to purchase property within a specified time for a fixed price, and instead takes a lease of the premises, stating that the title by which respondents hold the land is absolute, and negativing any idea of a trust or loan connected therewith, he is estopped from thereafter attempting to' show that the transaction is a loan between the parties.</p> <p>4. The doctrine that in Porto Rico a venta con pacto de retro is a oon- ■ ditional sale, and not a mortgage, reaffirmed, following Rivera v. Puente, 3 Porto Rico Red. Rep. 293.</p>

<p>Under the law of Porto Rico, no recovery can be had by any collateral relative, such as an aunt, for negligence resulting in the death of a minor when the suit 'is not against a master or employer. Such minor was under no obligation to support an aunt.</p> <p>Note. — Damages.—As to damages recoverable by collateral kindred for negligent killing of their relative, see note to Rhoads v. Chicago & A. R. Co. 11 L.R.A. (N.S.) 623.</p>

<p>1. Where the proofs show that a transfer of property was made by a bankrupt more than four months previous to his voluntary petition in bankruptcy, and that the same was made for a valuable consideration and in good faith, in the regular course of business, no recovery can be had by his trustee.</p> <p>2. The burden in such case is upon the trustee to show the lack of consideration, and that the property in truth and in fact still belongs to the bankrupt.</p>

<p>1. The act of Congress (the original national employers’ liability act) of June 11, 1906, 34 Stat. at L. 232, chap. 3073, U. S. Comp. Stat. Supp. 1909, p. 1148, as -well as the act of Congress (the second national employers’ liability act) of April 22, 1908, 35 Stat. at L. 65, chap. 149, ü. S. Comp. Stat. Supp. 1909, p. 1171, are both in force in Porto Rico, the first being superseded by the second as to "common carriers by railroad.” Colón v. Ponce & G. R. Co. 3 Porto Rico Ped. Rep. 367, disapproved, and Cortejo v. American R. Co. 2 Porto Rico Fed. Rep. 389, followed.</p> <p>2. It has been repeatedly held that the words “railroad” and “railway” are used interchangeably and regarded as synonymous, and would be held to apply to both steam railroads and street railroads, unless there appears from the title of the act, its purpose, or context, something to indicate that a particular kind of road is intended. Philadelphia v. Philadelphia Traction Co. 206 Pa. 35, 55 Atl. 762; 33 Cye. Law & Proc. pp. 33, 34.</p> <p>3. Only in cases where the party for whose benefit recovery is had, under the national employers’ liability act, is the next of kin, is it required that such person must be dependent upon such employee.</p> <p>4. Such a suit must be brought by the personal representative of the deceased.</p>

<p>A motion for a new trial should be denied where the arguments made thereon fail to convince the court in a case tried by itself, without the intervention of a jury, that it committed error in its findings of fact and law.</p>

<p>Where a suit in equity is pending to cancel the registry of certain deeds that are alleged to cast a cloud upon complainants’ title to land which has been recovered in ejectment by respondent, it is proper for the court to order the issue raised by a demurrer to the bill to remain in abeyance until the suit at law involving the title to the same land between the same parties has been passed upon by'the Supreme Court of the United States, in which the case is pending on writ of error.</p>

<p>A motion for a new trial that is based upon alleged errors of law only, should be denied where the court is satisfied that, if it committed any error, it was against the party in whose favor the verdict was returned.</p>

