Volume 6 — Puerto Rico Federal Reports

<p>1. Where the rights of encumbrancers rest solely upon a local statute, the district court of the United States, in an action to remove the encumbrances as clouds upon plaintiff’s title, is bound to follow the decision of the supreme court of Porto Pico that the same are so far liens that they cannot be removed as clouds on plaintiff’s title.</p> <p>2. In an action to remove a cloud on the title, where the so-called cloud is found to be a valid lien, the court has no further power in the action to compel thé payment of such lien by the persons conveying the land to plaintiff by a deed reciting that it was free and clear from encumbrances, but it should dismiss the bill.</p>

<p>1. One wli-o makes a contract to be carried on a boat from Porto Rico to a place named in the contract has no right of action against the boat, but merely one in personam against the owners, where neither the passenger nor the boat entered upon the performance of the contract, as no maritime lien was created.</p> <p>2. A libel in an action against a boat and the owners for nonperformance of a contract of carriage of passengers may not be amended so as to set out a cause of action against the owners, where the court had no jurisdiction of the boat, and the owners were not in court, and the action as claimed was simply against the boat, and an amendment which would make the owners liable would make an absolute substitution, creating a new action.</p>

<p>Where an action based on contract and brought in the insular court is removed to the Federal court, the defendant is not in default because of failure to file pleadings, if he tenders a demurrer to the complaint within twenty days after the filing of the transcript, and within ten days after the entry thereof.</p>

<p>1. General statutes with relation to their jurisdiction must always give way to special statutes which have particular application to specified courts created by the United States.</p> <p>2. Where the word “jurisdiction” is used in a statute without limitation of1 “concurrent,” or “original,” or “appellate,” or “territorial,” or any other word of limitation, it must be held to include all jurisdiction.</p> <p>3. Jurisdiction is the right to adjudicate concerning the subject-matter in a given case; and to constitute this it is essential that the courts have cognizance of the class of cases to which theone to he adjudicated belongs, that the proper parties be present, and that the point decided upon be, in substance and effect, within the issue.</p>

<p>The burden is upon the plaintiff to establish freedom from contributory negligence, in an action by an employee against his employer under the employers’ liability act of Porto Rico.</p> <p>Note. — The question of the burden of proof as to contributory negligence under employers’ liability acts is treated in a note in 33 L.R.A. (N.S.) 1218.</p>

<p>1. Letters written by a person in the United States to other persons in the territory of Porto Rieo, containing proposals for furnishing ships of war or arms, ammunition, and military stores, do not constitute evidence of a violation of the Penal Code of the United States, § 13, as amended in 1909, forbidding any person within the .territory or jurisdiction of the United States to begin, set on foot, provide, or prepare the means for, any military expedition or enterprise to be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace, where there is no acceptance of such proposals.</p> <p>2. An indeterminate offer to a single person of employment on the staff of a person then a private citizen, in the event of his becoming president of a neighboring republic, after he had become such president, and a statement that the means by which he expected to elevate himself to said office was an expedition to proceed from a point outside the jurisdiction of the United States against such neighboring republic, do not constitute any offense under the Penal Code of the United States, § 13, as amended and approved in 1909, forbidding anyone within the territory or jurisdiction of the United States to begin, set on foot, or provide, or prepare the means for, any military expedition or enterprise to be carried on from thence against the territory or dominions of any foreign prince or state with whom the United States is at peace.</p> <p>3. Judicial notice may be taken of the fact that no state of war exists between the government of the United States and that of the Dominican Eepublie, although no treaty of amity between such countries is in existence.</p>

<p>1. A court may, in its discretion, permit an amendment to a bill to conform to the proof, where the amendment is not repugnant to the original bill, and does not present an entirely new or essentially different case, and the cáse is tried upon the same theory upon which it would have been tried had the original hill been like the amended bill.</p> <p>2. The Federal court has jurisdiction, under the Porto Rico Code of Civil Procedure, § 282, providing that an action may be brought by any person against another who claims an. interest in real property adverse to him, for the purpose of determining such adverse claim, to entertain a suit in equity to quiet title in confusion of boundaries, and to prevent a multiplicity of suits and irreparable injury.</p> <p>3. Where a party in a suit in equity answers and submits to the jurisdiction of the court, it is too late for him to object that a plain and adequate remedy at law exists.</p>

<p>1. The executive council of Porto Rico, acting in its legislative capacity as provided in the act of Congress approved April 1, 1900, has no right to grant any franchise which would impair the validity of a contract entered into between the applicant for the franchise and a person outside the franchise.</p> <p>2. Although the word “penalty” is used by the parties to a contract, if the intention of the parties is clearly deducible from the contract, read as a whole, to have the sum specified in lieu and in liquidation of damages which may result to one of them by reason of the breach of a stipulated condition by the acting party, in contemplation of law the word is to have the force and meaning which would be expressed by the words “liquidated damages,” and is not • to be considered in a penal sense.</p> <p>Note. — On the question of the power of the legislature in respect to municipal franchises, see note in 48 L.R.A. 485,</p>

<p>A vendor, under a contract for a deed of land which allows him the usufruct of the land, has no right to remove merchantable timber before -the execution of the deed, especially where the existence of the timber is an inducement to the contract.</p>

<p>1. An attack upon the judgment of a court is not collateral, where the court making the adjudication had no jurisdiction of the case.</p> <p>2. The proper proceeding for a claiming owner of land not in possession is an action of ejectment.</p> <p>3. It is not necessary that fraud be alleged in an action of ejectment by one who was deprived of his interest as infant heir in his father’s land by a sale by his guardians, alleged to be illegal because of noncompliance with law.</p> <p>4. A tender of the purchase price of land, from the plaintiff to the defendant, is not necessary as a prerequisite to the bringing of an action of ejectment by one who was deprived of his interest as infant heir in his father’s land by a sale by his guardian, alleged to be illegal because of noncompliance with law.</p>

<p>1. A seaman who, while at work with one foot on a revetment and one on the stern of a vessel, and in the act of placing a box which he had carried on the vessel, is injured as a result of the gang plank of a ferryboat sweeping along the revetment and pinioning his leg against the .vessel, is entitled to recover for such injuries, where the failure to keep the ferryboat under control in attempting to make a landing was due to the fact that no provision was made for attaching her bow to the revetment, and that no employee was on hand to receive her hawser, although, as had been the habit for over thirty years, the seaman depended upon the adhesion of the gang plank to the revetment when it came into contact, and it failed to come into contact at the particular time.</p> <p>2. Damages in the sum of $4,000 may he given to a seaman between thirty and forty years of age, who is competent, industrious, sober, and is earning a salary of $25 per month, where, by a collision of a ferryboat with the boat upon which he is working, one of his legs is injured so as to necessitate its amputation.</p>

<p>A hotel partnership was not dissolved by the acts of a member in notifying the other partner in writing that he elected to terminate the partnership for the general reason that the other partner had failed to keep his partnership obligations, and had not conducted himself properly in his portion of the business, in talcing into his sole possession the property and assets of the partnership, and in excluding the remaining -partner from a joint share in the management and profits thereof.</p>

<p>As no original jurisdiction in probate matters is conferred by law upon the United States district court for Porto Rico, but such jurisdiction exists under the law exclusively in the insular district courts, and as the laws of Porto Rico relating to probate matters, and particularly to heirship, designate the manner in which the same shall be declared and by what particular tribunal, the United States district court for Porto Rico has no jurisdiction to consider a claim of heirship until the fact of heirship has been ascertained by the 'insular district court having exclusive original jurisdiction thereof.</p>

<p>A subcontractor employed at work on a Eederal building may, at the instance of the contractor, be enjoined from removing appliances belonging to the subcontractor and contemplated to be used in the construction of such building, where, although the Eederal government has not intervened, the rights of the parties to the action are involved in other litigation in the Eederal court.</p>

<p>Creditors will not be permitted to file their claims outside the year limited by the statute of bankruptcy, where no sufficient showing has been made of diligence, or any reason why their laches should not bring them within the inhibition of the statutory provision.</p>

<p>1. Where, pending appeal by defendant without giving a supersedeas bond, execution is issued by plaintiff, and a portion of the amount realized thereupon is given to his attorneys in accordance with a contract by which they were to receive for their services a certain percentage of the amount recovered, they are liable to defendant for a restitution of the amount so received by them.</p> <p>2. The district court of the United States is without jurisdiction to modify or change, after the termination of the term at which it was entered, its order of restitution of the amount received upon an execution in an action pending an appeal.</p>

<p>The exercise of the option of a suspension of cutting for a limited period under the conditions prescribed in the cane-grinding contract between a planter and a sugar factory in no way alters or affects the mutual obligations of the parties, on the one hand to offer cane for grinding with the required percentage of sucrose, and, on the other, to deliver to the planter percentages of sugar of the required and contracted degree of polarization.</p>

<p>1. Where an action by an alien without property within the jurisdiction of the court, against a citizen, sounds in equity, the general equity jurisdiction of the Federal district court is broad enough to protect the defendant by requiring the plaintiff to give a bond of $2,500.</p> <p>2. Where the language of a complaint sounds in equity, instead of in law, an oral demurrer on that ground will be sustained.</p>

<p>The demurrer to the complaint in an action at law will he sustained and the case dismissed, where by no possibility could any money judgment be recovered against the defendant, and the greatest relief which, under any possible circumstance, the plaintiff would he entitled to, would be to have an instrument, under which the defendant had no personal obligation, declared to be a lien upon land in the nature of an equitable mortgage, and the only possible remedy would be through a foreclosure of such equitable lien.</p>

<p>1. An attempted exercise by the lessee, after a material breach by him of the lease, of his option to renew the lease by an attempted extension of a sublease for the renewal period, does not have the legal effect of making such extension, in the face of the existing breach.</p> <p>2. A party to a contract may, at any time that a breach of its terms is committed by the other party, declare a rescission upon allegation of such breach, with the legal effect of an absolute termination of the contract.</p> <p>3. Where a governmental water concession is granted for the purpose of irrigating specific lands, under the Law of Waters of 1866, providing that in every concession of the use of public waters a term shall be fixed for the completion of the works, and that the authorities which granted the concession may declare it lapsed whenever, even after the works are completed, there has been a failure to use the water for the continuous period of a year and a day for the object for which it was granted, the government may declare such concession lapsed, in case of the continuous diversion, for more than a year and a day of part of the waters granted, to other lands than those specified, in the concession.</p> <p>4. In case of a diversion of waters granted by a governmental water concession for the purpose of irrigating specific lands, to other lands, affirmative action of rescission of such concession can he taken by the government at any time upon proof of such diversion, without the necessity of awaiting the lapse of twenty years of nonuser.</p> <p>Note. — On the question of holding over after expiration of lease, with option for extension or renewal, without formally exercising option, see note in 29 L.R.A. (N.S.) 174.</p> <p>As to assignment of lease, generally, see note in 15 L.R.A. 754. And for the enforcement of landlord’s consent to assignment of lease, see note in 25 L.R.A.(N.S.) 1173. And upon the tenant’s right to sublet premises, see note in 4 L.R.A. (N.S.) 707.</p> <p>5. Section 1453 of the Civil Code of Porto Rico does not authorize a lessee to assign the lease.</p>

<p>1. Where an attorney receives a certain interest in a lien from the holder thereof, in consideration of services, and subsequently another person purchases the lien from the holder, and the property upon which it is a lien from the owner thereof, and such purchaser is later decreed by the court to be entitled to the possession of the property, the interest of the attorney does not constitute a litigated credit under the provisions of § 1438 of the Civil Code of Porto Rico, which provides that when a litigated credit is sold the debtor shall have the right to extinguish the same by reimbursing the assignee for the price the latter paid for it, the judicial costs incurred by him, and the interest •on the price from the day on which the same was paid, and that a credit shall be considered as litigated from the day the suit relating to the same has been answered, and that the debtor may make use of his rights within nine days, counting from the day the assignee should demand payment of him,— as, when the court determined that the purchaser was entitled to the possession of the property, the claim of the attorney ceased to be a litigated credit in the sense contemplated in § 1438, as entitling him to a redemption of the property.</p> <p>Note. — The question of the personal liability of the purchaser of personal property which is subject to a lien is discussed in a note in 59 ' L.R.A. 737.</p> <p>2. Persons purchasing a lien subsequently to the making and performing of a contract by an attorney with the owner thereof, to prosecute all proceedings necessary to determine the extent of the latter’s interest in her father’s estate, in consideration of an undivided fraction of such lien, did not have such notice of the attorney’s contract as to constitute their purchase a fraud against his right in the lien, where it appears that, in a conversation, regarding another matter, between the attorney and such purchasers before their purchase, the attorney advised them to purchase the íien, and endeavored to have them do so, stating, that he represented the owner thereof on contingent basis, but without mentioning the percentage thereof, and that, less than a week thereafter, another conversation was had between them in which, after such purchasers told the attorney that they had purchased the lien, they were then for the first time informed of the-attorney’s contract and of the amount of his contingent interest in the lien.</p> <p>3. Where purchasers of property, .and of a lien thereon, subsequently to the making and performing of a contract by an attorney with the holder of the lien, to prosecute all proceedings necessary to determine the extent of the latter’s interest in her father’s estate, in consideration of an undivided fraction of such lien, did not have such notice of the attorney’s right as to constitute their purchase a fraud against his interest in the property, and the attorney has not made a tender to such purchasers of the amount expended by them, he is not entitled to redeem the property from such purchasers.</p> <p>4. Where a person purchases a lien from the holder thereof, with knowledge that another had previously obtained from the holder an undivided interest therein, such purchaser is liable to the owner of such undivided interest, in a sum equal to the value of the latter’s interest.</p>

<p>In an action by a subcontractor against a government building contractor for damages by reason of unwarrantable delay and interference of the latter, where such delay and interference were caused by the exercise by the government of its option of making changes and alterations in the footings of the foundation, evidence by the government building inspector that the government had ordered additional work or changes upon the foundation as originally planned is admissible, although the footings of the foundation formed no part of the subject-matter of the subcontract.</p>

<p>1. The anchorage, hy a fisherman, of his rowboat in a used channel, on a dark night, without such a light as is required by statute, and with no sufficient appliances for safety in emergency, close to a harbor buoy which is the turning point for vessels coming from the piers to leave the harbor,' constitutes such negligence as will prevent a recovery of damages for his drowning in consequence of a collision between his boat and a steamship.</p> <p>2. Where a rowboat is wrongly anchored in a used channel in a harbor, a steamer colliding therewith can be held at fault only in case wilful negligence is shown on the part of those operating, her.</p> <p>Note. — The authorities on the relative duties of steamers and small «raft propelled hy oars, on rivers and in narrow channels, are collated in a note in 5 L.R.A.(N.S.) 303.</p>

<p>A motion for an allowance of an attorney’s fee will be denied, where it ia not prayed for with sufficient definiteness.</p>

<p>Instructions to Referee in Bankruptcy.</p> <p>Bankruptcy — Review of Referee’s Order.</p> <p>Bankruptcy order No. 27 provides that a review of the referee’s action can he had upon petition of the creditor whose claim is disallowed. But the court can, under bankruptcy rule No. 37, mold the procedure in special cases, and should do so \Vhere the referee himself asks the instruction of the court about a public matter, such as a franchise and a claim for taxes.</p>

