Volume 8 — Puerto Rico Reports

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

A Rearing was Rad of tRe appeal taken on ReRalf of TRe People of Porto Eico from a decision of tRe Eegistrar of Property of Ponce refnsing to record in favor of TRe People of Porto Eico tRree lots wRicR Rad been sold at auction to pay taxes.

<p>This ease involves the sanie questions of law as were involved in The People of Porto Pico v. The Registrar of Property, ante, p. 7, and is decided on authority thereof.</p>

A hearing was had in this appeal taken by José Teissoniere from a decision of the Registrar of Property of Ponce refusing to record a certificate issued by the collector of revenues of that city relative to the sale of a lot for the payment of delinquent taxes.

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

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

<p>Appeal — Municipal Courts — Justices op the Peace. — In cases where municipal courts or justices of the peace have original jurisdiction in appeals to a district court the trial will be had de novo on the original complaint.</p> <p>Malicious Mischief — Petit Larceny — Conviction of a Grime Other Than the One Charged in the Information — Void Judgment. — Where a complaint has been made charging malicious mischief the accused cannot be convicted of the crime of petit larcency, and a court so convicting a defendant exceeds its jurisdiction and the judgment rendered thereunder is void.</p> <p>Judgment Imposing Pine — Subsidiary Imprisonment — Warrant of Arrest.— A judgment imposing a fine upon a defendant, as well as the order for the execution thereof, must specify the term of imprisonment which the accused must serve in default of the payment of such fine; and such imprisonment must not exceed the time for which the accused might have been imprisoned for the crime of which he was convicted.</p> <p>Id. — Void Commitment. — The commitment without the requirements specified in the foregoing paragraph is substantially defective, and consequently null and void.</p> <p>Id. — Habeas Corpus. — Where the court in rendering judgment exceeds its jurisdiction, such judgment being null and void, the commitment issued thereunder is also null and void, and the defendant is entitled to be discharged upon application for the writ of habeas corpus.</p>

<p>Inheritance — Collateral Line. — The representation in the collateral line favors only the third degree thereof, which includes only the children of brothers or sisters, whether they be of the whole or the half blood.</p> <p>Id. — The relative nearest in degree excludes the more remote, excepting the right of representation in proper cases.</p>

ApplioatioN for a Writ of Habeas Corpus. STATEMENT OP THE CASE.

A hearing was had of this appeal taken by José Aparicio Cabrales from the decision of the registrar of property refusing to record a certificate issued by the deputy collector of revenues of Adjuntas relative to the public sale of a rural property, for the payment of taxes.

<p>Evidence — Onus Probandi. — The burden of proof is upon the party alleging an affirmative proposition.</p> <p>Injunction — When the Writ Will Issue. — The writ of injunction will issue when it appears from the allegations of the petition that the plaintiff is entitled to the relief demanded.</p> <p>Id. — Bights of Defendant — Vacation or Modification of Injunction. — Upon an application to vacate or modify an injunction the petitioner must allege the necessary matters of law and fact to justify the modification or vacation of the writ and make due proof of the facts alleged.</p> <p>Id. — Allegations of Petition. — If the allegations of the petition are not denied or disproved they must be considered as proven and are sufficient to support the judgment rendered.</p>

This is a case prosecuted in the District Court of Maya-güez by Tomás Vélez y Vélez, a landowner, residing in Cabo Rojo, as plaintiff, and Bernardo Camacho, a resident of Maya-güez, and Sergio Berenguer y Acosta, a manufacturer, in default, as defendants, in the matter of a complaint in intervention of ownership, which case is pending before ns by virtue of an appeal taken from the judgment rendered by the said district court, which reads as follows: “In the city of…

'This is an appeal taken by Rey. Manuel Díaz Caneja, as collector of the Cathedral Chapter, from, the decision of the registrar of property of this city refusing to transfer an annuity (censo).

A hearing was had of this appeal taken by José Rosado y Cañas, through his attorney Wenceslao Bosch, Esq., from a decision of the Registrar of Property of Caguas qualifying as a curable defect in a certain mortgage instrument the fact tliat the appraised value of the mortgaged property was not stated therein.

STATEMENT • OF THE CASE. This is an. appeal taken by Creseencia Cabañas and Ramón Arendes from the decision of the Registrar of Property of San Juan refusing to record several undivided interests in an urban estate.