<p>1. Defendant employed deceased, who was an ignorant laborer, to look after and care for a powerful electric motor erected in a small pump house on its plantation. Certain dangerous cogwheels of this machinery were guarded by a metal semicircular -wheel cover that fitted down over them. On the day of the accident one of defendant’s superintendents came to the pump house witli two or three mechanics, and, in order to repair these wheels, removed this guard or cover, and left the building without replacing the same, although the help called his attention to the fact, and requested him to do so. Within an hour the man in charge of the place wa found dead in the narrow space between the cogwheels and the wall of the building, his body being terribly mangled and the teeth of the wheels being smeared with his blood, flesh, and bones. Held: That defendant was guilty of negligence in not furnishing deceased a safe place in which to work; that deceased did not accept this unusual'risk; and. that it was for the jury to say whether deceased was guilty of any contributory negligence in the premises.</p> <p>Note. — Master and servant. — As to different forms of statement of the general rule with respect to the master’s duty as to places and appliances furnished to servant, see note to Armour & Co. v. Russell, 6 L.R.A. (N.S.) 602.</p> <p>The question of the statutory liability of employers for acts constituting negligence in the exercise of superintendence is treated in a note to Canney v. Walkeine, 58 L.R.A. 44; as to negligence of superintendents while participating in the work, see page 47 of same note; also notes to Gallagher v. Newman, 16 L.R.A.(N.S.) 146, and Rippy v. Southern R. Co. 21 L.R.A. (N.S.) 601.</p> <p>2. The duty of an employer to furnish an employee with reasonably safe tools and implements and a reasonably safe place to work in is a continuing one; and it is negligence in an employer to leave dangerous machinery, especially when it is in a confined space, without proper safeguards, so as to prevent injury to the help in charge of it.</p> <p>3i Under subsections 1 and 2 of § 1 of the employers’ liability act of Porto Rico of 1902, P. R. Rev. Stat. p. 151, an employer is liable when the injury occurs “by reason of any defect in the condition of the ways, works, or machinery connected with, or used in, the business of the employer, which arose from, or had not been discovered or remedied owing to, the negligence of the employer, or - of any person in the service of the employer and intrusted by him with the duty of seeing that the ways, works, or machinery were in proper condition; or by reason of the negligence of any person in the service of the employer, intrusted with the exercising of superintendence, whose sole or principal duty is that of superintendence;” — and the matter of contributory negligence is for the jury.</p> <p>4. Where a ease has been fairly submitted to the jury, and a new trial is asked for, only for alleged errors of law, the same should not be granted when the court sees no reason to change its views in that regard.</p>

<p>1. The charter party and the bill of lading is the best evidence of what a contract of shipment of goods referred to therein is.</p> <p>Note. — Shipping.—As to demurrage and when it accrues, see note to The Conqueror, 41 L. ed. U. S. 937.</p> <p>2. A consignee of lumber wbo alleges that a custom exists of deducting 20% of the measurement on lumber that is dressed rather than rough has the burden upon him to show such custom.</p> <p>3. Where the charter party provides that freightage on the lumber is payable only on its delivery, and where the same is delivered at the warehouse of the consignee for the convenience of the latter, and a dispute immediately arises as to the amount of money due for the freight, the shipmaster has not waived his lien upon the lumber. Healy v. 219,399 Feet of Dressed Yellow Pine Lumber, 2 Porto Rico. Fed. Rep. 401, 402, followed.</p> <p>4. Where a cargo of lumber is being delivered to a consignee, and a dispute arises as to the amount of money due on account of the freight, and the consignee places what lie considers the balance due in a bank with notice that if the master of the ship withdraws the money from the bank, it will be considered as an acceptance of the amount in full settlement, the withdrawal of the money under protest by the master is not binding, where as matter of fact a larger amount is due. It is not in the power of the consignee unilaterally to settle the dispute in that way, and there is no consideration for the master of the ship to make such new contract. The consignee, in paying the money, Is only doing what lie was by law obliged to do under the original contract between the parties.</p> <p>5. The time a ship is held waiting for the convenience of the court to try the case is not properly chargeable as demurrage.</p>

<p>1. A new trial will not be granted because of newly discovered evidence when tbe same is merely cumulative.</p> <p>2. Surprise regarding the line of evidence developed at a trial will not be considered as sufficient ground for setting the verdict aside when the alleged evidence is of a character that ought to have been foreseen by the party complaining.</p> <p>3. A new trial ought not to be granted when the court is of opinion that the issues were well before the jury, and that the trial in and of itself was a fair one, and when the court cannot say that the verdict would probably be different, even with the alleged newly discovered evidence before the jury.</p> <p>4. Tt is a well-settled rule that surprise may be, not that it must be, a ground for a new trial. It is always a matter of discretion with the court.</p>

<p>1. Where, on a motion for a new trial, it 'appears that the court let a ease to the jury on the theory that the facts made defendant liable, and the court ascertains that it erred as to the law in that regard, a new trial will be granted, and counsel for plaintiff required to file an affidavit showing that on the new trial the evidence will be such as to warrant recovery, or else the suit will stand dismissed.</p> <p>2. An employer or master is not liable for the acts of his servant that are not done with his knowledge, express or implied, and that are entirely without the scope of the servant’s duty.</p> <p>Note. — Master and Servant; Liability. — Master’s liability for injury to child invited into place of danger by employee, see note to Foster-Herbert Cut Stone Co. v. Pugh, 4 L.R.A. (N.S.) 804, which is referred to in the above opinion.</p> <p>As to liability for acts of servant held not to be within scope of employment, see note to Bowler v. O’Connell, 27 L.R.A. 177, also referred to in above opinion.</p> <p>3.. A railroad company is not liable for the careless act of its servants in throwing sugar cane from its cars to children standing in a safe place beside the railroad track as a train passes, and in consequence of which one of the children, in scrambling for the cane, is injured.</p> <p>4. A child eight years of age, who leaves a safe place beside a railroad track as a train passes and rushes towards the train and takes hold of a stick of sugar cane protruding from the side of the car and is pulled down under the wheels and injured, cannot recover from the railroad company for the injury.</p>