<p>As to New Trials.</p> <p>Practice — New Trial on Terms.</p> <p>1. Where a new trial is granted upon certain terms as to payment of expenses, and these are not complied with, the case goes off the docket without more.</p> <p>Practice — Dismissal Without Prejudice at Law.</p> <p>2. In the Porto Rican courts a dismissal may be without prejudice: and where this practice has been followed in a ease in the Federal court, a new complaint may be filed, and the case will be set for trial. This is equivalent to taking a nonsuit at common law.</p>

<p>National Employees’ Liability Act.</p> <p>The Employers’ Liability Act, Porto Rico.</p> <p>1. The act of Congress as to employers’ liability applies to territories, therefore to Porto Rico, which is not of a higher grade than a territory.</p> <p>Employers’ Liability Act, National and Local.</p> <p>2. The national liability act, like the acts of Congress as to commerce, is exclusive where it applies. A suit cannot be brought under the local legislation of Porto Rico, under the conditions named in that of the national act.</p> <p>Note. — The authorities on the constitutionality, application, and effect of the Federal employers’ liability act are collated in an extensive note in 47 L.R.A. (N.S.) 38.</p>

<p>On Amended Demubber to Amended Complaint.</p> <p>Pleadings — Ownership of Land.</p> <p>1. Where the pleadings show that the property belongs to husband and wife as owners, the wife, under § 161 of the Civil Code of Porto Rico, will be held to he properly in court in connection with her own property.</p> <p>Pleading.</p> <p>2. Where the defendants are in possession of land at the time of the alleged trespass, plaintiffs cannot sue for damages, nor for the statutory penalty in article 279 of the Code of Civil Procedure. Land title cannot be settled in a damage suit.</p> <p>Pleading — General Demurrer.</p> <p>3. A general demurrer not stating a specific objection may, under the Code of Civil Procedure, § 105, he disregarded.</p> <p>Trespass — Merger.</p> <p>4. Damages subsequent to the ouster are merged in it, and cannot he recovered except in connection with a suit for possession of the land.</p>

<p>Clerk’s One Per Centum.</p> <p>Fees of Clerk — Money Deposited.</p> <p>All money received by the clerk in pursuance of any statute or order is to be paid into the registry, and the clerk is entitled to 1 per cent compensation for paying it out, under § 828 of the Revised Statutes, U. S. Comp. Stat. 1901, p. 635. The fact that the clerk kept it separate for a while, before depositing in the registry, does not alter the rule.</p>

<p>On Motion fob Reconsidebation of Obdeb as to Teems.</p> <p>Practice — Solicitor’s Fees as Terms.</p> <p>1. A court of equity has the discretion, in a proper case, to impose the payment of reasonable solicitor’s fees as terms for reopening a case which has been dismissed.</p> <p>Practice — Action of Preceding Judge.</p> <p>2. The court will not ordinarily reconsider the discretionary action of a preceding judge at a previous term.</p>

<p>Setting Aside Deceees.</p> <p>Practice — Setting Aside Decree Pro Cohfesso.</p> <p>The court has discretion to set aside the decree pro confesso at a' previous term, and will exercise it by imposing such costs as will pay the costs of the decree and of setting it aside, so that the parties will be placed in the position they were in before the decree.</p>

<p>Pleading and Pkactice.</p> <p>Pleading — Construction Against Pleader.</p> <p>1. Where a complaint states that the plaintiff usually resides in Spain, it will, construing the statement more strongly against the pleader, mean that she is a resident of Spain, and a nonresident of Porto Rieo. Her physical residence in Porto Rieo will not change this rule.</p> <p>Pleading — Porto Rican Procedure.</p> <p>2. Section 342 of the Porto Rico Code of Civil Procedure suggesting that the proceeding he stayed until costs are secured, where plaintiff is a nonresident, is followed.</p>

<p>Suit in Foema Paupeeis.</p> <p>Pleading — In Forma Pauperis.</p> <p>1. Tlie right to sue in forma pauperis is limited by law to citizens of the United States, and does not apply to a subject of Spain.</p> <p>Pleading — fm Forma Pauperis applies to Porto Rican.</p> <p>2. While, by the terms of the statute, the privilege of suing in forma pauperis is limited to Americans, this nationality includes Porto Ricans.</p>

<p>On Motion to Set Aside Attachment.</p> <p>Attachment — Petition Por.</p> <p>1. Under the Porto Rican law, § 371, Revised Statutes, an attachment cannot be granted unless an action is entered and petition filed stating points of law and fact; and a petition referring to a complaint which contains a full statement is sufficient.</p> <p>Attachment — Bond.</p> <p>2. The Porto Rican law as to attachments, Revised Statutes, §§ 309-386, is, as to bond, to be construed in connection with § 355 of the Code of Civil Procedure.</p> <p>Porto Rican Code of Civil Procedure — Strict Construction.</p> <p>3. The. Porto Rican Code of Civil Procedure is largely modelled upon that of California, which requires that all preliminary provisions must be strictly followed.</p> <p>Federal Practice — Conformity in Attachment.</p> <p>4. Under Revised Statutes, § 915, U. S. Comp. Stat. 1901, p. 684, the local attachment law may he adopted by a Federal court by general rules; but this has not been done in Porto Rico, and the local law is followed by comity.</p> <p>Federal Practice — Amendment.</p> <p>5. Under § 954 of the Revised Statutes, U. S. Comp. Stat. 1901, p. 696, pleadings and process may be amended for any defect or want of form, and this applies to attachment, although under the local procedure such amendment would not be allowed. The lack of justification on an attachment bond may be cured subsequently.</p>

<p>On Cross Motions foe Dismissal.</p> <p>Practice — Allegation of Invalid Corporation.</p> <p>1. A plaintiff cannot bring a corporation into court as defendant, and then move to dismiss because it is not a corporation.</p> <p>Practice — Nonentry of Order.</p> <p>2. Where the plaintiff has dismissed his case in this court, and begun proceedings in another, he cannot dispute the fact of dismissal in this court because the clerk failed to enter the order.</p> <p>Practice — Amendments.</p> <p>3. Sec. 954 'of the Revised Statutes of the United States, U. S. Comp. Stat. 1901, p. 696, constitutes the law as to amendments in Federal courts, and cures the omission of a clerk to enter an agreed order.</p> <p>Practice — Striking from the Docket.</p> <p>4. Where a case has been dismissed by consent, and the order has been omitted by error, and the case entered upon the docket for the next term, it is improperly on the docket and will be stricken therefrom.</p>

<p>Service by One Other Than Marshal.</p> <p>Equity Practice — Service of Subpoena.</p> <p>1. The rule as to service of subpoenas is the same under equity rule 15 as it has been heretofore, and does not affect the procedure prescribed in § 787 of the Revised Statutes, U. S. Comp. Stat. 1901, p. 608 as to service of process by the marshal.</p> <p>Same — Exceptions.</p> <p>2. The court will designate some other person than the marshal to serve process, where the marshal himself is a party; and it has been held that in special eases the court may have witnesses subpoenaed under the direction of the court; but the matter of expense is not one calling for such special order.</p>

<p>ATTORNEY’S FEE UNDER LOCAL STATUTE.</p> <p>Attorney’s Fees — Federal Practice.</p> <p>1. The law of Porto Rico as to lihel and slander provides that the judgment shall include attorney’s fee from plaintiff or defendant, as the case may be, but this regulation cannot he enforced in the Federal court, because the Revised Statutes of the United States, § 823, U. S. Comp. Stat. 1901, p. 632, provides the only rule for compensation to attorneys and others.</p> <p>Attorney’s Fees — Local Statute.</p> <p>2. This principle has nothing to do with appeals from local courts, in the enforcement of local laws. It relates only to suits begun in Federal courts.</p> <p>Attorney’s Fees — Federal Laws.</p> <p>3. The principle is different also where the attorney’s fee is expressly allowed by Federal statute.</p> <p>Attorney’s Fees — Contract.</p> <p>4. The principle is different where an attorney’s fee is distinctly made a part of a contract, as in mortgages.</p> <p>Federal Practice — Local Statute.</p> <p>5. Local statutes are applied in the Federal courts under the Revised Statutes, § 721, U. S. Comp. Stat. 1901, p. 581, whether it refers to tort or contract; but this does not apply where the local statute is repugnant to any express law of the United States, such as § S23 of the United States Revised Statute.</p> <p>6. Barbosa v. Bird, 1 Porto Rico Fed. Rep. p. 79; Manes v. Istel, 4 Porto Rico Fed. Rep. p. 532, followed.</p>

<p>On Certificate of Eeferee as to Allowance of Claim of the People of Porto Eico.</p> <p>Bankruptcy — Proof of Claim.</p> <p>1. Where a claim is set up against an assignee, the creditor must prove not only the correctness of the claim, but the validity of the assignment. Nonuser of the right in question tends to show its nonacceptance.</p> <p>Bankruptcy — Termination of Franchise.</p> <p>2. Where a franchise to use water provides that the permit shall ipso faeto become null and void unless there is an annual payment by a certain date, there is a revocation on that date per se, unless the amount is so paid.</p> <p>Bankruptcy — Tax or Contract.</p> <p>3. It need not be determined whether a claim is for a tax or for a contract price, if it has come to an end.</p> <p>Note. — On the question of forfeiture of franchise of water company, for failure to comply with contract, see note in 61 L.E.A. 93.</p>

<p>On Demubeee to Pabageaeh 6 op the Answee.</p> <p>Civil Code of Porto Rico, § 1804 — Corporations.</p> <p>1. Owners or directors of an establishment or enterprise under the Civil Code are not limited to corporations. The provision as to damages under § 1S04 covers all employers, corporate or incorporate.</p> <p>Civil Code — Diligence of a Good Rather of a Family.</p> <p>2. The exception from liability when the diligence of a good father of a family has been employed is different from the exemption of a superiór when he has selected a proper servant. The diligence required embraces proper supervision of the servant after he has been employed.</p> <p>Civil Code — Nature of Responsibility.</p> <p>3. The theory of this responsibility under the Spanish Code is based upon the relation of authority or superiority of the employer with the actual author of the damage; but this is a presumption juris tantum, and not juris et de jure, and may be rebutted.</p>

<p>On Motion of Julian Munsubi fob Leave to Give Bond.</p> <p>Bankruptcy — Appeal.</p> <p>1. Where there has been an appeal and supersedeas to the supreme court, the district court is deprived of jurisdiction except for the purposes of orders necessary to preserve the fund.</p> <p>Same — Bond for Possession of Pund.</p> <p>2. The court below therefore cannot allow a defendant to give a bond and take possession of the fund pending appeal.</p>

<p>As TO ARREST OE JURYMEN.</p> <p>Arrest of Jurymen — Obstructing Justice.</p> <p>1. Sec. 5399 of the Revised Statutes U. S. Comp. Stat. 1901, p. 3656 provides for the punishment of one obstructing the administration of justice, but this does not apply to a case of a policeman arresting a juryman, when brought before the court for contempt.</p> <p>Same — Contempt.</p> <p>2. The arrest at recess of a juryman trying a case is a contempt of court within the purview of § 725 of the Revised Statutes, U. S. Comp. Stat. 1901, p. 583, whether it be at a courthouse or on the street.</p> <p>Same.</p> <p>3. No officer of the United States is above the law, but the matter of enforcement of the law varies with circumstances. There can be no arrest of an official of court during the trial of a case, without the consent of the court itself.</p> <p>Same- — Recess.</p> <p>4. Under Re Neagle, 135 U. S. 1, 34 L. ed. 55, 10 Sup. Ct. Rep. 658, a juror is protected during the recess of the trial court, the same as if in the jury box.</p> <p>Same — Harboring Criminals.</p> <p>5.A court, however, will not harbor a criminal because he is a juror, and fixes the rule that jurors while not in the box may be arrested, provided they are brought by the officer to the bar of the court for directions.</p> <p>Note. — The question whether misconduct toward juror constitutes contempt is discussed in a note in 46 L.R.A. (N.S.) 517.</p> <p>Courts — Jurisdiction.</p> <p>6. The procedure of the court must be protected in its entirety, because courts furnish the touchstone of every law. A trial is more-important than an arrest.</p> <p>Juries — Part of Court.</p> <p>7. A jury engaged in the trial of a case is as much a part of the court as the judge, and will be protected accordingly.</p>

<p>As TO AMENDING ORDERS OE PREVIOUS JUDGE.</p> <p>Practice — Amending Orders of Previous Judge.</p> <p>1. The court will uniformly decline to interfere with matters decided by a previous judge, especially when rendered at a term past.</p> <p>Practice — Supplying Deficiency in Decree.</p> <p>2. Where, however, a decree is incomplete, the court will supply the element which may have been omitted, such as naming a definite time in which an act required shall be performed.</p> <p>Practice — Party in Default Cannot Apply.</p> <p>3. A party who has failed to comply with an order of court cannot be heard to ask its modification.</p>

<p>Suit in Equity fob Specific Peefokjíance.</p> <p>Porto Eico — Equity.</p> <p>1. The organic act of April 11, 1900, by its § 34, extends to Porto Eico the provisions of § 2, Article 3, of the Constitution.</p> <p>Contract — Mortgage Law.</p> <p>2. The mortgage law of Porto Eico, like the statute of frauds in the common-law states, requires certain forms of conveyance and registration; but this does not prevent the equity jurisdiction from attaching to enforce specifically a contract to convey.</p> <p>Contract — Certainty.</p> <p>3. An agreement made at a public meeting to grant a right of way for a railroad across the lands of the subscribers is sufficiently certain to be enforced.</p> <p>Specific Performance — Statute.</p> <p>4. There is in Porto Eico no statute which takes the place of the equitalle remedy of specific performance.</p> <p>Jurisdictional Amount.</p> <p>5. The sworn statement of the complainant in another suit, fixing the value of the property above the jurisdictional amount, estops him from stating otherwise in this court.</p> <p>Community Property — Old Civil Code.</p> <p>6. Under the old Civil Code of Porto Eico (1889) the husband was the administrator of the conjugal partnership, and could alienate real and personal property without the consent of the wife.</p>

<p>Suit by Poeto Ricau m Foema Pauperis.</p> <p>Suit in Forma Pauperis — Porto Rican within Statute.</p> <p>The Federal act permitting suit in forma pauperis is to be construed as prohibiting suit in this way by an alien, but permitting such a suit by Porto Ricans, as well as by Americans.</p>

<p>Recovery Back of Taxes.</p> <p>A Motion to Dismiss.</p> <p>1. A’ motion to dismiss after prior pleadings must be filed by consent of court; but this will be granted in order to reach the merits.</p> <p>Note. — On the question when action ¡against officers is deemed to be action against the state, see notes in 1 L.K.A.(N.S.) 727 and 44 L.R.A. (N.S.) 189.</p> <p>Submission to Jurisdiction — Sovereignty.</p> <p>2. Where the defendant properly appears and files an answer, the question of jurisdiction of the person is waived.</p> <p>Jurisdiction.</p> <p>3. The question of jurisdiction can be raised at any time.</p> <p>Jurisdiction — Suing Porto Rico.</p> <p>4. An incorporated territory of the United States cannot be sued without its consent; and Porto Rico is, so far as regards suits, a territory.</p> <p>Suit against Sovereignty — Officers.</p> <p>5. A suit to compel an official to carry out his duties under a statute is not a suit against a sovereign.</p> <p>Sovereign — Waiver.</p> <p>6. A sovereign can waive its nonliability to suit, and can, by clear enactment, limit suits against it to its own courts.</p> <p>Judgment — Enforcement.</p> <p>7. It is not necessary to a judgment that it fix the method of its enforcement.</p> <p>Statute — Presumption.</p> <p>8. In a doubtful case a construction of a statute which deprives Americans and foreigners of rights given to local residents of Porto Rico will not be preferred.</p>