<p>Appeal — Evidence—Documents Presented to Appellate Court. — Documents presented to the appellate court and which form no part of the record of the case will not be considered.</p> <p>Nullity of Proceedings — Oral Trial — Evidence oe Confession. — Where an adverse decision was rendered in an oral action prosecuted against a husband and his wife on the sole evidence of confession of the former in the name of the latter, and the annulment of such proceedings having been prayed for on the ground that evidence of confession should relate only to personal acts of the person making the confession, who cannot make such confession in the name of another, it was held that the wife having ratified the confession by subsequent aéts which showed her wish to consider it as valid and binding, such defect, although it was proved to exist, does not constitute a ground for annulment.</p> <p>Id. — Intervention of Ownership — Attachments.—Where an attachment is decreed in a proceeding, if it should prejudice the rights of a person who was not made a defendant therein, his action to enforce his rights is not one to secure the annulment of the proceedings, but an action in intervention of ownership, wherein he may make all the allegations he may think proper tending to identify, establish the boundaries, and prove his ownership of the properties.</p> <p>Simulated Contracts — Fraud of Creditors. — The simulation of a contract of purchase and sale cannot favor a party seeking the annulment thereof on the ground that it was made to defraud him as a creditor, unless it appears that he possesses the character of a creditor of the vendor who executed the contract.</p> <p>Id. — Complicity of Purchaser in Fraudulent Transaction. — The rescission of a conveyance on the ground that it was made in fraud of creditors cannot be decreed, unless it be shown by the different methods recognized by the law, that the purchaser was implicated in the fraud with which the vendor was charged.</p>

<p>Appeal from the District Court of Mayagiiez.</p> <p>Tlie facts are stated in the opinion.</p>

<p>Appeal from the District Court of Mayagüez.</p> <p>The facts are set forth in the opinion.</p>

<p>Unlawful Detainer — Failure to Pat Stipulated Rent. — Failure on the part of the lessee to pay the rent stipulated in a contract of lease is a ground for the action of unlawful detainer.</p> <p>Id. — When Rental Becomes Due — Tolerance of Lessor with Respect to Other Lessees — Custom of the Locality. — Where the price of a lease of real estate has been fixed at a monthly rental it must be considered that the rent is due on the first of each month and ends on the last day of each month, and the lessee will be considered to owe the monthly rental at the end of each month; and where it is agreed that the lessee is bound to deliver the rental without any requirement other than the presentation of a proper receipt by the creditor, the tolerance of the creditor with respect to other lessees in the collection of rent, or the custom in regard to such collection in the locality, can in no wise alter the conditions of the contract entered into.</p> <p>Id. — Deposit—Requisites Therefor.. — In order that a deposit made with a judicial officer may be considered effective and free the obligee from liability, it is necessary that the amount deposited shall have been previously offered to the creditor and that he shall have refused to accept the same, and that he shall have been duly notified of such deposit.</p>

<p>Unlawful Detainer — Against Whom the Action Lies. — An action of unlawful detainer will not lie against a person who holds possession of real property adversely to the plaintiff and under a tona fide claim of ownership.</p>

<p>Appeal from the District Court of San Juan.</p> <p>'The facts are stated in the opinion.</p>

This is a declaratory action of greater import prosecuted, before the former District Court of Arecibo by Emilia Frau y Vázquez, represented by her counsel, Elpidio de los Santos y Lag'uardia, as plaintiff, and Pedro A. Canals, represented by his counsel, Antonio Suliveres, as defendant, for divorce, and an incidental issue raised for the purpose of securing payment of provisional maintenance.

<p>ApplicatioN for a writ of Habeas Corpus.</p> <p>The facts are stated in the opinion.</p> <p>The application.was presented to Mr. Justice Wolf.</p>

<p>Interdicts — Possession.—In interdicts the fact of possession only can he inquired into, as the object of the interdict is to protect the possessor in the enjoyment of his possession.</p> <p>Id. — Servitude.—Where an interdict is based upon the possession of a servitude, even when it is unnecessary to show the acquisition or the origin thereof, the plaintiff is required, however, to prove facts sufficient to show the existence of the servitude and the purposes for which he may have used the same.</p>

<p>Appeal from the District Court of San Juan.</p>

This is an ordinary, civil action prosecuted in the District Court of San Juan by Isabel Núñez Rivera, as plaintiff, and José R. Tibot y Fuentes, as defendant, seeking to secure the annulment of petitions and certain records in the registry of property and the cancellation'of the latter. The proceedings are pending before us by virtue of an appeal taken from the judgment rendered by said district court, a literal copy of which reads as follows: “Judgment.

<p>Procedure — Application por Reconsideration. — Title 2 of Book 2 of the former Law of Civil Procedure, which authorizes applications for reconsideration, has been repealed, inasmuch as the provisions thereof are incompatible with the present Code of Civil Procedure.</p> <p>Id. — New Trial. — Sections 220 and 226 of the Code of Civil Procedure govern the granting of new trials, and a motion for a new trial may be granted in a proper case only by the judge before whom the ease was originally tried.</p> <p>Id. — Substantive Law. — Section 7 of the Civil Code is not applicable to matters of procedure or adjective law, but only to substantive law.</p>

<p>Appeal from the District Court of San Juan.</p> <p>The facts are stated in the opinion.</p>

<p>PetitioN for a writ of habeas corpus.</p> <p>The facts are stated in the opinion.</p>

<p>ApplicatioN for a writ of Certiorari.</p> <p>The facts are set forth in the opinion.</p>