<p>1. The national employers’ liability acts, both that of June 11, 1906,' 34 Stat. at L. 232, chap. 3073, U. S. Comp. Stat. Supp. 1909, p. 1148, and that of April 22, 1908, 35 Stat. at L. 65, chap. 149, U. S. Comp. Stat. Supp. 1909, p. 1171, are constitutional as to, and are in force in, Porto Rico, the first being superseded only as to common carriers by railroad by the second. Ramirez v. Ponce R. & Light Co. ante, followed.</p> <p>2. Notwithstanding that each of said acts of Congress provides that the liability shall be “to his or her personal representative,” this does not necessarily mean that both of the parents of a deceased employee, who have been designated jointly by a court of competent jurisdiction as the personal representatives of the deceased, may not sue as plaintiffs.</p> <p>3. The provisions of the national safety appliances act of March 2, 1893, 27 Stat. at L. 531, chap. 396, as amended by the act of April 1, 1896, 29 Stat. at L. 85, chap. 87, U. S. Comp. Stat. 1901, p. 3175, have been extended to common carriers by railroad in the territories, which includes Porto Rico, by the act of Congress of March 2, 1903, 32 Stat. at L. 943, chap. 976, U. S. Comp. Stat. Supp. 1909, p. 1143, and is in full force and effect in said district.</p> <p>4. A civil engineer, in support of the accuracy of his plat offered in evidence, will not be permitted to state facts communicated to him by the station master of a railroad company regarding the locus and conditions of and surrounding an accident that occurred some time ' previously; the evidence of the station master himself is the best on that point.</p> <p>5. Declarations self-serving in character made by an injured man as much as twelve hours after the accident that caused the injuries are not admissible.</p> <p>6. Under authority of the national employers’ liability acts, as they are purely compensatory, it is competent for the plaintiff to show that the deceased was a person of good and thrifty habits, his earning capacity, and the amount he contributed to the support of the party for whose benefit the suit is brought, but the wage rate at the time of the actual injury that resulted in the death is not the absolute criterion by which to measure such earning capacity. Whenever plaintiff has introduced evidence to show the good and thrifty habits of deceased, it is then competent for the defendant to show the contrary.</p> <p>7. It is negligence per se for a railroad company to pile coal in the form of a wall so close to its tracks as to make it unsafe for its employees to couple cars in front of it.</p> <p>8. Under § S of the national employers’ liability act of April 22, 1908, contributory negligence, on the part of the employee does not bar recovery, but only reduces the damages in proportion to the negligence of the employee.</p> <p>9. In actions under this latter employers’ liability act, the employee cannot be held to be guilty of contributory negligence, or to have assumed the risks of his employment, where a violation by the employer of any of the safety appliances acts contributed to the injury.</p> <p>10. Employers have by law imposed upon them the continuous duty to furnish their employees with a reasonably safe place in which to work and reasonably safe tools and implements with which to perform it.</p> <p>11. Even under the national employers’ liability acts, the burden is upon the plaintiff to show negligence in a defendant, either in fact or as matter of law, by their default under said liability acts.</p> <p>12. An employee cannot recklessly and knowingly expose himself to unusual risk or danger, and recover for injury to himself occurring in consequence thereof, under the national employers’ liability acts, no matter what the default of the defendant may be as to a reasonably safe place to work in or safety appliances with which to work, any more than such employee could do so before the enactment of such liability acts.</p>

<p>1. The district court of the United States for Porto Rico will not entertain a bill to review matters which a plea in abatement shows to have been decided finally between the parties several times in the insular courts. Aguirre v. Sobrinos de Ezquiaga, 2 Porto Rico Fed. Rep. 139, and Gonzalez v. Buist, 4 Porto Rico Fed. Rep. 243, followed.</p> <p>2. Where a plea of res judicata sets up the fact that the matter in dispute has been litigated between the parties in the insular courts as many as ten times, lasting through a series of years, and the court can see, from the transcript of such proceedings filed with the plea, that such is the fact the latter will be sustained.</p> <p>3. A plaintiff who chooses a forum of competent jurisdiction must abide the result of the final decision therein.</p>