<p>To Recover Back Taxes.</p> <p>Pleading.</p> <p>Where the principle involved is the same, a decision similar to another case will be made, although raised by different pleadings.</p>

<p>Application por Mandatory Injunction.</p> <p>Injunction — V erifieation.</p> <p>1. Under paragraph 5 of equity rule 25, an application can he made for an injunction, only upon filing a bill verified as upon knowledge.</p> <p>Injunction — Relief Clear.</p> <p>2. An injunction will be granted only upon a bill making out a clear case.</p> <p>Mandatory Injunction — Specific Performance.</p> <p>3. Mandatory injunction will issue, in a proper case, for tbe specific performance of a contract.</p> <p>Interstate Commerce Commission — Porto Rico.</p> <p>4. The Interstate Commerce Commission has jurisdiction to enforce in Porto Rico the Federal safety appliance act.</p> <p>Interstate Commerce- Commission — Jurisdiction.</p> <p>5. The Interstate Commerce Commission is authorized, after hearing parties interested, to proceed by orders in the matter at issue. Where a party has not been cited or heard by the commission, it has not had its day in court, and is not bound by the order.</p> <p>Same — Safety Appliance Act.</p> <p>6. The Interstate Commerce Commission has power to extend time for compliance with the act, but not to direct a railroad which has complied with the act to cease to comply with it, when the railroad has made no application for that purpose.</p> <p>Injunction — Damages.</p> <p>7. Where a defendant declines to haul cars of the complainant which are improperly equipped, but offers to rent the complainant cars which are properly equipped, semble that a mandatory injunction will not apply to accept the improperly equipped ears.</p> <p>Injunction — Continuous Acts.</p> <p>8. An injunction does not lie in a case which will require a continuous supervision of a business by the court.</p>

<p>Liability of Automobile Owneb.</p> <p>General Demurrer.</p> <p>1. A general demurrer will not be sustained under Porto Rico Code of Civil Procedure, § 106.</p> <p>Note. — As to making prima facie case of responsibility for negligence of driver of automobile by proof of defendant’s ownership of car or employment of driver, see note in 46 L.R.A.(N.S.) 1091. And upon the validity of a statute making owner liable for injuries by automobile being used by another, see note in 45 L.R.A.(N.S.) 699.</p> <p>Pleading — Presence of Automobile Owner.</p> <p>2. Under § 1803 of the Civil Code of Porto Rico a person is responsible for his negligence; and the negligence of a chauffeur or other employee acting under the control and in the presence of the employer is the negligence of the employer himself.</p>

<p>On Motion to Set Aside Verdict and Judgment.</p> <p>Practice — Decree at Previous Term.</p> <p>1. The court will not generally reopen matters settled by orders at previous terms.</p> <p>Practice — Death of Defendant.</p> <p>2. If a defendant was alive and aware of the proceedings at the time of a default, although he died previous to the execution of the writ of inquiry, the default will not be set aside.</p> <p>Same — Writ of Inquiry against Dead Man.</p> <p>3. A writ of inquiry cannot be executed if the defendant has died since the default. Ascertaining damages cannot be done by the court without action of living parties.</p>

<p>On Conflicting Claims to Rent.</p> <p>Lease — Civil Law.</p> <p>1. Under tlie civil law a lease is a personal contract of hiring, and does not convey any interest in the land. A purchaser may affirm a lease by collecting the rent, or may disaffirm the lease by ignoring it; hut if the lease is so terminated, the lessee has the right to finish his crop and to recover damages against the lessor.</p> <p>Lease — Record.</p> <p>2. It is not necessary to the validity of a lease that it be recorded, but under the civil law leases of real property not recorded have no effect.</p> <p>Lease — Third Parties.</p> <p>3. Under the Porto Rico mortgage law leases must be recorded if for a period over six years, where the rent has been paid in advance for three years, or record as agreed upon; and in such case the lease becomes an interest in real property.</p> <p>Subleases.</p> <p>4. The law as to recorded leases applies to subleases and instruments affecting real property.</p> <p>Mortgage Law — Third Persons.</p> <p>5. A third person under the Porto Rico mortgage law in some respects resembles a bona fide purchaser for value at the common law.</p> <p>Land Owner — Registration.</p> <p>6. A landowner has the right to convey any interest in his prop-srty, and this is good against the world, except so far as the recording statutes protect a third party.</p> <p>Note. — On the question whether a lease is a conveyance within meaning of recording statutes, see note in 24 L.R.A. (N.S.) 879.</p>

<p>On Petition op Receiver fok Instructions as to Borrowing Money.</p> <p>Porto Rico Mortgage Law.</p> <p>1. The Mortgage Law of Porto Rico is retained in force by the Foraker act, and binds the Federal court.</p> <p>Federal District Court — Jurisdiction.</p> <p>2. The district court of the United States for Porto Rico has full equity jurisdiction, except so far as is modified by Federal legislation. Romeu v. Todd, 206 U. S. 369, 51 L. ed. 1097, 27 Sup. Ct. Rep. 724, distinguished.</p> <p>Receivers’ Certificates — When Issued.</p> <p>3. Receivers’ certificates originated with public corporations, and are not issued except for the preservation of property. They may be issued in Porto Rico for the preservation of sugar centrals.</p> <p>Receiver’s Certificate — Postponement of Mortgage.</p> <p>4. The interest on a mortgage, and payment of instalments on- the principal, may be postponed to receivership certificates issued for the preservation of the property.</p> <p>Receivership- — Continuance.</p> <p>5. A receivership is not in court for the purpose of staying there, and will be closed when it ceases to be preservative.</p> <p>Receivership — Bankruptcy.</p> <p>6. When a receivership is being properly conducted for the preservation of property in the Federal district court, such court will refuse to permit bankruptcy proceedings.</p>

<p>INDEMNITY FOB EXPENSES.</p> <p>Bankruptcy — Expense of the Referee.</p> <p>In case of a bankruptcy proceeding in forma pauperis, the ref-cree, under General Order No. 10, may require a deposit of not exceeding $10 at a time to cover the expenses. This, however, should not be applied to fees of officers covered by the original deposit of $25.</p>

<p>As to Authority of Receivers to Borrow Money.</p> <p>Receivers — Borrowing Money.</p> <p>Where receivers have been authorized by court to borrow money for certain purposes pending negotiations, and negotiations are not finished within the time of the loan, the court will authorize the receiver to borrow a further sum for similar purposes. Such money is borrowed to keep the business as a going concern.</p>

<p>On Application op a Foreigner to Sue in Forma Pauperis.</p> <p>Habeas Corpus — Fees.</p> <p>1. Habeas corpus proceedings are sui generis, and are not governed by the statute as to costs. Nevertheless, persons desiring to take the aid of officials must pay them some reasonable compensation, arid § 828 of the Revised Statutes, U. S. Comp. Stat. 1901, p. 635, follows by analogy.</p> <p>Suit In Forma Pauperis — Foreigner.</p> <p>2. Under the act of 1892 a foreigner cannot sue in forma pauperis. This is a privilege of a citizen of the United States.</p>

<p>Habeas Corpus by Alien Ordered to Be Deported.</p> <p>Immigration Laws.</p> <p>1. The immigration laws of the United States begin with the act of March 3, 1875, but have been changed from time to time until the subject is now governed by the act of February 20, 1907, as itself amended by the act of March 4, 1913.</p> <p>Immigration Laws — Policy.</p> <p>2. The policy of these laws is to protect the American laborer from competition of foreign workmen seeking lower wages.</p> <p>Immigration Laws — Contract Laborers.</p> <p>3. The original basis of the law was to exclude those brought by contract to perform labor for others, but proof of such a contract is not now required.</p> <p>Immigration Law —■ Proceedings.</p> <p>4. Deportation proceedings under the immigration law are not governed by the ordinary rules of practice and evidence; and everything is reduced to a record, which is sent up to the Secretary of Labor.</p> <p>Immigration Law — Practice.</p> <p>5. When an affidavit by the alien, prior to the examination before an immigration commissioner, is sent to the commissioner, it becomes a part of the record, and may be considered.</p> <p>Immigration Law — Evidence.</p> <p>6. The fact that there was correspondence by which the alien was induced to come to this country is material, although it does not amount to a contract.</p> <p>Immigration Law — Ignorance as. to employer.</p> <p>7. The fact that the alien came without knowing the name of an employer is not material, when he came to the United States to perform labor in response to an offer too broad to amount to a contract.</p> <p>Immigration Law — Invitation.</p> <p>8. If an alien comes to this country because a friend writes hack in praise of the country, this would violate no law.</p> <p>Immigration Law — Passage Money.</p> <p>9. Where the alien’s passage is paid for with the money of another, the burden is on the alien to show that he does not belong to one of the excluded classes.</p> <p>Immigration Law — Inspection.</p> <p>10. If an alien secured admission by means of false statements, he enters without inspection, in the eye of the law. The examination required is more than physical inspection.'</p> <p>Immigration Law — Courts.</p> <p>• 11. The power of courts to review the action of immigration officials is limited. Differing with the Secretary of Labor as to the conclusion of fact would not give jurisdiction. The courts can interfere with this branch of the executive department only if there is not evidence upon a material fact, or if there has been some abuse of discretion.</p>

<p>On Referee’s Certificate as to Contempt.</p> <p>Bankruptcy — Contempt Before Referee.</p> <p>1. A referee cannot punish for contempt before him, and must certify the fact up to the court.</p> <p>Bankruptcy — Contempt.</p> <p>2. If a bankrupt withdraws before- his examination is completed, it is a contempt of court.</p> <p>Bankruptcy — Withdrawal of Bankrupt.</p> <p>3. The referee is not so much the arm of the court as the court itself, for many purposes in bankruptcy. His action is reviewable, hut cannot be made the subject of contempt.</p> <p>Bankrupt — Contempt.</p> <p>4. The fact that the bankrupt obeyed a subpoena to attend an adjourned meeting modifies the contempt committed in leaving the first meeting.</p> <p>Contempt — Advice of Counsel.</p> <p>5. The fact that a man in committing contempt follows the advice of counsel is no defense.</p>

<p>In . Re Confirmation of Bankruptcy Sale.</p> <p>Bankruptcy — Review by Court.</p> <p>1. Where a party claiming to be injured wishes to have the court review the action of the referee, the referee must certify the question presented, together with a summary of the evidence and his own findings.</p> <p>Bankruptcy — Sale.</p> <p>2. Where a sale is had under an order of the referee, the purchaser does not have a vested right to approval, even though the price he not unconscionable, and the discretion of the referee will not be disturbed by the court.</p>

<p>On Claim of Pkiobtiy by Judgment.</p> <p>Bankruptcy — Priority of Judgment.</p> <p>A local law giving a preference to a judgment conflicts witli the bankruptcy law if the judgment be rendered within three months prior to bankruptcy, and preference must be denied.</p>

<p>In the Matter of Involuntary Bankruptcy.</p> <p>General Demurrers — Defective Pleading.</p> <p>1. A demurrer or a motion defective under Federal practice is nevertheless a pleading, and, while it may be struck out, it cannot be treated as if not filed and a default entered accordingly.</p> <p>Bankruptcy — Duty of Court.</p> <p>2. Even if no pleading is filed, it is the duty of the court to examine the petition, and make an adjudication or dismissal.</p> <p>Bankruptcy — Assenting to Sale.</p> <p>3. Assenting to a sale of perishable goods in a suit already brought is not per se an action of bankruptcy under § 3 (3) of the bankruptcy act.</p> <p>Bankruptcy — Judgment as to Proceeds of Sale.</p> <p>4. Allowing a judgment to be taken by which the proceeds of any judicial sale are diverted to certain creditors at the expense of others is an act of bankruptcy.</p> <p>Bankruptcy — Act.</p> <p>5. A second act of bankruptcy during the progress of a case will not aid the filing of the original petition.</p>

<p>Bankruptcy Claims.</p> <p>Bankruptcy — Attachment.</p> <p>1. Under the bankruptcy law, previous attachment is ipso fcteto abated without act of the parties.</p> <p>Bankruptcy — Assignment of Claims.</p> <p>2. Where claims have been assigned to one creditor for convenience of handling, and the bankrupt is actually in court and does not claim ten days’ continuance, a proceeding by the original creditors to whom the claims have been reassigned may proceed without giving ten days’ notice to the bankrupt.</p> <p>Jurisdiction — Notice.</p> <p>3, Service is necessary to acquire jurisdiction, but notices during the course of the proceeding may be waived by conduct of tbe parties. Law is" meant to be a system of justice, not of form.</p> <p>Petition for Review — New Evidence.</p> <p>4. It is discretionary with the court, upon a petition for review of the referee’s action, to entertain evidence which is assumed in the order of the referee, but not set out in his record.</p>

<p>Lessening Imprisonment on Account of Good Behavior.</p> <p>Imprisonment — Provisional Term.</p> <p>1. Where the court fixes a certain term of imprisonment, hut adds the condition that the prisoner may be discharged after a shorter period, in case of good behavior, the shorter period so fixed is not affected by the local law that imprisonment shall be diminished at a certain ratio for good behavior of the prisoner.</p> <p>Pine and Costs.</p> <p>2. The court will not relieve the prisoner of costs, and will not, without the consent of the district attorney, lessen tlje fine previously imposed.</p>

<p>Pees oe Bankrupt's Attorney.</p> <p>Bankruptcy — Expenses.</p> <p>1. The policy of the bankruptcy law is to reduce all expenses to a minimum, and this applies also to attorneys’ fees. This rule, however, on account of different language and conditions, should have a reasonable construction in Porto Rico.</p> <p>Bankruptcy — Attorneys’ Fees.</p> <p>2. Courts are strict in regard to fees of the bankrupt’s attorney, ■and in this case no reason is shown for overruling-the finding of the allowance by the referee of $100.</p>

<p>On Application op Receiver as to Disaffirming Leases and Contracts.</p> <p>Receivership — Leases and Contracts.</p> <p>1. A receiver should for his own guidance investigate all contracts and leases.</p> <p>Receiver — Contracts.</p> <p>2. The appointment of a receiver affects contracts, but does not make him an assignee of a lease, even if he goes into possession.</p> <p>Receiver — Leases.</p> <p>3'. A receiver is not appointed for the purpose of carrying out the defendant’s contract, but to preserve the property which comes to his hands. He is the hand of the court, and not carrying out a contract is no violation, because he is not a party to the contract.</p> <p>Receiver —• Report as to Contracts.</p> <p>4. It is a better practice for the receiver to report to the court what contracts he deems onerous, and for the court to act thereon only after hearing the other parties to such contract.</p>