This is a voluntary testamentary proceeding involving the will of G-erónima Grinart y Andreu, prosecuted before the District Court for the Judicial District of Humacao, by Juan Salva y Grinart, wherein said court made an order under date of August 15, 1904, appointing a trustee to be placed in charge of and to manage the properties mentioned in the testament during the prosecution of the said proceedings, under the authority and direction of the court, and to receive the…

In the above entitled case, the attorney for respondents filed a motion in this Supreme Court, praying for a dismissal of the appeal taken from the decision rendered by the District Court for the Judicial District of Humacao providing for the appointment of a trustee to take possession of and manage the property under the authority and control of the court, on the ground that the said decision was not ap-pealable, as it is not comprised in any of the cases specified in…

<p>Appeal from the District Court of Ponce.</p> <p>The facts are set forth in the opinion.</p>

This is an appeal taken by Attorney Eafael Arce Eollet, on behalf of Celestino Solá Eodríguez and Jnana and Domingo Solá y López from a decision of the Eegistrar of Property of Caguas denying the record of a declaration of heirs.

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

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

<p>Usury — Usurious Interest — Contract Void. — Any person who for the loan of money or merchandise receives a higher rate of interest than 12 per cent violates the law of March 1, 1902, fixing the legal rate of interest, and the contract is void, although the usurious rate agreed upon does not appear in the document itself.</p> <p>Id. — Promissory Note Declared ecr Assessment 'Purposes. — Section 301 of the Criminal Code has been repealed by the Law of March 10, 1904, amending title 9 of said Code, and the fact that the promissory note had not been declared for assessment purposes is not a bar against an action for the recovery of its value.</p>

<p>Appeal from the District Court of Mayagüez.</p> <p>The facts are set forth in the opinion.</p>

<p>Divorce. — Because the dissolution of the bonds of matrimony is so far-reaching in its effects upon society a divorce will not be granted to a plaintiff who has not been blameless and conciliatory.</p> <p>Id. — Insults.—Where insults are alleged as a ground for divorce they must not be slight and the result of momentary excitement, but must be serious, persistent, malicious and notorious, showing hatred and rancor.</p>

<p>Obligations — Novation.—The fact that a creditor agreed to suspend or postpone the payment of his credit until the debtor should comply with certain conditions with respect to other credits does not imply a novation or modification of the principal obligation, which was merely not enforeible so long as the debtor should comply with the condition agreed upon, and on his failure so to comply the debtor was in a position to demand the payment of his credit.</p> <p>Id. — Extinguishment op Obligations. — According to the provisions of section 1124 of the Civil Code novations constitute one of the methods of extinguishing obligations.</p> <p>Id. — The faet that the fulfillment of an obligation shall have been postponed by the consent of one of the parties until the debtor should comply with certain conditions does not imply that the fulfillment of such obligation depends upon a future or uncertain event, for the purposes of section 1080 of the Civil Code.</p>

<p>Crimes Against the Election La.w — Eelont.—The crime defined and punished by section 161 of the Penal Code is a felony, and not within the jurisdiction of the municipal courts. ■ ■</p> <p>Crimes — Crimes eor Which the Code Prescribes No Punishment. — The crimes which may be punished urider dtíthority of se'ction 93 of the Penal Codé are those for which the law prescribes no other punishment, but'if the crime falls, expressly within some provision of the Code, it should be prosecuted and punished in accordance with said provision.</p> <p>Habeas Corpus — Exceeding Jurisdiction — Illegal Imprisonment. — If a court has judged and condemned a defendant' for a crime over which it has no jurisdiction, it lias exceeded its Jurisdiction, and therefore the imprisonment is illegal and the -defendant’ is entitled to' be ' discharged from custody on habeas corpus. ■</p>

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

<p>Appeal from the District Court of Humacao.</p> <p>The facts are stated in the opinioji.</p>

<p>Habeas Corpus — Grounds for the Petition. — If the application for a writ of habeas corpus is not based on any of the grounds enumerated in section 483 of the Code of Criminal Procedure, the writ will not issue.</p>

<p>Appeal from tlie District Court of Ponce.</p> <p>Tlie facts are stated in tlie opinion.</p>

<p>Appeal — Bill op Exceptions — Statement op Pacts — Manifest Errors.— There.being no bill of exceptions or statement of facts and it not appearing from the record that any error whatever has been eommitteed which would justify a reversal of the judgment, the same must be affirmed.</p>

<p>Application for a writ of Certiorari.</p> <p>The facts are stated in the opinion.</p>