<p>1. A person born of foreign parents in Porto Rico in 1862, and who is now forty-eight years of age, and who was never registered in the consulates of his father’s mother-country, but who, on the contrary, was registered in Porto Rico and in his father’s mother-country as a Spanish subject when he went there to school, and who has always claimed to be a Spanish subject, both under the Spanish régime in Porto Rico, and who voted and held office as such, and who, after American occupation, claimed under the treaty of Paris to be a Porto Rican, and also held office and voted as such Porto Rican under American occupation, is in law a Porto Rican.</p> <p>2. A person born in a country, even though of foreign parentage, who has always claimed to belong to the country in which he was born, and who has voted and held office 'therein, and all of whose property is situated therein, and who, after becoming of age, never claimed to belong to the country of his father, should, under the rule laid down in Boyd v. Nebraska, 143 U. S. 135, 36 L. ed. 103, 12 Sup. Ct. Rep. 375, have every favor indulged in favor of his claim of citizenship in the country to which he has thus adhered, and it is no part of the duty of a so-called United States court for mere purposes of jurisdiction to overthrow the intent of such person in that regard.</p>

<p>1. The national employers’ liability acts, both that of June 11, 1906 (34 Stat. at L. 232, chap. 3073, U. S. Comp. Stat. Supp. 1900, p. 1148), and that of April 22, 1908 (35 Stat. at L. 65, chap. 149, U. S. Comp. Stat. Supp. 1909, p. 1171), are constitutional as to and are in force in Porto Rico, the first being superseded only as to common carriers by railroad by the second. Ramirez v. Ponce R. & Light Co. ante, 353, followed.</p> <p>Note. — As to duty and liability under Federal and state railway safety-appliance acts, see note to Chicago, Milwaukee, M. & St. P. R. Co. v. United States, 20 L.R.A.(N.S.) 473.</p> <p>2. Notwithstanding that each of said acts of Congress provides that the liability shall be “to his or her personal representative,” this does not necessarily mean that both of the parents of a deceased employee, who have been designated jointly by a court of competent jurisdiction as the personal representatives of the deceased, may not sue as plaintiffs.</p> <p>3. The provisions of the national safety appliances act of March 2, 1893 (27 Stat. at L. 531, chap. 196), as amended by the act of April 1, 1896 (29 Stat. at L. 85, chap. 87, U. S. Comp. Stat. 1901, p. 3175), have been extended to common carriers by railroad in the territories, which includes Porto Rico, by the act of Congress of March 2,, 1903 (32 Stat. at L. 943, chap. 976, U. S. Comp. Stat. Supp. 1909, p. 1143), and is in full force and effect in said district.</p> <p>4. In a suit by the parents of a deceased employee, under the national employers’ liability act of April 22, 1908, for the death of their son, occurring through the negligence of the defendant railroad company, a verdict of $6,000 is not so excessive as to authorize the court to interfere with the action of the jury to set the same aside, where there if) nothing to show that it was brought about by mistake, passion, or prejudice.</p> <p>5. On a motion for a new trial, the affidavits of individual jurors attacking- their own verdict will ordinarily not be received for any purpose, but, even if they could be received, the party intending to use them must show that it was prejudiced by the alleged facts set forth therein.</p> <p>6. Qutxre, and not decided: Whether self-serving declarations, made by an injured man twelve hours after his injury, are so remote as that they ought not to be considered even in cases where it is impossible to otherwise prove the facts surrounding the actual occurrence.</p> <p>7. Under authority of the national employers’ liability acts, as they are purely compensatory, it is competent for the plaintiff to show that the deceased was a person of good and thrifty habits, his earning capacity, and the amount he contributed to the support of the party for whose benefit the suit is brought; but the wage rate at the time of the actual injury that resulted in the death is not the absolute criterion by which' to measure such earning capacity.- Whenever plaintiff has introduced evidence to show the good and thrifty habits of deceased, it is then competent for the defendant to show the contrary.</p> <p>8. It is negligence per se for a railroad company to pile coal in the form of a wall so close to its tracks as to make it unsafe for its employees to couple cars in front of it.</p> <p>9. Under § 3 of the national employers’ liability act of April 22, 1908, contributory negligence on the part of the employee does not bar recovery, but only reduces the damages in proportion to the negligence of the- employee.</p> <p>10. In actions under this latter employers’ liability act, the employee cannot be held to be guilty of contributory negligence, or to have assumed the risks of his employment, where a violation by the employer of any of the safety appliances acts contributed to the injury.</p>