<p>On Jurisdiction of Court in Involuntary Proceedings.</p> <p>Bankruptcy — Four Months.</p> <p>1. Four months are to he computed as running from a fixed, day of a month to the same day of the fourth succeeding month, regardless of the number of days intervening.</p> <p>Bankruptcy — Three Creditors.</p> <p>2. Three creditors must join in involuntary proceedings, and the verification must be by each one of the three. If three do not join, the defect does not go to the jurisdiction, and an opportunity will he given to supply the omission.</p> <p>Bankruptcy — Affidavit of an Alleged Creditor.</p> <p>3. If one of the three creditors whose names are signed to an involuntary petition in bankruptcy files an affidavit denying that he signed, the proceeding is halted until this is cleared up.</p> <p>Bankruptcy — New Creditors.</p> <p>4. Creditors other than the original petitioners may at any time enter their appearance and join in the petition in order to supply the three necessary to the jurisdiction, and time will be allowed to supply such a defect of parties; but all petitioners must be creditors at the time of the act of bankruptcy.</p> <p>Bankruptcy — Receivership in a Local Court.</p> <p>5. The fact that a local court has taken jurisdiction of an estate by appointing a receiver does not oust the jurisdiction of the Federal court to entertain a petition in bankruptcy.</p> <p>Bankruptcy Court ■— Comity.</p> <p>6. The comity which should obtain between courts does not prevent the bankruptcy court from taking jurisdiction, if the receivership in a local court was within four months and because of insolvency. Such appointment is itself an act of bankruptcy.</p> <p>Bankruptcy — Local Receiver.</p> <p>7. The appointment of a local receiver is not avoided by proceedings in bankruptcy. He remains in control for the benefit of creditors under the bankruptcy law, until some contrary order is made by the bankruptcy court.</p> <p>Bankruptcy — Jury.</p> <p>8. A demand by a defendant for trial of the questions of bankruptcy and insolvency by a jury is premature until the petition is in proper form, but, all defects being waived, the demand will be granted and an order entered that said issue be submitted to a jury.</p>

<p>As to Juey Trial on Demand of an Alleged Bankrupt.</p> <p>Bankruptcy — Vel Non — Jury Trial.</p> <p>It is discretionary -with the court whether it will summon a special jury to try an issue of bankruptcy vel non on the demand of the alleged bankrupt, or will wait until a jury is regularly in attendance. Unless the regular jury term is distant, the- court will not ordinarily order a special venire.</p>

<p>On Motion fob New Trial.</p> <p>New Trial — Federal Practice.</p> <p>1. The right of the Federal court to grant a new trial is independent of the local law, and may take into account error upon the trial, whether excepted to or not.</p> <p>New Trial — Argument of Counsel.</p> <p>2. Misconduct on the part of counsel may entitle the other party to a new trial.</p> <p>Complaint — Porto Rican Practice.</p> <p>3. Under the Porto Rican practice the main facts set out in the complaint must be proved. Common counts are not known.</p> <p>Argument — Direction by Court.</p> <p>4. If misstatements by counsel are corrected in the charge of the court, the error is cured, and new trial will not be granted.</p> <p>New Trial — Juryman.</p> <p>5. The fact that a juryman visited the scene of the accident alone is, if an error, cured by the fact that the whole court and jury after-wards visited the scene together officially.</p> <p>Res Ipsa Loquitur — Pertinency.</p> <p>6. Where the evidence is conflicting as to a point which might or. might not invoke the principle of res ipsa loquitur, the court may advert to this principle for the purpose of excluding it.</p> <p>New Trial — Misunderstanding — Charge.</p> <p>7. Where the court clearly charges the jury, the court will not assume that the jury believe the charge to mean the opposite of what was said in-it.</p>

<p>ACTION FOR PERSONAL INJURIES, TRIED WITHOUT A JURT.</p> <p>Automobile — Liability of Owner.</p> <p>1. Where the owner is in an automobile and in control of its oper-. ation, he is responsible for any negligence of the chauffeur.</p> <p>Trial Without Jury — Reconciling Evidence.</p> <p>2. Where a case is tried without a jury it is the duty of the court, no less than it would have been the duty of the jury, to try and harmonize the evidence in the case. If in doubt, the court must decide against the plaintiff.</p> <p>Automobile — Frightening Horses.</p> <p>3.' If an automobile is driven in a reckless manner and frightens a horse so that it runs upon an obstruction at the side of the road, the owner of the automobile may be liable. But if the driver of the buggy is frightened and swerves too far to one side, the liability will be upon him.</p> <p>Pleadings — Porto Rico.</p> <p>4. The Revised Statutes require that pleadings in the Federal court should be similar to those in the local procedure. In Porto Rico there are no common counts, and the cause of action must not only be stated concisely, but the facts alleged must be substantially proveí.</p> <p>Note. — The authorities on the question of the duty and liability of the operator of an automobile with respect to horses encountered on the highway are reviewed in notes in 1 L.R.A.(N.S.) 223; 14 L.R.A.(N.S.) 251; and 48 L.R.A.(N.S-) 946. •</p>

<p>Upon Demurrer as to Jurisdiction.</p> <p>Bankruptcy — Proceedings and Controversy.</p> <p>1. The bankruptcy act contemplates proceedings strictly in bankruptcy, and also controversies as to assets of bankrupts.</p> <p>Same.</p> <p>2. Proceedings in bankruptcy are those begun by petition and ended by distribution of the assets and discharge of bankrupt. This jurisdiction is exclusive. Controversies in relation to property may be exercised in ordinary suits at law and in equity. Proceedings are exclusive, hut controversies may be concurrent in state and Federal courts.</p> <p>Controversies — Consent.</p> <p>3. In order to bring controversies in the Federal court, the consent of the defendant is necessary where the parties are of diverse citizenship; but separate consent is not necessary where the defendant has appeared generally.</p> <p>‘Controversies — Consent.</p> <p>4. The amendatory act of 1903, found in § 23b of the bankruptcy act, does not require the consent of the defendant.</p> <p>Bankruptcy — Third Parties.</p> <p>5. The “third parties” under the Commercial Code of Porto Rico are creditors of the bankrupt firm. A dissolution under the Commercial Code may be valid as to the partners, and invalid as to creditors.</p>

<p>As to Modifying Order of Decemf.br 10, 1912, as to Deposit by Defendants Central Aguirre Company and Jeremiah Smith.</p> <p>Injunction — In Contempt.</p> <p>1. A party in contempt of an order of court requiring deposit of money cannot be heard to question the propriety of the order.</p> <p>Equity — Payment into Court of Proceeds.</p> <p>2. If a party is directed to pay into court the proceeds of the operation of the business in lieu of having a receiver appointed, only the net amount of proceeds should be so paid in, as that is all that a receiver would hold for the benefit of the trust.</p> <p>Gross Proceeds — Treble Damages.</p> <p>3. The fact that a question may be involved of treble damages for detention of land is a collateral matter, and cannot be considered on application to modify order for payment of gross proceeds of cultivation into court.</p> <p>Same — Relation of Parties.</p> <p>4. Questions as to the relation of sundry parties to each other is likewise a collateral matter, and cannot be raised upon an application for modification of an order for payment of proceeds into court.</p>

<p>On Jubisdiction and Pbescbiption.</p> <p>Equity — Creditors’ Bill.</p> <p>1. A creditor cannot set aside a fraudulent conveyance executed prior to the inception of his claim against the debtor.</p> <p>Equity Pleading — Estoppel.</p> <p>2. Defenses in equity may be waived, but this relates to matters of procedure, not of jurisdiction. The defense of an adequate remedy at law is such a matter of procedure.</p> <p>Equity' — Remedy at Law.</p> <p>3. The fact that an equitable right or defense is carried over into a law court by legislation does not take away the equitable remedy. Local statutes of limitation will be applied by a Federal court sitting in equity.</p> <p>Prescription and Limitation.</p> <p>4. In Porto Rico there are prescriptions applying to the acquisition of property rights, and others which, like the common-law limitation, apply to the bringing of suits. The fact that equity is largely based upon the civil law does not change the principle that the line of demarcation between equitable and legal remedies in the Federal courts cannot be obliterated by local legislation.</p> <p>Creditors’ Bill — Trust.</p> <p>5. A creditors’ bill to set aside a fraudulent conveyance is a different thing from a bill seeking to have the holder of the title declared a trustee for a creditor, and they are governed by different principles as to limitations.</p> <p>Trust — Holding'Title for Creditor.</p> <p>6. If a title is held in trust for a debtor, it can be subjected even by a subsequent creditor.</p>

<p>Onr Application fob Removal of Trustee.</p> <p>Trustee — Second Appointment.</p> <p>1. A de facto trustee will be recognized until proceedings are taken for his removal, and this applies to a trustee who was appointed by the court in the presence of creditors. It will be presumed either that the creditors nominated or the court appointed in default of such nomination.</p> <p>Trustee — Misconduct.</p> <p>2. It is reprehensible for a trustee not to attend a meeting of creditors which he himself calls; but if the creditors take no action before the referee, the point will not be considered afterwards before the court.</p> <p>Trustee’s Sale — Under 75 Per Cent.</p> <p>3. The bankruptcy law forbids a sale for less than 75 per cent of the appraised value of property, without the approval of the court; but there can be no complaint of such sale if there has been no such appraisal.</p> <p>Removal of Trustee — Burden.</p> <p>4. The burden is on creditors seeking the removal of a trustee, to prove the charges to the satisfaction of the court.</p> <p>Trustee — Reports.</p> <p>5. The trustee must make reports to the court at reasonable intervals, and is not excused by any default of his attorney to make up such report when requested.</p> <p>Removal of Trustee — Will of Creditors.</p> <p>6. A trustee is removed by the court, not by the creditors, and the will of creditors is generally expressed at meetings. Where a petition is signed by creditors for this purpose, the court will examine to see if it represents the will of the majority in number and value of creditors holding allowed claims.</p> <p>Removal — Advice of Creditors.</p> <p>7. The wishes of the majority in number and value of creditors would be very persuasive to the court in exercising its power to remove the trustee.</p> <p>Removal — Majority of Creditors.</p> <p>8. The principle of removal is to consult the best interest of the estate, and if it is not clear that the majority in number and value of creditors desired such action, the court will refer the matter to the referee to allow or disallow all claims properly filed, and report immediately for the guidance of the court.</p>

<p>On Review of Referee’s Order for Trustee to Make Deed.</p> <p>Hearing — Presence of Creditors.</p> <p>1. In proceedings before an American court, both parties have the right to'he present and examine witnesses; but under the bankruptcy law some things are matters of administration, and may be done by the referee without the presence of creditors.</p> <p>Review — Conclusion of Referee.</p> <p>2. The finding of a referee in bankruptcy upon matters of fact will be sustained on review unless clearly wrong.</p> <p>Referee — Power to Order Deed.</p> <p>3. Whether the referee has the power to order the execution of a deed to carry out a contract is not material when the question is presented to the bankruptcy court for review. The court has power to make such order, either by original or review jurisdiction.</p> <p>Referee — Absence of Judge.</p> <p>4. In Porto Rico the absence of the Federal judge from the district confers no greater powers upon the referee. The organic act provides that a substitute judge can be appointed at any time it becomes necessary, and in the eye of the law, therefore, a judge is always on the island.</p> <p>Referee — Proceedings Informal.</p> <p>5. Proceedings before a referee are not required to be conducted with the full formality of a court; and his action upon evidence will be affirmed unless it is shown that evidence was excluded which would change the result.</p> <p>Bankruptcy Court — Concurrent Jurisdiction.</p> <p>6. The Federal court has exclusive jurisdiction in bankruptcy proceedings from petition to discharge, but only concurrent jurisdiction of suits by the trustee to reduce alleged assets to possession. Where an adverse holder invokes the jurisdiction of the Federal court, no question of jurisdiction arises, and the court will proceed.</p>

<p>On THE PRESCRIPTION 03? ONE YEAR.</p> <p>Pleading — Demurrer after Time.</p> <p>1. Where a pleading has been filed after the time allowed by law has expired, the proper method of attacking it is by motion to strike. Right to file such pleading must be obtained from the court, but this right may be granted after such period has expired.</p> <p>Limitations — Prescriptions.</p> <p>2. Prescription under the Spanish law is broader than limitation under the American, inasmuch as it terminates ownership as well as remedies.</p> <p>Prescription — Date from Which.</p> <p>3. The provision that the day on which the time begins to run is considered as a whole day occurs in the chapter relative to prescription of property rights, and does not apply to the prescription of actions.</p> <p>.Prescription — Time.</p> <p>4. The provision in the Political Code, that the time in which any act is to be done is computed by excluding the first day and including the last, applies to prescriptions of actions, as well as to other matters.</p>

<p>In the Matter of Qualification of Juroes.</p> <p>Federal Jurors — Porto Rico.</p> <p>1. The local law in Porto Rico as to qualifications of jurors may be followed by the United States court.</p> <p>Federal Jurors — Alienage.</p> <p>2. The qualifications prescribed by Federal law do not in terms exempt foreigners.</p> <p>Federal Jurors — Alienage.</p> <p>3. Federal legislation is wholly inconsistent with the idea that any alien could be a juryman, and this has been the uniform practice in the Federal court for Porto Rico.</p> <p>Note. — On the question of aliens as grand jurors, see note in 28 L.R.A. 195. And the question of alienage of juror as ground for new trial is treated in the note in 18 L.R.A. 476. .</p>

<p>On PRESCRIPTION AS AFFECTED BY MILITARY ORDERS.</p> <p>Equity — Necessary Parties.</p> <p>1. In a bill to set aside fraudulent conveyances it is not necessary to make persons in tlie chain of title parties, if their title is passed and become vested in the actual defendant. The fact that they are accused of fraud is immaterial if in any event they have no property interest in the result of the litigation.</p> <p>Necessary Parties — Warranties.</p> <p>2. Necessary parties are not those who have an interest in the subject-matter of the suit but those who have an interest in the object of the suit, and this does not apply to warrantors.</p> <p>Necessary Parties — Expediente Posesorio.</p> <p>3. A warranty is not implied if subject to the express terms of an expediente posesorio under the Porto Rican practice, for this expressly disclaims affecting the rights of third parties.</p> <p>Equity — Pleas.</p> <p>4. Pleas as well as demurrers have been abolished by equity rule No. 29; but if filed before these rules went into effect, a plea will be considered as a part defense.</p> <p>Prescription — Not Insisted On.</p> <p>5. The part of a plea not insisted on in argument cannot be considered.</p> <p>Plea — Sufficiency.</p> <p>6. A plea must be construed as admitting the allegations of the bill so far as it does not deny them.</p> <p>Prescription — Military Order.</p> <p>7. A military order which shortens the time of prescription in force is good in cases where there remains a reasonable opportunity for the real owner to contest the claims of the possessor.</p> <p>Prescription — New Statute.</p> <p>8. The law of Porto Rico amending the military orders keeps prior provisions as to prescription in force as to existing titles.</p> <p>Prescription — Rule of Repose.</p> <p>9. After thirty years’ adverse possession a transaction cannot be inquired into in Porto Rico, but the shorter period of six years does not apply unless it be accompanied by good faith and a proper title. One knowing the fraud of his predecessor in the title is not acting in good faith.</p> <p>Expediente Posesorio — Not Good Title.</p> <p>10. An expediente posesorio under the Porto Rican law is in effect ex parte and does not pass the good t.tle which is necessary under the statute of prescription.</p> <p>Statute of Repose.</p> <p>11. Ttie statute of repose applies to a title held under the expedi-ente posesorio.</p> <p>Res judicata — Stare Decisis.</p> <p>12. Where a defense of res judicata is modified into an appeal to stare decisis, the matter cannot he decided except in connection with the proofs.</p>