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

<p>Taxes — Board of Review and Equalization. — Tlie Internal Revenue Law authorizes appeals from the valuation of property by assessors to the Board of Review and Equalization which lias authority to decide all claims made by taxpayers in connection with the valuation of their property and to raise or lower the valuation contained in the schedules whether or not a complaint has been made in relation thereto.</p> <p>Id. — Decision of the Board. — The decision of the board in'all questions properly coming before it for consideration shall be final, and no appeal shall be allowed from its decisions to the Executive Council.</p> <p>Id. — General Powers of the Board. — The intention of the Legislature when it created the Board of Review and Equalization was to give it general supervision over the levying of taxes, and it is not necessary that there should be an express provision denying the right to the taxpayer to appeal to the courts of justice, as the general repealing clause is sufficient for that purpose.</p> <p>Id. — New System of Taxation — Law of Agricultural Colonies. — When the legislature enacted the Law of Internal Revenue it established a new system of taxation, repealed all former systems, made the exemptions it thought fit, revoked and annulled those exemptions which were not expressly left in force and thereby swept away the privileges granted by the Law of Agricultural Colonies in taxation matters.</p> <p>Id. — Contentious-Administrative Proceeding. — To avail himself of the contentious-administrative proceeding, the party must first exhaust all governmental appeals, and if demand for a decrease is made to and is denied by the Treasurer, an appeal from his decision lies to the Board of Review and Equalization before resort can be had to the proceeding known as contentious-administrative.</p> <p>Id. — Jurisdiction of tiie Person and of the Subject Matter. — Jurisdiction of the person is presumed when there is nothing to the contrary in the record, but jurisdiction of the subject matter is never presumed, and cannot be conferred by consent of the parties.</p> <p>Id. — Dilatory Exception. — The contentious-administrative proceeding authorises the filing of dilatory exceptions, and among them is the one which refers to the jurisdiction of the court, which exceptions may be presented before the answer, or at the same time, but the court must deeide them before trying the case on the merits.</p> <p>Id. — Jurisdiction op the Court in Contentious-Administrative Actions.' — • The exhaustion of governmental remedies is an indispensable prerequisite to give the court jurisdiction in contentious-administrative actions.</p> <p>Id. — Voluntary Payment op Taxes. — The payment of taxes by a taxpayer who is not under duress either as to his person or his property should be considered voluntary.</p> <p>Id. — Collection op Illegal Taxes. — So that the taxpayer may protect his rights or recover amounts paid for taxes illegally assessed against his property, he should wait before making the payment until the moment when he sees himself threatened with a sale of his property, and then make the payment under protest, or take the necessary measures to prevent the sale.</p> <p>Id. — Recovery op Sums Paid por Taxes Illegally Imposed. — The sums which voluntarily or inadvertently and without protest of any kind, have been paid to the Treasurer as taxes and under a mistaken claim of right, cannot be recovered in judicial proceedings but by action of the legislature.</p> <p>Id. — Treaty op Paris — Property Belonging to Private Persons. — Article XIII of the Treaty of Paris refers only to real property belonging to the Crown of Spain, the ceding of which to the American Government .cannot affect the rights of private persons, and that article has no application to private property nor to the privileges granted by the Law of Agricultural Colonies in taxation matters.</p> <p>Id. — Cases in Which the Reduction cr Exemtion op Taxes Constitutes a Contract. — So that the reduction of or exemption from taxation granted by the State shall have the nature of a contract and not be affected by later legislation, it is necessary that there should be a consideration, as in any other contract; that is, that the taxpayer be obligated to do something, or else that he has already done something, in benefit of the State, otherwise the concession is reduced to a nudum pactum.</p> <p>Id.' — Consideration.—By consideration is understood, for the purpose of determining the existence of a contract, the benefit or benefits which one party receives from the other, or the latter obligates himself to confer upon the former, and to which he had previously no right; or also, the damages which one party suffers because of the other, and which he was not obliged to suffer, the existence of the said benefits or damages being the reason which caused the other party to obligate himself.</p> <p>Id. — Privileges Granted By the Law op Agricultural Colonies. — The reduction or exemption of taxes granted by the Spanish Government in conformity with the Law of Agricultural Colonies, does not constitute a contract, because of vant of a consideration, which is a material element, and therefore the exemption may be modified or abrogated by the Legislature, as in fact the said Law of Agricultural Colonies has been repealed by the Revenue Law of 1901.</p>

<p>Petition for a writ of Habeas Corpus.</p>

<p>Appeal from a judgment rendered by the District Court of Ponce.</p> <p>The facts are stated in the opinion.</p>

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

<p>Appeal — Bill op Exceptions — Statement op Facts — Manifest Errors.— There being no bill of exceptions or statement of facts, and it not appearing from the record that any' error whatever has been committed which would justify a reversal of the judgment, the same must be affirmed.</p>

<p>Appeal — Bill op Exceptions — Statement op Facts — Manipest Errors.— There being no bill of exceptions or statement of facts, and it not appearing from the record that any error whatever has been committed which would justify a reversal of the judgment, the same must be affirmed.</p>

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

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

<p>Appeal — Mortgage—Summary Foreclosure Proceeding — -Mortgage Debtor.— An order made in a summary foreclosure proceeding directing that a second public sale of the mortgaged property be held is not an appealable order either in accordance -with Articles 128 of the Mortgage Law and 175 of the Regulations for the execution thereof, or in accordance with section 295 of the Code of Civil Procedure.</p>