<p>Where a person who is made respondent to a bill in equity that seeks to set aside certain deeds for realty on the ground that they were made without consideration, and in fraud of the real owners, makes no proper showing as to his failure to defend after he has once appeared, and exhibits no sincere desire to defend on the merits, he will not be heard in an effort to set aside a decree pro confesso against him, or to have the decrees in the cause vacated.</p>

<p>1. A life estate ends with the life of the holder thereof, and a lease made by the life tenant ends with the death of the lessor, save that, under the statute of Porto Rieo, if the property leased is an agricultural estate, growing crops may be gathered by the life tenant or his lessees during the agricultural year.</p> <p>2. Under the statute of Porto Rico, a life tenant or usufructuary, and hence his lessees, has no right to be indemnified for improvements, but may remove such improvements if it be possible to do so without damage to the property.</p> <p>3. Sublessees of the lessee of a life tenant ordinarily have no rights in the property, as against the remainderman or residuary legatee.</p> <p>Note. — Right of lessee of life tenant to possession and emblements upon death of his lessor, see note to Edghill v. Mankhey, 11 L.R.A. (N.S.) 688.</p>

<p>1. The rule laid down in Munich v. Valdes, 3 Porto Eico Fed. Eep. 255, that it is no part of the duty of a court to interfere or set aside the verdict of a jury, when it cannot he said that it is against the decided weight of the evidence, or the result of mistake, passion, or prejudice, followed and approved.</p> <p>2. When the evidence is such that the jury, on questions of negligence and contributory negligence, could well have found either why, the court will not set aside the verdict and grant a new trial. Where the facts constituting liability have been well proved by plaintiff but positively denied by 'defendant, still it is the province of the jury, and not the court, to say which side preponderates. The case should therefore be submitted to the jury under proper instructions as to the burden of proof. Cabrera v. San Juan Light & Transit Co. 3 Porto Rico Fed. Rep. 222, and Delgado v. Insular Line, 4 Porto Rico Fed. Rep. 310 followed.</p>

<p>1. Under the mortgage law of Porto Rico, a duly recorded certificate of dominio title or ownership is the legal title to the property, and, in the absence of any other recorded title in said same registry, protects innocent third parties. Pettingill v. Rios, 4 Porto Rico Fed. Rep. 549, followed.</p> <p>2. After the date of the signing of the treaty of Paris (December 10, 1898), and consequently after hostilities had ceased, the commanding general of. the American forces in Porto Rico was without power to issue a general order, reducing the period of limitation that must elapse between the obtaining of “posesorio” and “dominio” certificates of possession and ownership of land from twenty to six years, without’ affording parties affected by it a reasonable time to assert their rights in court before their property rights were entirely cut off.</p> <p>3. Such a general order reducing the period of limitation to six years, being by its terms retroactive, is void as to a case where more than six years had already elapsed of the former limitation, and a “dominio” title or certificate of ownership obtained thereunder does not protect otherwise innocent third parties. The court that issued such a certificate was wholly without jurisdiction. The effect of the military order in such a case was to take the property without due process of law.</p> <p>4. Quwre, and not decided: Whether such a military order, even though retroactive by its terms, may not have the force of law as to cases where a reasonable portion of the six years yet remains?</p> <p>5. Every department and official of the government of the United States, wherever acting, is at all times subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its Amendments. The only exception to this would probably be the acts of a military commander-, arising out of sheer military necessity in time of actual hostilities. Therefore, after hostilities have ceased, the military commander, when acting regarding civil matters and general personal and property rights, has no power to deprive any person of his property save by due process of law of some sort.</p>

<p>When a defendant in ejectment, following § 1385 of the Civil Code of Porto Rico of 1902, causes his vendor to be notified of the pendency of the suit, and summoned to appear and defend if he so desire, such fact does not make his vendor a party to the suit, and the court can render no judgment against such vendor, nor does his citizenship affect the jurisdiction of the court.</p>

<p>Where a writ of attachment is issued from this court, and levied upon mortgaged real estate of the defendant, thereafter, and while the suit is still pending here, the attachment lien will not be vacated as of course, on the mere motion of the mortgagee, under art. 125 of the mortgage law, even though such mortgagee has had the property “adjudicated” to him in the meantime, under the summary process of the mortgage law, in an insular court. Such summary proceeding is probably not due process of law, and the rights of third parties may not necessarily be shut out. In such case the mortgagee should at least be driven to an affirmative action here to cancel the attachment lien.</p>