<p>On Claim of Demukbage.</p> <p>Admiralty.</p> <p>1. Discharge of cargo is a matter coming up under the charter party. The delivery to the consignee is a matter coming up under bill of lading.</p> <p>Freight — Demurrage.</p> <p>2. Where freight is paid after the suit is brought, it does not enter into the ease except in the matter of "'sts.</p> <p>Captain — -Waiver.</p> <p>3. A waiver of demurrage will control the ship, but a waiver on condition will not control, unless afterwards reaffirmed.</p> <p>Demurrage.</p> <p>4. The vessel is not liable for delay due to insufficiency of wharf or carts for hauling.</p> <p>Freight — Cargo.</p> <p>5. Freight is due from the cargo at the time and place where the cargo is unloaded, unless otherwise agreed. The adjustment of accounts between the formal and the real consignee is no concern of the vessel beyond allowing a short reasonable time for them to communicate. A reasonable time should be allowed for examination of the cargo.</p> <p>■Ship — Cargo.</p> <p>6. A vessel perforins lier duty when she discharges the cargo, and it is not her duty to count it or weigh it.</p> <p>Negotiations — Compromise.</p> <p>7. Juristic rights are suspended during negotiations for a compromise, and evidence of the negotiations is not permissible.</p> <p>Demurrage — Sundays.</p> <p>8. Sundays and holidays are excepted from the lay days of a vessel, but not from the time of demurrage.</p> <p>Ship — Charter Party.</p> <p>9. The liabilities of the ship are controlled by the charter parties, which call for discharge of the cargo, and not for the delivery to the consignee. Any disputes between the consignees must be settled outside.</p>

<p>INJUNCTION AND SPECIFIC -PERFORMANCE.</p> <p>Preliminary Injunction — Merits.</p> <p>1. The court will not try the merits upon the application for a preliminary injunction.</p> <p>Specific Performance- — Other Relief.</p> <p>2. In an application for a specific performance, the transaction must be clear, and there must be no other adequate relief.</p>

<p>• The Court’s Instructions to the Jury.</p> <p>Court — Jury.</p> <p>1. The jury are á part of the court. The judge instructs as to the law, and the jury judge as to the facts.</p> <p>Counsel — Jury.</p> <p>2. Differences between counsel are not a matter which concerns the jury.</p> <p>Admissibility — Credibility.</p> <p>3. It is for the judge to admit evidence, and for the jury to determine its weight. The jury must consider all evidence, but need not believe a witness if he has not told the truth.</p> <p>Contradiction of Witnesses.</p> <p>4. The fact that witnesses differ from each other does not necessarily prove that either one is lying. Men look at things from different view points, and it is the duty of the jury to reconcile the testimony as far as they can.</p> <p>Witnesses — Impeachment.</p> <p>5. The fact that a witness has made a contradictory statement, and is repudiated by the side putting him on the stand, leaves the jury at liberty to disregard his evidence if they think proper.</p> <p>Note. — On the question of presumption and burden of proof as to capacity of minor servant to comprehend and avoid danger, see note in 29 L.R.A.(N.S.) 487.</p> <p>As to servant’s assumption of risk of danger imperfectly appreciated, see’note in 4 L.R.A. (N.S.) 990.</p> <p>jury — Deliberations.</p> <p>6. Jurors should try to harmonize their views, unless a matter of principle is involved.</p> <p>Preponderance of Evidence — Verdict.</p> <p>7. In civil cases the verdict should be determined by the preponderance of evidence. This is determined by the credibility, and not by the number, of witnesses. The burden is upon the plaintiff.</p> <p>N egligence — D amage.</p> <p>8. In a suit for damages for personal injuries alleged to be caused by negligence, the defendant is liable if (1) there has been an injury (2) due to negligence (3) of the defendant or his agents. The fact of injury does not prove that it was due to the negligence of the defendant.</p> <p>Agency — Foreman.</p> <p>9. The defendant is liable if the accident was due to the negligence of his foreman, and this must be shown by the plaintiff. A foreman may be one who is directly appointed and acts as such, or it may be one who has assumed to act as foreman, and is in discharge of such duties, as to the part of the business concerned, by the acquiescence expressed or implied by the defendant.</p> <p>Contributory Negligence-Minor.</p> <p>10. A boy may be guilty of contributory negligence. This is a question not so much of minority as individual development.</p> <p>Assumption of Risk — Minor.</p> <p>11. Assumption of risk does not apply where a boy is sent to work at a machine with which he lias no opportunity to become acquainted.</p> <p>Damages — Measure.</p> <p>12. The damages, if any, in a suit for personal injuries, are to be allowed in money, not exceeding the amount claimed, and under the Porto Rican statute are compensatory, and not punitive. The jury are entitled to take into account diminution of earning capacity, pain suffered, and any bodily deformity that has ensued.</p> <p>Damages — Corporation.</p> <p>13. Juries must be careful to give damages only where negligence of the defendant is proven. Machinery, factories, and corporations are essential to modern civilization.</p> <p>Special Charges — General Charge.</p> <p>14. A special charge is not entitled to any more weight than a general charge, and indeed-is not entitled to weight at all, except in connection with the general charge.</p> <p>Ordinary Care — Boy.</p> <p>15. In a suit by a boy for personal injury, the plaintiff must use the care which hoys of his age of ordinary prudence .would use. Persons employing children must take into account their lack of maturity.</p> <p>Dangerous Machinery — Instructions.</p> <p>16. It is the duty of persons employing dangerous machinery to instruct their employees in the use of it.</p> <p>Machinery — Dangerous.</p> <p>17. A machine for desiccating pineapple peelings is not dangerous ;per se because it will injure one’s hand if pushed down into it.</p> <p>Verdicts.</p> <p>18. Forms of verdict for plaintiff and for defendant in damage suits given.</p>

<p>On Sentencing a Female Pkisoneb..</p> <p>Woman Criminal — Clemency.</p> <p>1. The court will exercise clemency towards a woman defendant pleading guilty, where the offense is one which in any way is' due to her sex or weakness; but fraudulently cashing a money order is not of this class.</p> <p>Change of Plea.</p> <p>2. Although the defendant had already changed her plea from not guilty to guilty, the court will permit her, before sentence is pronounced, to change it back again to' not guilty, and stand trial.</p>

<p>'As to Physical Examination.</p> <p>Physical Examination — Precedent.</p> <p>1. The fact that the court had previously by consent ordered a physical examination of the defendant at the request of the plaintiff is not to he considered a precedent in another case, when the matter is opposed.</p> <p>State Decisions — Not Controlling.</p> <p>2. The fact that state decisions authorize physical examination is not controlling upon Federal courts.</p> <p>Physical Examination — Federal Practice.</p> <p>3. The Federal rule is that the court cannot order a plaintiff in an action for personal injuries to submit to a surgical examination in advance of the trial, and the same principle applies to an application for such examination, where it is alleged that the injury has made the plaintiff an idiot.</p> <p>District Court of Porto Rico — Constitution.</p> <p>4. The fact that the district court of the United States for Porto Rico is created by a special act of Congress, and not by the Constitution of the United States, does not aifect its general powers as to rules of practice. Difference of origin makes no difference in the powers which are expressly granted.</p>

<p>On Demdbrei:.</p> <p>Automobile Accident — Parties.</p> <p>1. Where the plaintiff is injured by an automobile running into one from which he is taking an article belonging to him, the owner of the automobile is not a necessary party.</p> <p>Practice — Costs.</p> <p>2. The terms will usually be imposed upon sustaining a second demurrer, but this is discretionary with the court.</p>

<p>On Motion at Close of Evidence.</p> <p>Practice — Beiated Motion.</p> <p>1. Where there is a substitution, without objection of heirs, for a deceased defendant, the motion will not be entertained at the close of the evidence to dismiss the case because the acceptance of the estate is not shown.</p> <p>Weight of Evidence.</p> <p>2. The weight of evidence is for the jury, and the court will not entertain a motion based otherwise.</p>

<p>On Motion fob New Trial.</p> <p>Practice — Translation.</p> <p>1. In the Federal district court for Porto Rico, proceedings, including affidavits in aid of new trial, must he translated, or they cannot be considered.</p> <p>New Trial — Newly Discovered Evidence.</p> <p>2. Upon application for a new trial on the ground of newly discovered evidence, it must be shown that the evidence sent up is newly discovered, could not have been discovered by due diligence in time for the first trial, and that it would probably affect the result of the new trial if granted.</p> <p>Surprise — Testimony of Witness.</p> <p>3. The fact that a witness going on the stand testifies differently from what he was expected to testify may cause surprise to counsel, but is not of itself a ground for granting a new trial, if there is otherwise evidence of what he was introduced to prove.</p> <p>Court — Jury.</p> <p>4. The weight of the evidence is for the jury; and that the court might not have rendered the same decision as the jury on the question of fact is not of itself ground for a new trial.</p> <p>Practice — Intimidation.</p> <p>5. Intimidation, by one party, of a witness who is not used by the other party, is not ground for granting a new trial, but the matter will be investigated by the court.</p>

<p>As to Procedure in Taxing Costs.</p> <p>Federal Practice — Local Law.</p> <p>1. Under § 914 of the Revised Statutes of the United States, U. S. Com. Stat. 1901, p. 684 the practice in the Federal court in Porto Rico, as well as elsewhere, conforms in many respects to that of the state in which the court is held.</p> <p>Same — Costs.</p> <p>2. Federal courts, however, make up one system, and the conformity provisions do not cover costs. If the method of taxing costs is not prescribed by the rule of court, it is nevertheless not controlled by any local statute, and is left to the practice of the Federal court.</p> <p>Cost Bill — -Taxing.</p> <p>3. The items making up the costs in a suit in the Federal court of Porto Rico must be presented promptly, but need not be verified by affidavit.</p>

<p>Immigration Law.</p> <p>Immigration Law — Act of Ship.</p> <p>1. The captain of a ship is, so far as concerns the immigration law, responsible for the acts of his officers in the discharge of the ship’s duties, whether he personally knows of them or not.</p> <p>Information — Surplusage.</p> <p>2. Where an information brought by the district attorney alleges an offense, averments not required by statute will be treated as sur-plusage, and need not be proved. The district attorney cannot add to an offense.</p> <p>Fine — -Minimum.</p> <p>3. Under the circumstances of this case, where the captain did not personally participate, and no serious results followed, a minimum fine is imposed.</p>

<p>In the Matter of Rule to Snow Cause Issued against Francisco Torres.</p> <p>Contempt — Evidence.</p> <p>1. On hearing the evidence as to alleged intimidation of witnesses, the court is guided, as in other cases, by the character and demeanor of witnesses personally brought before it, and fines accordingly.</p> <p>Witnesses — Violating the Rule.</p> <p>2. The fact that witnesses violate the rule by conversing about the case is a contempt of court, and will be treated accordingly.</p> <p>Same — Reprimand.</p> <p>3. Where violating the rule came before the court for the first time, it reprimanded and warned the offenders, deeming more unnecessary.</p>

<p>On Motion TOR New Trial.</p> <p>New Trial — New Evidence.</p> <p>1. It is not the production of a new witness as to facts already testified to, but the production of new facts which have not been testified to, that is the ground for granting a new trial from newly discovered evidence.</p> <p>Confusion of Jury — Preponderance of Evidence.</p> <p>2. The court will not entertain evidence of what occurred in the jury room, except as to matters violating the juror’s oath. Affidavit that jurors misunderstood a material fact is another way of saying that the plaintiff did not clearly make out his case, and such affidavit will not be considered by the court.</p>

<p>On Certifícate of Reversal.</p> <p>Practice — New Trial on Reversal.</p> <p>Where the Supreme Court reverses a case tried upon the facts, the case will be set down for a jury trial. No Federal court can, except by consent, dispose of facts without a jury.</p>

<p>Application fob New Teial.</p> <p>New Trial — Verdict.</p> <p>1. The court will not set aside a verdict, unless its amount or nature is such as to shock the conscience.</p> <p>Same — New Evidence.</p> <p>2. The discovery, after trial, of a stock exchange rule governing the sale sued upon, will not be a ground for granting a new trial, because, if material, it was an element of the contract, and so is a question of pleading, rather than evidence.</p>

<p>As to Treble Damages.</p> <p>Practice — Treble Damages.</p> <p>1. Under tbe Porto Rican Code as to damages from trespass, the jury is to find the actual damages; and it is discretionary with the court to treble the damages in the judgment.</p> <p>.Same — When Allowed.</p> <p>2. Where no matters of aggravation are shown, the court will not treble the damages.</p>

<p>Lease of Receivership Property.</p> <p>Receivership — Lease.</p> <p>1. Where reorganization plans have fallen through, and all parties in interest make competitive propositions to lease the entire receivership property, the court will treat that plan as agreed to, and act accordingly.</p> <p>Receivership — Temporary.</p> <p>2. Receivership does not exist as an independent status of property. Its object is to keep the fund intact until normal conditions return.</p> <p>Receivership of Sugar Central — Second Year.</p> <p>3. Where a receiver is without money to cultivate for another crop, the court will direct him to lease the property to best advantage.</p> <p>Lease — Creditors and Stockholders.</p> <p>4. Where an offer is made by stockholders, and the bondholders follow with one of substantially the same terms, both sets of parties having the ability to carry out their propositions, the court will accept that first made.</p> <p>Receivership — Lease by Receiver.</p> <p>5. The court will not terminate a receivership by a lease, but direct the receiver to supervise the carrying out of such lease, and reserve the right to terminate the lease if the net proceeds are not sufficient to pay the interest accruing on the bonds.</p>

<p>Injunction as to Right of Wat.</p> <p>Right of Way — Estoppel.</p> <p>1. A party claiming to hold land under a railroad right of way cannot deny the fact that it is a right of way. This question can only be raised by the government or other grantor of the railroad.</p> <p>Way of Necessity — Injunction.</p> <p>2. Where the right of the complainant is properly denied in the answer, an injunction will not be retained until the plaintiff can establish his right on the law side of the court. But the injunction will be retained a few days to enable the complainant to obtain some other outlet.</p>

<p>Application pob Injunction.</p> <p>Receivership — Injunction.</p> <p>1. Qucere, whether one who has obtained a consideration for granting a right of way can afterwards enjoin his grantee from exercising it.</p> <p>Injunction — Inconveni ence.</p> <p>2. Where there is an application to enjoin the cutting of a right of way, and the work has been five sixths done, the court will see on which side the balance of inconvenience lies. If granting the injunction will much impede the receiver and not greatly aid the petitioner, the application will be denied.</p> <p>Damages — Law.</p> <p>3. On such an application the court will not consider the matter of damages, but remit the petitioner to his rights on the law side of the court.</p>

<p>On Motion fob New Tkial.</p> <p>New Trial — Juror.</p> <p>1. The fact that a juror is said to have considered a verdict for defendant necessitated by the freedom of the press will not he considered by the court, particularly when the juror denies it.</p> <p>Matters Not at Issue — Effect on Jury.</p> <p>2. The fact that the court inadvertently gave a mistaken charge as to the pleadings will not be considered, when the charge was subsequently corrected by the court.</p> <p>Juror — Brother as Witness.</p> <p>3. Objection to the examination of a witness who is a brother of a juror is no reason for asking the court to set aside a verdict.</p> <p>Bias of Juror — When Objected to.</p> <p>4. When a juror is by his conduct shown to be biased against a party, objection should be taken immediately; but where the bias is of such a nature that the court is satisfied that it existed from the beginning, the result is that the party has not had a fair trial, and the verdict against him will be set aside.</p>