<p>■Continuance — Absence of Witnesses — Within the Discretion of the Court. — A motion for a continuance, on tlie ground that a witness duly summoned has failed to appear at the trial, is within the sound discretion of the court, and the ruling thereon will not he disturbed on appeal in the absence of a showing of an abuse of discretion.</p> <p>Evidence — Report.—The report of a physician who examined the woman seduced under promise of marriage is inadmissible.</p> <p>Appeal — Documents Not a Part of the Record. — The Supreme Court will not consider on ax>peal any document which was not presented and made a part of the record.</p> <p>'Seduction — Information—Date—Statute of Limitations. — The fact that the evidence showed that the crime was committed on a different date from that alleged in the information is immaterial, it being only necessary that the information show that the offense was committed’ prior to the filing thereof and within the statute of limitations.</p> <p>Id. — Judgment.—Where, by the judgment rendered in a criminal case, the accused is found guilty of the crime with which he is charged in the information, it will be understood that all the essential allegations of the information have been proved to the satisfaction of the court by competent evidence introduced on the trial.</p> <p>Id. — Information—Requisites.—Where an information contains the essential requisites provided for by section 82 of the Code of Criminal Procedure it is sufficient to justify the trial and conviction of the accused.</p> <p>Id. — Corroboration of Testimony of the Prosecutrix. — In cases of seduction under promise of marriage, prosecuted in accordance with section 261 of the Penal Code, the defendant may be convicted on the sole testimony of the injured female; corroboration being only necessary with respect to those crimes defined in section 260 of said code.</p> <p>New Trial. — Motions for new trial, according to the provisions of chapter 7 of the Code of Criminal Procedure, must be filed in the district court and not in the appellate court, which has no jurisdiction of such motions.</p> <p>Seduction — Evidence—Character of the Injured Female. — In a prosecution for seduction it is not necessary to prove that the injured female was a virgin when the crime was committed, because she may have lost her virginity and still be of chaste character.</p> <p>Id. — Promise of Marriage. — Neither is it necessary to expressly prove that the defendant promised to marry the prosecutrix and that she consented to commit the act by reason of such promise only, because in these cases the evidence wall be considered sufficient if the circumstances are such as to justify the conclusion that the act would not have been committed except under promise of marriage.</p> <p>Id. — If it appears to have been proved by the evidence that the defendant visited the house of the injured female as her flaneé, and that the family considered that a promise of marriage existed between them, and such fact does not appear to have been contradicted by any circumstances, it will be sufficient to consider proved that the seduction was committed under the promise of marriage.</p>

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

<p>Appeal from the District Court of Plumacao.</p> <p>Tlie facts are stated in the opinion.</p>

<p>Appeal from the District Court of San Juan.</p> <p>The facts are stated in the opinion.</p>

This is a civil declaratory action brought in the District Court of San Juan, for the annulment of a contract of lease of the estate “Carmen,” the lands appurtenant thereto and a cattle business, the cancellation of records and other orders, by Josefina Finlay de Fabián, married, of age, a landowner and resident of this city, represented and defended in this Supreme Court by Attorney Eduardo Acuña Aybar, as plaintiff, against Finlay Brothers and Waymouth Trading Company, a…

<p>Divorce — Cruel Treatment and Grave Injuries. — The phrase ‘ ‘ a common woman” addiessed by a husband to his wife is not within the term “cruel treatment and giave injuries” which by section 364: of the Civil Code is given as ’a ground for divorce.</p> <p>Id. — The mere fact that a husband prohibited his wife to visit her mother or violently grabbed a poeketbook or portemonnaie from the hands of his wife does not constitute that cruel treatment to which reference is made by the law as a ground for divorce.</p> <p>Id. — 'Where the evidence in an action for divorce shows that both spouses on a' previous occasion had conspired to deceive the court and file an action for divorce, based upon false grounds, the court is justified in giving slight credence to the testimony with respect to the grounds alleged in the subsequent action, and will be warranted in considering that such grounds are also false.</p> <p>Id. — Abandonment—Voluntary Separation op Both Spouses. — Where the husband has consented and even procured a separation from his wife he cannot afterwards successfully allege abandonment as a ground for divorce.</p> <p>Query. — Does not physical cruel treatment, as well as cruel treatment by words, constitute cruel treatment and grave injuries, as defined by the Civil Code as a ground for divorce?</p>

<p>Habeas Corpus' — Imprisonment Awaiting Trial. — Municipal judges have ample power to issue warrants of arrest and commit persons accused of the commission of crime to imprisonment pending trial, such imprisonment being authorized by the provisions of section 44 of the Code of Criminal Procedure and section 44 of the Act of March 12, 3903, amending certain sections of the said code.</p> <p>Id. — Warrants op Arrest. — A mere defect of form is not sufficient to annul a warrant of arrest and entitle the prisoner to be discharged on habeas corpus.</p>