<p>1. Swamp lands in Porto Rico, of such extent that they are not situated within the unquestioned boundaries of land held in private ownership, will be presumed to he public property, such as was placed under the control of the government of Porto Rico under § 13 of the Eoraker law (31 Stat. at L. 80, chap. 191).</p> <p>2. El Caño or Laguna de Tiburones, in Porto Rico, is a well-known tract of “cortadera” or swamp land, 10 or 12 miles long, reaching from near Arecibo to Barceloneta, along the north shore of the island, and varies in width from a few hundred yards to more than a mile and a half. ■</p> <p>3. Lands held in private ownership to the south of the caño, which have, as the boundary call for the north line thereof, El Caño de Tiburones, end at the edge of the caño or swamp, and do not extend into the same to any imaginary or other center line thereof, and there is in fact no channel of open water running through said caño, save at the extreme ends.</p> <p>4. It would appear that there was practically no land held in fee simple or private ownership, certainly not by poor farmers or vassals of the King of Spain, in Porto Rico previous to the date of the real cédula of 1778, of Carlos III.</p> <p>5. Where the government of the island of Porto Rico makes a concession of what it contends is public land, and places its concessionee in possession thereof, ejectment and deshaucio proceedings of persons claiming to be injured private owners of some of the land taken by the government for such purpose are wholly inadequate remedies, and such private owners can maintain a bill to quiet their titles as against the claims of the government’s lessees. Hernandez v. J. Ochoa y Hermano, 4 Porto Rico Fed. Rep. 400 followed.</p>

<p>1. An indictment found under § 3082, U. S. Rev. Stat., U. S. Comp. Stat. 1901, p. 2014, which shows on its face that the merchandise which has .been concealed, or the transportation of which has been facilitated, is lottery tickets, is bad on demurrer, because lottery tickets are mere evidences of chances to win prizes, and are not merchandise in the sense of the statute in question.</p> <p>2. The statute in question is highly penal, and therefore should be strictly construed, and it is manifest that it refers entirely to goods upon which the payment of duty was evaded, and lottery tickets are not even subject to duty.</p> <p>3. Mere evidences of value, such as bank bills, bonds, insurance policies, notes, checks, and lottery tickets, are ordinarily not merchandise, even though they may at times be bought and sold.</p>

<p>1. In a civil suit for damages for the perpetration of a rape upon her, the plaintiff is only required to make out her case by a preponderance of the evidence, and not by evidence beyond a reasonable doubt, as in a criminal prosecution. This is a distinguishing feature as to amount of proof between the two proceedings.</p> <p>2. In prosecutions for rape, the age of consent in Porto Rico is fourteen years.</p> <p>3. Proof that a defendant administered narcotics, anesthetics, or intoxicating liquors to plaintiff, that deprived her of her faculties and power of resistance, excuses the production of other proof of lack of consent or of physical resistance, such as is usually required.</p> <p>4. Circumstantial evidence is just as good, and often better than other sorts of evidence, when such evidence fits in with all the other proofs and facts in the case, and tends to show the liability or nonliability of a defendant.</p> <p>5. Evidnee of previous unchaste character of a plaintiff in a civil suit for damages for rape only goes to her credibility and in mitigation of damages, and is of itself no defense against the outrage actually committed upon her.</p> <p>6. Failure on the part of a plaintiff, in a civil suit for damages for rape to make immediate complaint of the outrage against her is a strong circumstance tending to sustain the allegation of consent upon her part, but may be rebutted by other facts and circumstances in the case.</p>

<p>1. A speaking demurrer will be overruled, as the matter set out therein should be set up in an answer.</p> <p>Note. — Pollution of streams. — As to correlative rights of upper and lower proprietors to throw refuse into stream, and pollution generally, see note to Barnard v. Shirley, 41 L.R.A. 751; as to pollution of stream by mining operations, notes to Drake y. Lady Ensley Coal, Iron & R. Co. 24 L.R.A. 64, and Straight y. Hover, 22 L.R.A. (N.S.) 276; as to effect of plaintiff's contributory act on right to recover damages for pollution of stream, note to Bowman v. Humphrey, 6 L.R.A. (N.S.) 1111; as to liability in damages of one of several polluters of a stream, note to Gibboney Sand Bar Co. v. Pulaski Anthracite Coal Co. 24 L.R.A. (N.S.) 1185; for cases on the question of prescriptive right to pollute stream, see note to Leahan v. Cochrane, 53 L.R.A. 895.</p> <p>' 2. A defendant who pollutes a stream passing by his land by depositing poisonous substances therein to such an extent as that the oxen of his downstream neighbor, which drink thereof, sicken and die, is liable to an action for the loss thus sustained, and the complaint is not subject to general demurrer.</p>