<p>On Motion to Quash Summons.</p> <p>Service — Idem Sonans.</p> <p>It is not improper to use initials in a return for service, when the return otherwise shows that the party is the one named in the writ. And “Mehrhofi” is idem sonans with “Meherhoif.”</p> <p>Note. — On the question of the use of initials instead of Christian name in publication of process, see note in 28 L.R.A. (N.S.) 436.</p> <p>As to the applicability of the doctrine of idem sonans to substituted or constructive service of process, see note in 30 L.R.A. (N.S.) 122.</p>

<p>On Motion to Strike Amendment.</p> <p>Practice — Beginning of Suit.</p> <p>The statute of limitations does not run during the time that there is no judge of the district court, when a complaint is filed which is to be in a suit in forma pauperis. As only the judge can make an order allowing such a suit, the time cannot be said to run when there is no judge to make the order.</p>

<p>On Objections to Depositions.</p> <p>Evidence — Agency.</p> <p>1. Where a material question in the case is one of agency, a witness cannot state the conclusion of law that he was an agent.</p> <p>Same — Mental Operation.</p> <p>2. Mental operations, such as having no doubt and there being or not collusion, cannot be testified to directly.</p> <p>Same — Payment.</p> <p>3. The witness can testify that the money was the full amount to which plaintiff was entitled. This is a statement of fact, and not a conclusion of law.</p> <p>Same — Secondary.</p> <p>4. Secondary evidence cannot he used without accounting for the absence of primary evidence.</p> <p>Same — Responsive.</p> <p>5. A witness cannot volunteer statements which are not responsive to the interrogatory asked.</p>

<p>In Mattee of Amendment of Answee of Nonconsenting Paetneb.</p> <p>Bankruptcy — Amendment.</p> <p>1. Bankruptcy proceedings are either at law or in equity, and the power of the court to allow proper amendments is inherent. This is part of the power to speed the proceedings.</p> <p>Amendment — Substitution.</p> <p>2. An amendment may be made by substituting a paper which reduces long and involved answers and affidavits into regular form. In such case, terms will not be imposed, but time to reply will be given.</p> <p>Bankruptcy Law — Essence.</p> <p>3. The substance of a proceeding must be looked to in bankruptcy, and not its form. The underlying principle of the law is to reach an issue as to bankruptcy, and afterwards to collect and distribute assets expeditiously.</p>

<p>On Motion to Require Payment of Costs.</p> <p>New Trial — Costs of First.</p> <p>1. It is common practice to refuse a new trial until the costs of the first trial are paid.</p> <p>New Trial — Reversal.</p> <p>2. It is not proper for the district court, upon a reversal, by the Supreme Court, to refuse trial ordered by the mandate until the costs of the original trial are paid. Where the mandate directs execution to issue for costs, the lower court cannot substitute any other remedy.</p> <p>Foreigner — Future Costs.</p> <p>3. A foreign resident is not within the rule requiring nonresidents or foreign corporations to make deposit or give security for costs; hut any plaintiff can be required, under the local Federal court rule, to make a deposit from time to time to cover costs which he creates.</p>

<p>Bankruptcy — Liquidators.</p> <p>It being the policy of the bankruptcy law to determine matters expeditiously, liquidators appointed under the Porto Rican statute will not be struck out, after they have become parties to the proceeding, until it is shown that their interest is otherwise represented.</p>

<p>On Exceptions to Libel.</p> <p>Admiralty — General Exception.</p> <p>1. A general exception not alleging a particular defect will, like a general demurrer, not be considered by tbe court.</p> <p>Admiralty — Federal Employers’ Liability Act.</p> <p>2. The Federal employers’ liability act will not be held to change admiralty rules, except where such change expressly appears to be intended.</p> <p>Personal Injury — Cause.</p> <p>3. A libel must show that the injury complained of was caused by the ship or its agents. In ease of doubt the libel will be construed against the pleader.</p> <p>Admiralty — Contributory Negligence.</p> <p>4. Contributory negligence in admiralty comes up more properly upon the evidence than the pleadings, and is not necessarily a complete defense.</p> <p>Admiralty — Assumption of Risk.</p> <p>5. A member or employee of longshoremen unloading the ship by contract cannot hold the ship responsible for damages caused by another longshoreman or employee.</p> <p>Ship — Safe Place.</p> <p>6. It is the duty of the master and owner to provide a safe place for their employees to work; but leaving the hatches open during daylight, to sweeten the ship, does not violate this rule.</p> <p>Cooper — Ship Negligence.</p> <p>7. If a cooper employed by longshoremen to repair a box is injured by fault of the ship or a sailor, he can hold the ship responsible; secus as to negligence of other longshoremen.</p> <p>Pleading — N egligence.</p> <p>8. A general allegation of negligence on the part of the ship or its officers is not sufficient. Negligence is a conclusion of law, and facts showing it must be pleaded.</p>

<p>Instructions to the Jury as to Tax Redemption.</p> <p>Duties of Jury.</p> <p>1. The general duties of jurors in regard to evidence in a ease defined.</p> <p>Jury — Law.</p> <p>2. The jury takes the law from the court, not from the attorneys.</p> <p>Tax Sale — Tender.</p> <p>3. The law of Porto Rico is that, after a tax sale, tender of redemption money must be made in person, and, if refused, the money verified by the registrar of property, must be paid over to that officer, and that thereupon the former owner is restored to his former right.</p> <p>Redemption — Tender.</p> <p>4. If the purchaser declines the tender on the ground that it is not made by a party properly authorized, he states his case upon that fact, and must abide the consequences.</p> <p>Tender — Agent.</p> <p>5. It is not necessary that the agent have a formal power of attorney in order to make the tender valid. Any authorization, as by letter, is sufficient.</p> <p>Redemption' — -Withdrawal of Tender.</p> <p>6. If, after making payment to the registrar, the redemptioner withdraws the money deposited, this cancels the tender and payment. The owner cannot have the land and the money too.</p> <p>Ejectment-Rental Value.</p> <p>7. While mesne profits are usually allowed upon recovery of land, this is not essential, and, if not properly proved, should not be included in the verdict.</p>

<p>Instructions to the Jury as to Life Insurance Suit.</p> <p>Jury — Duties.</p> <p>1. The general duties of juries in civil eases defined.</p> <p>Burden of Proof — Defenses.</p> <p>2. The burden rests upon the plaintiff to prove his case; but when that is done, and the defendant sets up affirmative defenses, the burden is shifted to him to prove them.</p> <p>Note. — On the question of innocent misrepresentation by insured as to health, see note in 53 L.R.A. 193. And as to the effect of honest mistake in answer as to health of insured, warranted by him to be true, see note in 15 L.R.A. (N.S.) 1277.</p> <p>Insurance — Examination.</p> <p>3. If, upon an application for life insurance, some other than the real applicant is examined, this is a fraud, and avoids the policy issued.</p> <p>W arranty — Tuberculosis.</p> <p>4. If, under the warranties against tuberculosis in the application, the applicant or any member of his family is so afflicted, whether the applicant knows it or not, this avoids the policy.</p>

<p>On Motion to Dismiss Injunction.</p> <p>Due Process of Law — Notice and Hearing.</p> <p>1. Notice and hearing are of the very essence of due process of law, and a summary proceeding which does not afford a day. in court presents a Federal question.</p> <p>Federal Court — State Procedure.</p> <p>2. A Federal court has jurisdiction over the parties to a suit in the Federal court, and in a proper case will act, by injunction or otherwise, against them.</p> <p>United States Court — Proceedings in State Court.</p> <p>3. Revised Statutes of the United States, § 720, prohibits injunction to stay proceedings in a state court, whether these proceedings be before or after judgment.</p> <p>Courts — What are.</p> <p>4. Such officials as commissioners and public officers are not state courts within the meaning of § 720 of the Revised Statutes, U. S. Comp. Stat. 1901, p. 581; but a proceeding to enjoin a marshal of the Porto Rican court from proceeding to enforce a decree of the Porto Rican court under the mortgage law is within the purview of this section.</p>

<p>On Claim foe Peesonal Injubies.</p> <p>Admiralty — Hatches.</p> <p>1. If a stevedore knew that hatches were open, and used them, he cannot set up their being open as being negligence.</p> <p>Stevedore — Common Foreman.</p> <p>2. A stevedore cannot hold a ship responsible for an accident caused by negligence of another stevedore acting under a common foreman with himself.</p>

<p>Retrial on Reversal.</p> <p>Mandate of Supreme Court — Rule 39.</p> <p>1. Rule 39 of the Supreme Court of the United States means that mandates shall issue thirty days from the judgment, unless, sometime during the term, the time is enlarged.</p> <p>New Trial — Local Law.</p> <p>2. The Federal practice as to new trials is independent of local legislation, and does not apply to retrial of the same case on reversal by the Supreme Court.</p> <p>Jury — Question of Fact.</p> <p>3. Where the Supreme Court sustains certain elements of appellant’s contention, and does not render any judgment disposition of the case, the case upon reversal comes back for a retrial by jury.</p>

<p>On Exceptions of the Receiver to Report of the Standing Master.</p> <p>Receiver — Exceptions.</p> <p>1. A receiver may file objections to claims which he deems improper, and, if these are disallowed, may except to the master’s report before the court.</p> <p>Lien — Refacción.</p> <p>2. An unmade article cannot he mortgaged except when this is allowed by legislation. A contract may have the law of refacción read into it without using the word “refacción.”</p> <p>Refacción — Postponement.</p> <p>3. If the court through its receiver takes charge of property subject to a refacción contract, and uses it for receivership purposes, this is not an abolition, but a postponement, of refacción or equivalent rights.</p> <p>Receiver — Presumption.</p> <p>4. In a case where the action of a receiver or his counsel cannot be equally explained by devotion to his duties, or by some personal interest of his own, the court will presume in favor of the receiver.</p>

<p>Instructions to the jubt.</p> <p>Plaintiff — Burden.</p> <p>1. The plaintiff must make out his case by a preponderance of evidence to the reasonable satisfaction of the jury. Credibility is entirely for the jury.</p> <p>Partnership — W ithdrawal.</p> <p>2.A partner cannot withdraw assets from the firm to the injury of creditors.</p> <p>Partnership — Common Law and Civil Law.</p> <p>3.The civil law in regard to partnership, as in regard to many other things, has more official supervision than has the common law. The commercial law, part of the civil law, prevails in Porto Rico, and provides for the special partnership sociedad en comandita, abbreviated S. en C., which is not known to the common law.</p> <p>Sociedad en Comandita.</p> <p>4. Where sociedad en comandita is registered, changes subsequently made, which are not registered, do not affect outsiders who are ignorant of the changes.</p> <p>Same — Not Relying on the Register.</p> <p>5. If creditors know of changes in the partnership, they are not protected even if these changes are not noted in the mercantile register.</p> <p>Trustee — Permission.</p> <p>6. The details of the bankruptcy administration need not be proved. If the schedules are in evidence, undisputed, and the existence of the trustee is not denied, a suit by the trustee is properly brought.</p> <p>Partnership — Existing Creditors.</p> <p>7. Future creditors have their remedy against a partner withdrawing money without notation on the mercantile register, and not merely those who were such at the time of this withdrawal.</p> <p>Partnership — Third Parties.</p> <p>8. The Commercial Code protects all creditors who did not know of change in the partnership.</p> <p>Partner — Individual.</p> <p>9. If the transaction complained of was an individual one, it does not affect creditors of the firm. Seous if it covered firm assets.</p>

<p>On Voluntary Petition in Bankruptcy.</p> <p>Bankruptcy — Limited Partnerships.</p> <p>1. The sociedad en comandita under the Porto Rican Law is not in all respects a limited partnership whose capital subscribed is alone responsible for the debts. Whether it is to be treated as a corporation or a limited partnership is not raised by the pleadings.</p> <p>Partnership — Nonjoining Partner.</p> <p>2. Where a petition in bankruptcy is filed by one partner, the non-joining partner is entitled to notice, whether it be a limited or a general partnership. As to the nonjoining partner, it is a voluntary proceeding, and debts to the amount of $1,000 must be alleged and proved.</p> <p>Partnership — Liquidators.</p> <p>3. Liquidation under Porto Rican law is different from assignment for the benefit of creditors. The liquidators are not the successors, but rather take the place, of a partnership. If they file an answer to a petition in bankruptcy by a partner, they will be heard.</p> <p>Public Document — Private Document.</p> <p>4. While papers not public do not under the Porto Rican Civil Code bind third persons, they do bind the parties themselves. It is complete if all parties sign except one who does not have to sign.</p> <p>Partnership — Dissolution.</p> <p>5. The nonconsenting partner may contest the allegation of insolvency, the indebtedness of $1,000, and whether the partnership has been dissolved.</p> <p>Insolvency — Admission.</p> <p>6. Where insolvency is admitted by the pleadings, it need not be proved.</p> <p>Amount of Indebtedness — Burden.</p> <p>7. The burden is on the petitioner to prove as part of his ease that the debts amount to $1,000, and if this is not done by a preponderance of evidence, the petition will be dismissed.</p> <p>Assignment — Voluntary Bankruptcy.</p> <p>8. A debtor who has constituted liquidators under the Porto Rican Code has substituted liquidators in his stead for the purpose of winding up his business, and cannot afterwards, in the absence of fraud, file a petition in bankruptcy. A creditor, however, is in a different position.</p>

<p>On Motion to Revive against Personal Representative.</p> <p>Practice — Abatement.</p> <p>1. Under the Porto Rican procedure any cause survives the death of a defendant, and may be revived.</p> <p>Heir — Liability.</p> <p>2. Under the civil law an heir accepting an estate without benefit of inventory is liable for all charges on the estate. This includes not only contractual but obligations arising from tort.</p> <p>Survival — Personal Obligations.</p> <p>3. Where a man owns and operates a railroad, liability for tort by his employees survives his death.</p>

<p>Foreign Title — Proof.</p> <p>1. Title is a question of law, and must be decided by the court. The fact that each side introduces illegal proof of title does not relieve the court from its duty to decide the title according to law.</p> <p>Same — Surveyor.</p> <p>2. In Latin-Ameriean countries certificates of officials have a higher weight than at common law; but the court must be governed by proven laws, and not by certificates.</p> <p>New Trial — Limiting Issue.</p> <p>3. Quwre as to whether a Federal court upon a new trial can limit the issues to questions not settled at the first trial.</p>

<p>ON DEMURRER TO PLEA, ETC.</p> <p>Negligence — Federal Practice.</p> <p>1. Under the Federal practice, negligence and contributory negligence are essentially matters for the jury.</p> <p>Electric Current — Company Liable.</p> <p>2. If an electric current comes from a telephone wire, the telephone employee injured need not look further than the telephone company, whatever may be the rights over of the telephone company against the electric company.</p> <p>Employee — Public.</p> <p>3. The rights of an employee injured by a wire of his employer are different from those of the public.</p> <p>Assumption of Risk — Extent.</p> <p>4. An employee knowing the task set before him assumes the ordinary risks of the business, but the non-insulation of another company's electric wire is not within the risks assumed by the telephone employee.</p> <p>Practice — Law in the Complaint.</p> <p>5. It is not- necessary to state legal propositions in a complaint, hut if short it is discretionary whether to strike them out or no't.</p> <p>Note. — The authorities on a servant’s assumption of obvious risks of hazardous employment are collated in a note in 1 L.R.A.(N.S.) 272. And on the question of servant’s assumption of risk of danger imperfectly appreciated, see note in 4 L.R.A. (N.S.) 990. And as to the servant’s-assumption of risk from latent danger or defect, see note in 17 L.R.A. (N.S.) 76.</p>