<p>Appeal Jxjdgjíext Not Eis'tebed. — An appeal lákeu from a judgment before it has been entered in the book of judgments of the district court is premature and will be dismissed.</p>

<p>■Obligations — Effectiveness of Judgment. — Every person who by judicial proceedings demands the fulfillment of an obligation may apply for and obtain from the court a precautionary measure to secure the effectiveness of the judgment which may be rendered therein, whatever the nature of such obligation.</p> <p>Id.- — Enforceable Obligation. — For the purpose of securing the effectiveness of a judgment it is necessary that the obligation, the enforcement of which is sought, shall be demandadle; but it is not necessary that the same shall be due in the sense that it may be immediately converted into cash.</p>

<p>Private Documents — Probatory Value. — A private document legally recognized m a judicial proceding possesses the same force and validity with respect to the party who may have subscribed the same as a public instrument.</p> <p>Lack op Capacity op the Parties. — The fact that a person is a natural daughter will not deprive her of the right to appear in a judicial proceeding, nor will the fact that the name in which she appears is not legally hers be sufficient to warrant the assumption that she lacks the necessary legal capacity, unless it is proven that she has made use of an assumed name for the purpose of usurping rights and actions which did not belong to her.</p> <p>Irregularities in Citation — Appearance op Party. — Whatever may be the defects or irregularities existing in the citation of a party to appear in an action, the same will be corrected by his appearance therein.</p> <p>Civil and Criminal Action — Continuance op Trial. — When an infringement upon a right gives rise to the prosecution of a civil or criminal action, the right to prosecute one does not deprive a party of a right to exercise the other, wherefore the filing-of a criminal charge is not sufficient ground upon which to decree a continuance of a civil action prosecuted in relation to the same facts.</p> <p>Unlawful Detainer — Ownership.—In an action of unlawful detainer the question of ownership of a property cannot be considered.</p>

<p>Judgment in Default. — Tn order that the provisions of section 194 of the Code o.f Civil Procedure may be applicable in cases in which the payment of amounts of money or indemnity for damages are involved and the default of the defendant is entered, the plaintiff must request the court to render judgment in accordance with the prayer contained in the complaint.</p> <p>Action, to Eecovee. — In order that an action to recover the ownership of a thing may be successful, it is an essential requisite that the plaintiff shall prove the identity of the thing either by a survey or other adequate evidence to the extent of proving that it is the same thing that is in the possession of the defendant.</p>

These are proceedings of voluntary jurisdiction instituted in the former District Court of Arecibo by Carmen García de Quevedo, relating to the judicial possession of a rural estate, and the opposition formulated by Gregorio Kuinlan against the order granting judicial possession to the petitioner, Carmen García de Quevedo.

<p>Contentious-Administrative Proceeding. — When in the course of a contentious-administrative proceeding the same shall have been delayed for more than one year through the fault of the plaintiff or appellant, which 'will be deemed to exist when the prosecution thereof depends upon any step or proceeding which he should take or prosecute, the action will be deemed to have been abandoned.</p> <p>Id. — INTRODUCTION of Evidence. — Where the evidence in a contentious-administrative proceeding has not been introduced within the time provided therefor it cannot afterward be presented, and the elerk must notify the court in order that it may make the proper orders and the proceedings may be had; and it is not necessary for either of the parties to make any effort to secure the issuance of such orders.</p>

<p>Habeas Corpus — Release op Prisoner Under Bond. — Where a defendant charged with murder in the first degree is convicted of voluntary homicide, and his release under bond is denied by the trial judge, such circumstances will not entitle him under an imperative provision of the law to be released under bond, because the acceptance of such a bond is within the discretion of the court; and this case does not fall within the provisions of subdivision 2 of section 483 of the Code of Criminal Procedure.</p> <p>Id. — Appeal.—Where an appeal is taken to the Supreme Court by a defendant in a criminal cause, the Supreme Court has jurisdiction to order his release under bond if it should-deem such action proper, it not being necessary for this purpose to resort to the extraordinary remedy of habeas corpus.</p>

<p>Habeas Corpus — Punishment Imposed Upon Dependant in a Habeas Corpus PROCEEDING. — In a habeas corpus proceeding the question whether or not the punishment imposed by the judge upon a defendant is excessive cannot be brought in question where such judge is acting within the limits of his jurisdiction or discretionary powers.</p> <p>Id. — Enforcement of Judgment — Commitment.—The detention of a prisoner in compliance with a judgment rendered against him must be justified by a certified copy of the original judgment, according to the provisions of sections 327 of the Code of Criminal Procedure, and a failure to comply with this provision renders the commitment null and void, because it is lacking in an essential requisite and the prisoner will be discharged on habeas corpus.</p> <p>Id. — The provisions of section 484 of the Code of Criminal Procedure have reference to persons committed to prison by virtue of a criminal charge, but not by virtue of a judgment of conviction.</p> <p>Id. — Recommitment.—The fact that a prisoner serving under a judgment of conviction has been discharged on habeas corpus proceedings, because of a failure to comply with the provisions of article 327 of the Code of Criminal Procedure, will not prevent him from being recommitted under a certified copy of the judgment rendered against him.</p>

<p>ApplioatioN for a writ of Habeas Corpus.</p> <p>The facts are stated in the opinion.</p>

A hearing was had of this appeal taken on behalf of Cle-mente Fernández y Barreto, from a decision of the registrar of property of this city refusing to record a deed of purchase and sale of a rural estate.