<p>1. The rule of the civil law with reference to liability for damages for polluting the waters of a stream is not materially different in Porto Rico from that of the common-law rule in any of the states of the Union.</p> <p>2. The owners of sugar centrals have no,right to permit deleterious substances to escape from their mills into the neighboring streams in quantities sufficient to damage their downstream neighbors who use tne waters thereof for purposes of watering their live stock.</p> <p>3. Every plaintiff whose property is being injured by the negligent act of another is in duty bound to immediately take such precautions as may be proper, to prevent the aggravation of the damages, and he cannot recover for damage accruing to him because of his own negligence in that regard.</p> <p>4. In practically all civil suits for damages by reason of the negligence of a defendant, the burden is upon the plaintiff to establish by a preponderance of the evidence that the damage to him was in fact caused by the negligent act of the defendant, and this is particularly so where, on the facts in evidence, the injury may have occurred from other causes than those regarding which it is alleged defendant was negligent.</p>

<p>It is proper practice and fully within the power of every court to at any time remit a fine and costs that it may have entered against attorneys at law practising before it. Such power is inherent regarding its own officers and is a necessary attribute that conduces to the amicable relations that should always exist between the court and counsel.</p>

<p>1. Specific performance of contract to convey land: Complainant entered into a contract -with the main respondents to purchase from them, under certain terms and conditions, three different tracts of land. The contract could not he immediately carried out because of a large portion of the land described being under lease.. Complainant, expecting to be able to get the land, performed minor conditions of' the contract, and went to considerable expense in planting and preparing fruit trees, etc., to be used thereon, but as the lessee would not relinquish his rights, considerable time elapsed and incidental occurrences took place, in which both parties were participants, before it was possible to get possession. Probably because the land had increased in value, respondents refused to make the conveyance, at least for the full quantities contracted for, after being repeatedly requested and the money tendered, thus forcing complainant to file his bill for specific performance, alleging his willingness to pay the contract price, etc. At the trial the parties came to an agreement as to two of the tracts, and disagreed as to the boundary lines of the third, which controversy was settled by the court on the evidence. Held, that the court has power to name an independent surveyor to go upon the ground and ascertain the quantity of land, and its boundaries, contracted for, under its findings on the evidence, and has power to tax the costs of such service against the party for whose benefit the service is required.</p> <p>2. A. third party respondent who takes a lease of portions of the property, pending the existence of such a contract between complainant and the owners, with knowledge of the existence of the contract as found by the court, is bound by such contract, and takes no estate as against such complainant.</p> <p>3. See the opinion for the facts surrounding the transaction.</p>

<p>1. A Federal court has the right, of its own motion, at any time while it has control of a case, to raise the question of jurisdiction, and to dismiss the cause for lack of it.</p> <p>2. Unless it unquestionably appears, from the face of the pleadings or the proofs, that the amount involved or in dispute is not sufficient to give the court jurisdiction, the case ought to be retained.</p> <p>%. After verdict, if the court cannot say that the damages claimed, together with the amount involved, were in bad faith fixed at an amount sufficient to come within the jurisdiction, the mere fact that the jury finds damages in a sum less than the jurisdictional amount ought not to authorize the dismissal of the case, and a motion for a new trial should be overruled.</p>

<p>Process of garnishment, as a usual thing, holds not only money in the hands of the garnishee at the time of the service of the notice upon him, but all that comes to his hands up to the time he makes his return.</p>

<p>3. A bill in equity that seeks to recover from a respondent property which the latter bought at an execution sale against the complainant, on the ground that the purchaser had been the agent and manager of the property for complainant, and therefore had no right under the general rule, and under § 1362 of the Civil Code, of 1902 of Porto Rico, to purchase his principal’s property at such a sale, that does not tender the amount of money paid therefor by the agent, is bad on demurrer.</p> <p>2. The rule that one standing in a fiduciary relation to another, in the management of property, cannot become the purchaser of such property himself at a forced sale thereof, does not always apply where the agent or trustee was not responsible for, and took no part in bringing about, the sale at which he became the purchaser. But even if a bill to recover the property could be maintained, it would be inequitable to permit the recovery without obliging complainant to ' return the purchase price to such agent or trustee.</p> <p>3. A judgment and an execution under it that are regular in form are a full protection to all innocent third parties, and even in case of the reversal of the judgment on writ of error, the defendant cannot after-wards maintain a bill in equity to recover the property sold without at least offering to return to the purchaser the money he paid therefor. In the absence of such offer a demurrer to the bill will be sustained.</p>