<p>On Motion to Dismiss von Want of Jurisdiction of Pabtnebship,</p> <p>Federal Practice — Partnership.</p> <p>1. For the purposes of Federal jurisdiction, a partnership under the civil law is not to be regarded as one person. The citizenship of the individual members controls.</p> <p>Note. — On the question whether a partnership may sue or be sued in the firm name, see note in 29 L.R.A. (N.S.) 282.</p> <p>Federal Practice — Suit against Partners.</p> <p>2. While there are cases under the Civil Code where a partnership may be sued as such, this does not prevent a suit against individuals merely because they are also partners.</p> <p>Partnership — Registration.</p> <p>3. Under the civil law, in Porto Rico, so far as concerns the public, a partnership is that which is registered in the Commercial Register. A change of partners not so recorded does not bind third parties.</p> <p>Partnership — Partners.</p> <p>4. It is true that for the purpose of the bankruptcy law a partnership is considered an entity, but this does not prevent suit against individuals in other .cases.</p>

<p>On Demueber.</p> <p>Admiralty^ — Common Law.</p> <p>L Tho fact that a claim may exist in admiralty does not take away the common-law remedy.</p> <p>General Demurrer.</p> <p>2. Under the Federal practice a demurrer must specify the ground of objection, and a general demurrer need not be regarded.</p> <p>Departure — Revival.</p> <p>3. A suit brought on behalf of an injured man in his lifetime cannot be changed into one on behalf of his representatives under an employers’ liability act; but a suit brought on behalf of an injured man will survive to his representatives.</p>

<p>Taxes — Courtesy to Local Government.</p> <p>A Federal court will not hesitate to pass upon any point properly brought before it; but where taxes of the local government are concerned, courtesy requires such temporary adjournment as will enable the local government to take proceedings if it desires.</p>

<p>Rule to Show Cause Against Salvador Suau, Referee.</p> <p>Referee — Order to Show Cause.</p> <p>1. Where a referee is ordered to show cause why he should not take certain action, his return should be in writing.</p> <p>Referee — Order by.</p> <p>2. The orders of the referee in bankruptcy are as much orders of court within his jurisdiction as if rendered by the judge from the bench. All parties in interest must take knowledge of his actions.</p> <p>Referee’s Order — Collateral Attack.</p> <p>3. An order of the referee cannot be attacked collaterally by a motion to show cause why some other course should not be pursued. A referee’s order can be revived only by petition.</p> <p>T 'ustee’s Attorney — Fees.</p> <p>4. The amount and time of payment of attorney’s fee of the trus-toe’s attorney sliall be fixed by the referee, having regard to the condition of the estate.</p>

<p>ON Petition fob Intervention by Fajardo Sdgar Company.</p> <p>Receivership — Sale of Stock.</p> <p>1. A receivership does not dispense with any element of a contract of the bankrupt.</p> <p>Contract — Demand.</p> <p>2. A demand for payment cannot affect property in the hands of a receiver.</p> <p>Receivership — Property in Other Jurisdiction.</p> <p>3. Where there is ancillary receivership in several districts, a Federal court will not make any order as to property whose actual siiws is in another district.</p> <p>Collateral — Sale.</p> <p>4. A court will not grant permission to sell collateral, where that will increase the indebtedness of the defendant.</p> <p>Bonds — Forced Maturity.</p> <p>5. Unless bonds themselves declare that they mature upon some contingency, the court will not declare them matured because of a receivership.</p>

<p>On Exception os Oil Company to Master’s Report.</p> <p>Preference — Porto Rican Law.</p> <p>1. Oil furnished a sugar central does not, under the Porto Rican statute, give a preference or lien upon the sugar cane which is manufactured there.</p> <p>Equitable Liens.</p> <p>2. Under the rule as to current-debt fund, the expenses of operation must be paid before bonds or interest.</p> <p>Current Debt Fund — Sugar Central.</p> <p>3. The principle of reservation of current-debt fund applies to sugar centrals. Claims of this character will be sustained up to the amount shown to be diverted for interest.</p>

<p>Conste cxction ox? Contbacts and Decebes.</p> <p>Equity — Purchase Subject to Another Claim.</p> <p>1. Where a party purchases a claim, with knowledge of one already existing, he is not a bona fide purchaser for value without notice.</p> <p>Equity — Purchase of Claim in Suit.</p> <p>2. Where a claim is stated in the contract to he subject to a suit, the purchaser holds in subordination to whatever rights may be acquired by other parties in the suit.</p> <p>Lease — Title.</p> <p>3. The fact that a lease with a power of purchase was construed by the parties and courts as in effect a mortgage is binding upon all concerned.</p> <p>Equity — Substance.</p> <p>4. Equity goes to the root of a matter, and is not controlled by forms.</p> <p>Litigated Credit — Porto Rican Code.</p> <p>5. The provision of the Civil Code of Porto Rico, § 1438, as to redemption of a litigated credit at the price paid applies to legal rights under a sale of an unquestionable debt, but it does not apply to an absolute deed declared to be a mortgage. This is governed by equitable principle, and does not come within this provision of the Civil Code.</p> <p>Redemption — Tender.</p> <p>6. The provision of § 1144 of the Civil Code of Porto Rico does not necessarily apply to suits in equity to establish a mortgage. A tender in equity is governed by special equity rule.</p> <p>Tender — Imperfect.</p> <p>7. An offer to tender, under the Porto Rican Code, is not equivalent to an offer to do equity.</p> <p>Tender — Keeping Alive.</p> <p>8. While generally the amount of a tender must he kept alive by deposit, this is not necessary where it is impossible to know the amount; and in such case an offer to do equity, in the bill, is sufficient.</p> <p>Mortgage — Redemption.</p> <p>9. A redemption from an instrument declared to be a mortgage must be of the amount due, no matter whether that is the amount which the subpurchaser may have promised or not.</p>

<p>Application fok New Trial.</p> <p>New Trial — Grounds.</p> <p>Where it appears in a criminal case that a material witness is charged with perjury, and he in turn charges his attorney with misconduct in a civil case in which the application for a new trial is had, the court in the exercise of its discretion will grant a new trial in the case.</p>

<p>Osr Remittitub as Aitecting Wbit oe Ebbok.</p> <p>Writ of Error — Jurisdictional Amount.</p> <p>1. The jurisdictional amount for the appeal under § 244 of the Judicial Code of the United States is a sum exceeding $5,000, exclusive of costs.</p> <p>Remittitur.</p> <p>2. Ordinarily the plaintiff may remit a portion of Ms judgment, and the court may, within its jurisdiction, permit a plaintiff to remit a portion of his judgment, and the action of the court below will not be reviewed by the Supreme Court.</p> <p>Verdict — Instructions as .to Form.</p> <p>3. The court may instruct the jury as to remodeling the form of the verdict, provided that the substance is not changed. Where the verdict as brought in calls for interest, the court may instruct the jury to add from what date they intend the interest to run.</p> <p>Judgment — Interest.</p> <p>4. Where the verdict of the jury is for an amount and interest, and motions are made by plaintiff recognizing this amount, the court will not afterwards permit the plaintiff to remit a portion so as to defeat a writ of error.</p> <p>Pleadings — Interest.</p> <p>5. Semble, that a complaint for $5,000 will support a verdict for that amount and interest from date of filing the complaint.</p> <p>Writ of Error — Interest.</p> <p>6. Semble, that a writ of error will lie to the Supreme Court from judgment for $5,000, if taken after interest begins to run.</p>

<p>Motion- to Set Aside Judgment.</p> <p>Practice — Setting Aside Judgment by Default.</p> <p>1. An application to set aside a judgment by default follows the principles of a motion for new trial, and this under U. 8. Rev. Stat. § 726, U. S. Comp. Stat. 1901, p. 584, is governed by Federal, and not by local, practice.</p> <p>Setting' Aside Judgment — Excusable Neglect.</p> <p>2. In an application to set aside a judgment by default, there must be shown reasonable diligence. The fact that a client, alleged to be not accessible, lived in the country accessible in two hours from the place of trial, does not present such a ease.</p> <p>Same — Good Defense.</p> <p>3. Besides proper excuse, the application must show that there might be a good defense. Setting up defects in an instrument executed by the defendant would allow him to take advantage of his own wrong, and would not come within the rule.</p>

<p>Bill for Specific Performance.</p> <p>Titles — Porto Rican Ganancial Law — Lex Rei Sita;.</p> <p>1. Governs questions of land titles and includes the married women’s law. This in Porto Rico is covered by the Civil Code, §§ 1316, 1327, and 1328, as to ganancial property.</p> <p>Same — Nonresidence.</p> <p>2. A married woman owning property in Porto Rico is, as to it, governed by the local married women’s law, whether she resides in Porto Rico or elsewhere.</p> <p>Married Women — Purchase by a Husband.</p> <p>3. The title acquired by a married woman under a purchase by her husband is subject to the terms of that purchase. She is not, as to it, a third party under the Porto Eican law, or a bona fide purchaser under the principles of equity.</p> <p>Purchase of Several Tracts — Construed Together.</p> <p>4. In equity, where the transaction is satisfactorily shown to have been the purchase of one piece of land by a sugar central for the purpose of running a railroad aeross this and another piece of land, in order to reach still other territory, the transaction will be construed as a whole, and the omission to sign a right of way over part of the property in question will be remedied by a decree for a specific performance.</p> <p>Specific Performance — Damages.</p> <p>5. Specific performance will not lie unless damages have accrued; but to prevent the equitable remedy for such performance, the remedy at law for damages must be adequate and give a substantial equivalent for what is asked in equity. Cutting a railroad into two disconnected parts is not susceptible of adequate damages.</p> <p>Same — Other Eoute.</p> <p>6. A contract for connecting two pieces of property by a railroad will not be carried out by compelling a party to take the railroad outside of both properties, in order to pass from one to the other, particularly where the outside road would run over properties of other parties.</p> <p>Same — Elements.</p> <p>7.In order to secure specific performance the contract must have a certain end, be fair, concern real property, and the complainant must have performed his part. It is less a matter of right in the complainant than of discretion in the court.. Great accuracy of averment and proof are necessary.</p> <p>Specific Performance — Performance by Complainant.</p> <p>8.There must be a mutuality of obligation and performance, but if the complainant has, under the circumstances of the case, satisfactorily done what the contract requires of him, he will be granted relief against the other party to the contract.</p>

<p>On Objection to Papees as Evidence.</p> <p>Constitutional Law — Fourth and Fifth Amendments to the Constitution.</p> <p>1. The 4th and 5th Amendments to the Constitution of the United States, being a part of the Bill of Rights, apply to people residing in territory annexed to the United States.</p> <p>Same — Spaniards.</p> <p>2. All privileges of citizens are not extended to foreigners, but under the treaty of Paris, by which Porto Rico was annexed, the above provisions of the Bill of Rights apply to Spaniards in Porto Rico.</p> <p>Constitutional Law — Defendant’s Papers.</p> <p>3. The court will not stop a trial in order to hear a collateral issue as to the source of the testimony offered.</p> <p>Same — Procedure.</p> <p>4. Where a defendant’s papers have been improperly seized, the court will order them returned upon his making a proper application outside of the case in which it is proposed to use them in evidence.</p> <p>Same — Procedure.</p> <p>5. The court would have power to compel the district attorney to return papers in a proper ease, but this will not be exercised if invoked merely by objection to evidence when the papers are offered in the main suit. In the shape so presented, the question does not raise a constitutional question, but merely one of orderly procedure.</p>

<p>On Objection to Evidence.</p> <p>Constitutional Law — Bill of Rights.</p> <p>1.The Bill of Rights in the first Amendments to the Constitution applies to Porto Rico.</p> <p>Same — Porto Ricans.</p> <p>2.Personal rights secured by these Amendments apply to Porto Ricans. Por the purposes of the Bill of Rights, Porto Ricans are Americans.</p> <p>Evidence — Source.</p> <p>3.Upon seasonable application the court will order the return to a defendant of papers improperly seized, but will not stop in the course of a trial to inquire into the source of evidence offered. At such time all that can be determined is whether the evidence is competent, relevant, or material.</p>

<p>Exception to Master’s Report.</p> <p>Receivership — Exceptions.</p> <p>1. A receiver can except before a master, and pursue any remedy in regard to claims filed against the estate; but he cannot except to a ruling of the court appointing him, or take any action that will affect the rights of the plaintiff and defendant in the main case.</p> <p>Lien — Enforcement.</p> <p>2. The question of how to enforce a lien reported by the master will not be considered on exceptions, when the master has not reported any special method of procedure.</p>

<p>Ok Motton for New 'Triae.</p> <p>Bankruptcy — Sociedad en Comandita.</p> <p>1. Tlie bankruptcy law was not written with the form of partnership called “sociedad en comandita” in mind, hut this law covers such form of partnership, and will he construed so as to apply to this local institution.</p> <p>Bankruptcy.</p> <p>2. Where there is a sociedad en comandita, and its liquidation has not been formally made to appear, the comanditario cannot withdraw his contribution from the partnership fund. The questions as to liability for subsequent debts, and the application of the money recovered, are not before the court.</p>

<p>Bail After Verdict.</p> <p>Criminal Law — Bail After Verdict.</p> <p>1. An appearance bond is for the defendant’s appearance from day to day until final adjudication, and this is exhausted upon rendition of verdict. The old bond does not apply between verdict and sentence.</p> <p>Same — Bail After Verdict.</p> <p>2. Bail will not ordinarily be admitted for the interval between verdict and judgment. No constitutional right is involved.</p> <p>Same — Local Law.</p> <p>3. Semblé, that the requirement of the local law for an interval between verdict and sentence does not apply to Federal courts. Defendants can, under any circumstances, waive such right, if it exist; and in the ease at bar they did so, of record.</p>