This is a declaratory action brought in the former District Conrt of Hnmacao, by Catalina Morales Garcia, as plaintiff, against Gregorio… Held: That Catalina Morales y Garcia is a spouse guilty of grave acts of contumely against her husband in leading him to believe that she was virtuous and a virgin in order to contract marriage with him as a single woman; that the right to bring the suit for divorce is not vested in her, but in the offended husband; that she has none of…

<p>Appeal from the District Court of San Juan.</p> <p>The facts are stated in the opinion.</p>

<p>Public Instrument. — General power as well as special power to proseeute actions, and which must be presented at the trial, as also authority to administer property and any other power the object of which is an act drafted, or which should be drafted in a public instrument, or which may prejudice the interests of a third person, must be made to appear in a public instrument.</p> <p>Id. — Documents Signed by Ecclesiastical Authorities — Separation op the Church prom the State. — Public instruments are those which are executed or signed before a notary or any competent public official under the formalities required by law;' and in this respect instruments signed by the Boman Catholic Apostolic Bishop of Porto Bico are not public instruments, inasmuch as this ecclesiastical authority does not perform any public official functions, and has not done so since the change of sovereignty which carried with it the separation of church and state.</p> <p>Acknowledgment op Capacity op the Plaintipp — Deposit.—Where a defendant deposits with the clerk of the court a part of the amount demanded in the complaint, his action cannot be deemed to be a recognition of the legal capacity of the plaintiff, which had been previously attacked by way of demurrer alleging want of such capacity.</p>

<p>Appeal from the District Court of San Juan.</p> <p>The facts are stated in the opinion.</p>

<p>Obligations — Municipal Corporations — Third Persons. — Under the law municipalities are not specifically prohibited from contracting simple loans with private parties, but if paragraph 3 of Rule 3 of article 89 of the Municipal Law is considered to be a prohibition, the effect thereof does not apply to a third person, but is only applicable to the members of the council who passed said resolution.</p> <p>Id.- — The liability of a municipality to pay an amount received from a third person as a loan must necessarily be recognized in view of the general principle that no one can enrich himself at the expense of another.</p>

<p>Habeas Corpus — Pine—Subsidiary Imprisonment. — A judgment condemning the accused to three months’ imprisonment and subsidiary imprisonment for one hundred days in default of payment of a fine of $100 is legal with respect to the principal punishment imposed, as well as with respect to the payment of the fine or the term of imprisonment which the accused may legally be required to serve in default of the payment thereof.</p> <p>Id. — Compliance with Judgment — Commitment.—The detention of a prisoner by virtue of a judgment of conviction must be held under a certified copy of the original .judgment according to 'the provisions of section 327 of the Code of Criminal Procedure, and failure to comply with this provision renders the commitment null and void and the prisoner will be discharged on habeas corpus.</p>

AppeicatioN for the writ of Habeas Corpus. The facts are stated iu the opinion, The application was presented to Mr. Justice MacLeary personally.

<p>Evidence — Burden oe Proof — Obligations.—The burden of proof is on tlie party demanding compliance with an obligation to show the existence of the same.</p> <p>Id. — Testimony oe Witness. — The determination of the probatory value of the testimony of witnesses is not a matter which is purely discretionary with the courts, because they must conform, in making such determination, to the rules of sound judgment.</p>

<p>Appeal from the District Court of Ponce.</p>

<p>Certiorari — Acts Performed by a Marshal. — The Supreme Court may review on certiorari proceedings the acts performed by a marshal if the same have been made to appear in the record of the case.</p> <p>Id. — Ordinary, Adequate, and Effectual Remedy. — The writ of certiorari will not issue in cases where there is an adequate and effectual remedy in the ordinary proceeding provided by law.</p> <p>Id. — Cases in Which the Petitioner was Not a Party to the Principal Action. — Only in very extraordinary eases will the Supreme Court issue a writ of certiorari on the petition of a person who has not been a party to the suit, the review of which is sought to be obtained.</p> <p>Id.’ — Defendant in Certiorari Proceedings. — In certiorari cases the proceedings should be prosecuted against the judge of the court having cognizance of the suit, the review of which is sought by the defendant.</p> <p>Id. — Appeal.—An appeal and not the writ of certiorari is the proper and adequate remedy to correct errors committed in an ordinary proceeding, and in order that a party who believes his rights to have been infringed upon by virtue of an illegal and defective proceeding, may avail himself of the benefits of the writ of certiorari, he must show that he has exercised due diligence in the defense of his rights or that he cannot obtain effective relief in an ordinary proceeding.</p>