<p>1. Where the making of an agreement is denied by a respondent, the burden is immediately put upon the complainant to show the existence of the contract, before a court will consider the matter of its specific performance.</p> <p>2. A court will not hold a contract to exist as against a respondent who denies the same, and where it appears that the agent, who, it was claimed, entered into the same for such respondent, specifically provided that it should not be binding upon the party referred to until the latter had consented to the same in writing.</p> <p>3. Complainants own adjoining tracts of land over which a power line must, of necessity, pass. The franchise for the power line belonged to one respondent. A construction company was building the line. The agent of the latter, in its eagerness to finish its work, entered into an agreement with the owners of the land, by which it was provided that the latter should have certain rights to light and power at certain rates, in consideration of permitting the power towers to be built over their land; but the agreement provided that it should not be binding upon the owner of the franchise until the latter’s written consent was obtained thereto. The consent was never given, but, on the contrary, the agents of the owner of the franchise repudiated it at the first opportunity. In the meantime, the construction company, by leave of the landowners, had gone on and built the towers. Held: That the contract, if any existed, was only between the landowners and the construction company, and that hence the remedy of the landowners is at law. Such an agreement cannot be enforced against the owners of the franchise.</p>

<p>1. Under §§ 159 and 1328 of the Givil Code of March 1st, 1902, of Porto Rico, a wife must join her husband in a deed of community realty, or the instrument will be ineffectual to transfer her interest or that of her heirs in the property.</p> <p>2. Her failure to so sign is not cured by the local act of February 24, 1903 (Session Laws, p. 57), as its terms are not broad enough to include such an omission. The wife’s failure to sign such a deed is not a mere defect; it is a failure of parties.</p> <p>3. Even previous to the adoption of the Porto Riciln Civil Code of March 1st, 1902, the wife had such an interest in the ganaeial or community realty as that it was within the power of the local assembly to change the agency by which the same could be alienated, and to require that the wife must join in the deed.</p>

<p>Under rule 28 of this court, the venue in any civil cause pending may, on application, and after a proper showing, be transferred to the division of the court that is most convenient for all of the parties.</p>

<p>3. Under the terms of the national employers’ liability act of April 22, 1908 (35 Stat. at L. 65, chap. 149, U. S. Comp. Stat. Supp. 1909, p. 1171), a complaint is seldom demurrable if it at all substantially complies with the provisions of that act.</p> <p>2. Whether the act in question can be held to be constitutional in the several states of the Union, it is not subject to such objection in a territory or dependency such as Porto Rico, as to which Congress has supreme power regarding legislation.</p>

<p>1. Por a defendant in a criminal case to apply for a dedimus potestatem under § 886 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 663), to secure the deposition of a witness living a foreign country, in his favor, is, to say the least, a novel proceeding, because the general belief appears to be that that section only applies to civil cases and to the chancery side of the court.</p> <p>2. Qucere and not decided: Whether, even if the commission is issued and the deposition taken, it would, as matter of law, be admissible on the trial!</p>

<p>The laws of Congress regarding the removal from local to the Federal courts are mandatory, and a defendant in the state court cannot cause the removal of a case after his time to answer has expired.</p>

<p>1. Whether a street car was in motion while a plaintiff attempted to alight is a question of fact for the jury.</p> <p>2. A person injured through the negligence of a street car company, by the starting of a car before sufficient time has been given to the passenger to alight, is entitled to recover damages for the injury.</p> <p>3. In personal injury cases where no malice is shown on the part of the defendant, only compensatory damages can be recovered.</p> <p>4. Such cases can be decided upon a preponderance of the evidence.</p> <p>5. A person who negligently tries to alight from a street car while it is in motion, and before it has come to a full stop, is guilty of contributory negligence, and cannot recover therefor.</p>

<p>1. Jurisdiction here is based upon the diversity of citizenship of the parties; and while this court, perhaps, cannot entertain matters of a purely probate character, it may determine the interest of complainants, and perhaps the interest of intervening creditors, in the estate, where the will is one that does not need to be probated, but is admitted by all parties.</p> <p>2. Under the Civil Code of Porto Rico of 1889, which was in force at the time of the death of the testator, he had a right, where all the heirs were illegitimate, to dispose of two thirds of his estate, and could either better ■ any particular child or dispose of the property to Btrangers.</p>