<p>The Court’s Instructions to the Jury.</p> <p>Lottery Tickets — Conspiracy to Sell.</p> <p>1. Under §§ 37 and 237 of the Penal Code of the United States, it is unlawful for one to bring into the United States, for the purposes of sale, any lottery ticket; and each party to such conspiracy is subject to tine and imprisonment. This applies to conspiring to bring lottery tickets into Porto Rico from San Domingo.</p> <p>Criminal Law — Court and Jury.</p> <p>2. A jury is as much a part of the court .as a judge, for the time in which they serve. The jury decides matters of fact, the court matters of law, both of which are involved in every case.</p> <p>Criminal Law — Conspiracy.</p> <p>3. While no formal agreement is necessary to constitute a conspiracy, there must be an intentional participation in the acts with a view to the furtherance of the common design.</p> <p>Criminal Law — Measure of Proof.</p> <p>4. While in a civil case a slight preponderance of testimony will decide, in a criminal proceeding a man cannot be convicted unless the jury is convinced beyond a reasonable doubt by the 'evidence. This doubt does not mean a strained conjecture, but an actual mental hesitation, due to an insufficient or unsatisfactory evidence.</p> <p>Same — Evidence.</p> <p>5. Testimony in court is either by witnesses or documents, and if either is admitted by the judge, it must be considered by the jury. Tiie jury has nothing to do with the source of testimony admitted by the court.</p> <p>Same — Mutilation of Evidence.</p> <p>6. If mutilated evidence is admitted, it is for the jury to determine its weight and credibility. If a paper is so mutilated that it can still be made out, it may be considered. If it is impossible to restore it, it will not be considered. All circumstances must be taken into account.</p> <p>Same — Handwriting Expert.</p> <p>7. The court passes upon the admissibility of a witness as an expert, and the jury determines from his evidence what importance to attach to his testimony.</p> <p>Testimony — Weight.</p> <p>8. The fact that witnesses have given different testimony in other cases goes to their credibility. The jury must take all circumstances into account, and reconcile the evidence if possible. The. witnesses’ testimony may be true in some particulars and false in others. The weight is for the jury.</p> <p>Conspiracy — Crime—Testimony.</p> <p>9. It is not necessary that witnesses to a criminal case be mew of the highest standard. Such men are not usually connected, directly or indirectly, with crime.</p> <p>Accomplice — Corroboration.</p> <p>10. An accomplice is not to be believed unless he is corroborated by the evidence of other circumstances or other witnesses. Its co-operative acts, may prove conspiracy.</p> <p>Conspiracy — Overt Act.</p> <p>11. The crime of conspiracy is not now, as formerly, confined to an agreement between the conspirators, but must be evidenced k¡y some overt act of theirs carrying the conspiracy into effect.</p> <p>Same — Proof.</p> <p>12. Conspirators do not generally perform such acts in public, and the crime is often proved by circumstances and a combination of isolated incidents, having in view a common end. By conspiring the conspirators jointly assume the attribute of individuality as to the common design.</p> <p>Conspiracy — Evidence.</p> <p>13. Joint action on a material point, or collation of independent co-operative acts, may prove conspiracy.</p> <p>Conspiracy — Acts of Conspirators.</p> <p>14. Where evidence showing the existence of a conspiracy is admitted, the acts of the several conspirators may in all eases be given, in evidence against each other if done in pursuance of the common illegal object. They all make up the res gestee.</p> <p>Conspiracy — Servant.</p> <p>15. The fact that one is a servant does not prevent his being a eo-conspii'ator with his master; and in such case his acts bind his employer.</p> <p>Conspiracy — Meeting Unnecessary.</p> <p>16. It is not necessary that conspirators meet together, or even be acquainted with each other. If they conspire through a common acquaintance, the conspiracy may be complete, and the act of one is the act of all.</p> <p>Importing Lottery Tickets — Conspiracy.</p> <p>17. To carry out a conspiracy to bring lottery tickets into the United States for disposition violates the laws of the United States.</p> <p>Conspiracy — Secret Signs.</p> <p>18. The fact that signals, secret correspondence, and code words are used, would be expected, and tend to show a conspiracy.</p> <p>Importing Lottery Tickets — Elements.</p> <p>19. Importing lottery tickets from San Domingo to Porto Rico for sale would involve, among other overt acts an agreement, furnishing the San Domingo tickets in San Domingo, bringing the tickets from San Domingo by boat, landing them in Porto Rico, probably secretly, their disposition in Porto Rico, either directly or by agents and correspondents, and the accumulation of books and papers.</p> <p>Evidence — Defects.</p> <p>20. It is not to be expected that every scrap of evidence will be produced in a case; and it is sufficient if enough is shown to produce a conviction beyond a reasonable doubt.</p> <p>Criminal Case — Sympathy.</p> <p>21. Sympathy plays no part in judicial proceedings. If families are affected, this is not to be considered by the jury. It should have been considered by the parties before going into the crime charged, if the defendants have committed the crime.</p> <p>Verdict — Form.</p> <p>22. In a proceeding for conspiracy a verdict may be rendered against one in connection with another defendant, hut it is not necessary to render a verdict against all the defendants.</p>

<p>Criminal Information for Landing Chinese Seamen.</p> <p>Exclusion Law — Legislation.</p> <p>1. The policy of the United States in regard to Chinese began with the treaty of 1858. Restriction' began with the treaty of 1880, and in 3888 exclusion became the policy of the country. This has been carried out by a subsequent legislation and Department rules made thereunder.</p> <p>Seamen — Laborers.</p> <p>2. The legislation in force goes beyond the terms of the treaty with China, but this- is constitutional. The right of a nation to exclude aliens cannot be questioned.</p> <p>Aliens — Citizenship—Exclusion.</p> <p>3. .The policy of the United States has been to admit most aliens to citizenship, but as to the Chinese it has been one of exclusion, with exceptions in both eases. With immigrants in general the burden is on the government to show that exclusion is lawful; as to Chinese, the burden is on the Chinaman to show that he is within the exceptions of the exclusion law.</p> <p>Sailors — Laborers.</p> <p>4. It is an international practice that a foreign sailor is not prohibited from coming ashore temporarily, and he is not within the scope of the immigration law.</p> <p>Same — Chinese Seamen.</p> <p>5. The provisions of Federal legislation direct that Chinese persons unlawfully in the United States shall be arrested, and this applies to others than laborers. Sailors are within the prohibition.</p> <p>Chinese Sailors — Laborers.</p> <p>6. It has been held that “laborers” does not include a seaman, but he is a Chinese person within the rule requiring a master to give bond before permitting shore leave.</p>

<p>Importing Chinese Sailors.</p> <p>Exclusion Laws — Deportation.</p> <p>1. Deportation proceedings under the exclusion laws are not criminal, but civil in nature. Confinement in jail is a civil form of detention, and is not punishment.</p> <p>Same — Appeal.</p> <p>2. An appeal lies to the defendant in ten days from the decision of the United States commissioner to the district court and not to the district judge.</p> <p>Proceeding before Commissioner — Plea of Guilty.</p> <p>3. If a defendant pleads guilty he cannot appeal unless the judgment goes beyond the complaint filed in the case. Where the law authorizes judgment of removal to the country whence the defendant came, a judgment for removal to another country, to wit, to China, is so appealable.</p> <p>Same — Proceedings of Administrator.</p> <p>4. Deportation proceedings against aliens are administrative, rather than judicial, and are not covered by § 666 of the Revised Statutes, U. S. Comp. Stat. 1901, p. 401, as to trial of issues of fact. When once within the jurisdiction of the district court, the pleadings are made up anew, and the ease will be tried de novo. The commissioner, however, will ordinarily be sustained upon questions of fact, and this requires that the issues remain practically the same as below.</p> <p>Pleading — Demurrer.</p> <p>5. A demurrer interposed after a' plea will be disregarded, especially if it be a general demurrer, and not stating a distinct ground; but a demurrer would, under the authority of United States v. Cook, ante, 652, even if properly filed, be overruled.</p>

<p>Proceeding to Establish'a Creditor’s Trust.</p> <p>International Law — Riglit of Spaniards to Contract.</p> <p>.1. The treaty of Paris overrides the provision of the act of 1887 prohibiting aliens from owning land in the territories. Spaniards, whether residents of Porto Rieo or not, have the right to buy and sell lands there.</p> <p>Same — Repeal of Notarial Law.</p> <p>2. The repeal in 1906 of the notarial law by the legislation of Porto Rico did not affect transactions between Spaniards in Spain, relating to land in Porto Rico.</p> <p>Trust — Demurrer.</p> <p>3. Por the purposes of this case, the bill seeks to declare a trust in favor of the complainant, and not to set aside fraudulent conveyances.</p> <p>Bona lides — Circumstances.</p> <p>4. Good faith is presumed, and circumstances which can be interpreted one way as well as the other will be construed against the complainant as being in good faith.</p> <p>Same — Mortgage Law.</p> <p>5. Section 40 of the Mortgage Law, as to defects in a conveyance, applies to fraudulent conveyances, and not to a bill to establish a trust.</p> <p>Lis Pendens — Piling Bill.</p> <p>6. The filing of a bill in equity does not in Porto Rico constitute a lis pendens until such notice is registered in the deed registry.</p> <p>Mortgage Law — Equity.</p> <p>7. The Mortgage Law is the law of real property in Porto Rico. Its principles are in many respects those of a court of equity. Such a court does not interfere with this law, but acts upon the persons holding title under it.</p> <p>Mortgage Law — Effect of Notices.</p> <p>8. The Mortgage Law prohibits the record of deeds inconsistent with the recorded title, but authorizes registry of cautionary notices, which legal proceedings may determine to supersede the recorded titles.</p> <p>Registry — -Real and Personal Rights.</p> <p>9. The right arising under a judgment is personal, like that under attachment, and not a real right.</p> <p>Equity — Judgment Creditor.</p> <p>10. The same principle applies in equity, which subordinates a subsequent docketed judgment to an equitable lien in rem.</p> <p>Lis Pendens — When Real Right.</p> <p>11. When the lis pendens concerns real property it is a real right, and affects a bona fide purchaser and the similar parties known as terceros under the Porto Rico Civil Code.</p> <p>Fraud — Circumstances.</p> <p>12. Fraud is generally shown by circumstantial evidence, but is not presumed, — especially when these circumstances have another reasonable explanation.</p>

<p>Instructions to Venire.</p> <p>Jury Duty.</p> <p>1. Jury service is one of the duties of citizenship, and the policy of Federal laws is to secure picked men.</p> <p>Jury Service — Limitation.</p> <p>2. The court will, so far as possible, limit the hours and days of jury service so as to afford the least inconvenience to jurymen.</p> <p>Juries — Local Law.</p> <p>3. The law as to jury service and its incidents in Federal courts is found in the Federal statutes, and is not controlled by the local practice. However, so far as discretionary with the court, local exemptions will be followed, as presenting a strong analogy.</p> <p>Jurors — Excuses.</p> <p>4. A juror will not be excused for trivial cause, but only when material injury to his property or that under his charge is threatened, or his own health or that of his family require his. absence.</p> <p>Jurors — Incompetence.</p> <p>5. Those who cannot understand English, who are over sixty-five or under twenty-one years of age, or have been convicted of malfeasance, felony, or other high crime, are incompetent to serve in the Federal court of Porto Rico.</p> <p>Jurors — Exemptions.</p> <p>6. The exemptions provided in the Criminal Code of Porto Rico will be followed as analogous by the United States court in both civil and criminal'cases.</p>

<p>On Motion for New Trial.</p> <p>Federal Court — Local Practice.</p> <p>1. The Federal ’ court is bound to follow local law under Revised Statutes, § 914, U. S. Comp. Stat. 1901, p. 684, and “as far as may be” the decisions of local courts upon local matters.</p> <p>Same — Exceptions.</p> <p>2. An exception to this principle, however, is -where the Federal practice has regard to the jury, which does not obtain under the local law. Jury practice, being a common-law system, must be carried out under common-law rules.</p> <p>Non Obstante Veredicto — Power of Court.</p> <p>3. The Federal court has no power to set aside the. verdict of a jury, and proceed to give judgment non obstante veredicto. The power of the court is limited as to sending the case back to another jury for a new trial.</p> <p>New Trial — Limited Issues.</p> <p>4. In a case where there is no dispute as to certain facts, and it would be hardship, on account of absence of witnesses or otherwise, to compel the party on a new trial to prove these facts, the court will, upon granting a new trial, restrict the issues so as to avoid retrying the issues so undisputed.</p> <p>New Trial — Sympathy of Juries.</p> <p>5. Where it appears clearly to the court that a verdict of the jury ivas induced by sympathy, no matter how caused, a new trial may in its discretion be granted.</p> <p>New Trial — When Granted.</p> <p>6. The fact that a court may differ from the view of the jury will not be reason for setting aside the verdict, unless the court is convinced that the jury was clearly wrong.</p>

<p>On Intimidation .or Witness.</p> <p>Practice — Intimidation of Witness.</p> <p>Where the statement is made by counsel in the presence of the jury, that there has been an intimidation of his witness, the matter will be investigated, and either the party guilty punished, or, unless the attorney seems justified under the circumstances in making the statement, steps will be taken against him.</p>

<p>In Bankruptcy.</p> <p>Bankruptcy — Rehearing Before Court.</p> <p>The referee’s action will not usually be reversed by the court merely on production of evidence which was not presented before the referee, but which could have been so presented. The court will sustain the referee unless he is materially wrong.</p>

<p>Instructions to the Jort.</p> <p>Jury Trial — Belief of Counsel.</p> <p>1. It is immaterial what counsel believes as to the issue, and if expressed, the jury will bo instructed to disregard it.</p> <p>Witness — False Statement.</p> <p>2. If a witness makes one false statement, the jury may in their discretion disregard his evidence on all points.</p> <p>Evidence — Absence—Positive.</p> <p>3. That a party in possession of evidence does not produce it may be taken into account by the jury. Positive evidence has more weight than negative evidence.</p> <p>Intimidation of Witness — Next Friend.</p> <p>4. If a suit is brought by next friend, his intimidation of a witness must not be visited upon the infant plaintiff.</p> <p>Suit for Damages — Elements.</p> <p>5. In a damage suit the plaintiff must prove (1) the injury to him; (2) that it was due to negligence of the defendant or his servants; and (3) the amount of damages suffered. The third element is immaterial unless the other two are first proved.</p> <p>Injury — Undisputed.</p> <p>6. If the evidence is undisputed that the defendant was injured, the court may instruct the jury that the injury occurred.</p> <p>Note. — The authorities on the question of imputed negligence of driver to passenger are collated in a note in 8 L.R.A. (N.S.) 597.</p> <p>Plaintiff — Negligence of Her Driver.</p> <p>7. Where plaintiff is in a buggy with her father, she is identified with him, and, as to persons on the road, is bound by his negligence.</p> <p>Injury by Bulls — When Ownership Immaterial.</p> <p>8. In a suit when the claim is for injuries caused by bulls frightening a buggy horse, the question is not as to ownership of the bulls, but as to whose servants were conducting them.</p> <p>Damages — Items.</p> <p>0. The jury must disregard items of damages alleged but not proved.</p> <p>Damages — Suffering.</p> <p>10. There can be no proof of the money equivalent of suffering. If the suffering is proved, it is for the jury to determine the sum to-be allowed plaintiff.</p> <p>Damages — Excessive.</p> <p>11. A verdict for excessive damages is improper, and will not be allowed to stand.</p> <p>Charges — Federal Practice.</p> <p>12. Under the Federal practice, special charges good in themselves may be refused if substantially embraced in the general charge of the court.</p> <p>Servant — Test of.</p> <p>13. The test of master and servant is not so much employment as-control or the right to control the servant.</p> <p>Damage by Cattle — Porto Rico.</p> <p>14. The conductor of cattle along a highway is, under the Porto-Rican law, liable for damages done by them.</p> <p>Witness — Wilful False Statement.</p> <p>15. The whole testimony of a witness testifying falsely may be disregarded by the jury.’</p> <p>Personal Injuries — Damages.</p> <p>16. The measure of damages from personal injuries is not fixed bylaw, but left to the good sense and discretion of the jury.</p> <p>Damages — Measure.</p> <p>17. Damages should include everything of which a party has been deprived as a direct and natural consequence of the injury, present or future.</p> <p>Preponderance of Evidence — Doubt.</p> <p>18. If the evidence is in doubt as to any material element of the plaintiff’s case, the jury must find for the defendant.</p> <p>Court — Sympathy.</p> <p>19. Evidence, and not sympathy, must control. A legal tribunal is a court of justice, and not of sympathy.</p>