<p>TRIAL — Continuance.-—The fact that a defendant was cited to appear in a prosecution before a jury but was tried by a court of laiv, because a jury trial would have been improper, cannot be deemed to have had his rights infringed nor is it a sufficient ground upon which to grant a continuance because the same elements of proof which he would have used in á trial before a jury could be used at the trial before the court of law.</p> <p>Appeal — Bill of Exceptions — Statement of Eacts. — There being no bill of exceptions or statement of facts and no error appearing to have been committed which was prejudicial to the substantial rights of the defendant, the judgment appealed from must.be affirmed.</p>

<p>Trial — Continuance.—A defendant who has been cited to appear in a prosecution before a jury, but is tried by a court of law, because a trial by jury would have been improper, is not prejudiced in any substantial rights, if it appears that he had ample time in which to prepare his defense, and a motion for continuance based upon said ground was properly overruled.</p>

<p>Appeal from the District Court of San Juan.</p> <p>■TRe facts are stated in the opinion.</p>

Appear from a decision of the Registrar of Property of Caguas. STATEMENT OE THE CASE. The hearing has been had in this appeal taken by Attorney José de Guzmán Benitez from a decision of the Registrar of Property of Caguas refusing to record an assignment of a mortgage on two rural estates.

<p>Habeas Corpus — Imprisonment Greater than Authorized by Law — Void as to Excess.' — A judgment in excess of that allowed by law is valid as to the period authorized by law and void as to the excess, but a petitioner will not be discharged on habeas corpus on such ground until he shall have served the term of imprisonment authorized by law.</p>

<p>Appeal from the .District Court of San Juan.</p> <p>Tlie facts are stated in tlie opinion.</p>

This is a declaratory action for the recovery of.'a bond brought by Isabel Córdova y Stuart, widow of Primo Cos-gaya y Villegas, a landowner and resident of Arecibo, represented in this Supreme Court by Attorney José E. Benedicto, as plaintiff, against the Banco de Puerto Bieo, of this city, represented by Attorney Antonio Sarmiento, as defendant.

<p>Appeal — Jurisdiction.—The Supreme Court has no jurisdiction of an appeal taken from a judgment of a district court rendered on appeal from a municipal court in cases where the amount involved in such judgment does not exceed $300, even though the appeal may have been taken during the time that the Supreme Court had jurisdiction of such cases on appeal.</p>

These proceedings were instituted in the former District Court of Humacao, by Cayetano Artenio, María and Julia del Carmen Aponte y Maimi, and concerned the declaration of the intestate heirs of Candida Maimi, and an incidental issue raised by Attorney Ulpiano Valdes Cajas for a hearing to obtain justice against the disciplinary punishment imposed upon him by the said district court, which proceedings are pending before us by virtue of an appeal taken by said attorney from…

<p>Mortgages — Foreclosure Proceedings. — The execution creditor is not given the option to elect the procedure under which to foreclose his mortgage, but he must follow the provisions of the Mortgage Law and the regulations for the execution thereof, which provide for and govern the procedure for the collection of mortgage credits, and which repeal the provisions of the law of Civil Procedure relative to foreclosure proceedings.</p>

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

<p>Appeal fror' the. District Court of San Juan.</p> <p>The facts are stated in the opinion.</p>

<p>Perjury — Definition.—The crime of perjury is committed when a person having sworn 'to testify, declare, depose or certify truly before any competent tribunal or official in any of the cases in which such an oath may be required, wilfully testifies to the truth of any material matter which he knows to be false.</p> <p>Information — Exception.—Exceptions to an information which are not alleged in due time in the trial court will not be considered by the appellate court.</p>

<p>Appeal — Jurisdiction.—The Supreme Court has no jurisdiction of an appeal taken from a judgment of a district court rendered on appeal from the municipal court in a case where the value of the property claimed or the sum specified in the judgment, exclusive of the products and interest therein, does not exceed $300.</p>

<p>Appeal from the District Court of San Juan.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal Law — Information—Exceptions.—Where exceptions to an information haxe not "been alleged in dne time and in a proper manner before the trial court, they cannot be considered on appeal.</p>

<p>Appeal — Statements op Pact — Questions op Pact. — If the evidence taken on a trial forms no part of the transcript of the record, the questions of fact, which must be proved by the result thereof, cannot be considered on appeal.</p> <p>Servitude op Passage. — A property owner who considers that he has a right to a servitude of passage must make his demand in accordance with the provisions of section 564 of the Civil Code.</p> <p>Id. — Prescription.—In order to acquire by prescription a servitude of passage, it is necessary that the use shall have continued during a longer period than forty years.</p> <p>Id. — Mortgage Law — Unrecorded Title. — The provisions of the Mortgage Law cannot he invoked to determine the effects of the contract establishing a servitude of passage where the title has not been recorded in the registry of property.</p>

<p>ApplicatioN for a writ of certiorari.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of Arecibo.</p>