Volume 8 — Puerto Rico Federal Reports

<p>On Motion toe Direction of Verdict.</p> <p>Direction of Verdict.</p> <p>1.A motion to direct a verdict at the close of plaintiff’s case will he denied where, from the evidence adduced, plaintiff has established a prima facie case.</p> <p>2. Plaintiff offered evidence to prove a disbursement of $150 and loss of profits. Evidence as to the latter element of damage tended to show that the usual profit of a building contractor is 10 per cent of the contract price. It is for the jury to determine what would have been a reasonable profit had the contract been performed.</p> <p>Municipality — Bight to Build Hospital.</p> <p>3. A municipality of Porto Bico may build a hospital without the consent of the Commissioner of the Interior if it has the necessary funds to do so.</p> <p>Note. — As to building contractor’s right to recover lost profits on breach of contract, see note in 53 L.B.A. 66.</p> <p>Municipal Ordinance — Part of Contract.</p> <p>4. A municipal ordinance referred to and made a part of a building contract is to be given the same consideration as any clause in the contract itself.</p> <p>Contract — Interpretation.</p> <p>5. If the ordinance in evidence is the one referred to in the contract, the plaintiff cannot recover from the municipality until the latter gets the money from the insular government, as provided in such ordinance.</p> <p>Burden of Proof.</p> <p>6. Plaintiff has the burden of showing which was the ordinance incorporated in his contract by reference, and, if he does not show this, he cannot recover.</p>

<p>INSTRUCTIONS TO THE JURY.</p> <p>Criminal Law — Presumption of Innocence — Burden of Proof.</p> <p>1. In a criminal case there is a presumption that the defendant is innocent until he is proved guilty, and the burden is on the government to prove its charge against the defendant beyond a reasonable doubt.</p> <p>Note. — As to what constitutes a reasonable doubt in criminal eases, see note in 17 L.R.A. 705.</p> <p>Criminal Law — Reasonable Doubt — Smuggling.</p> <p>2. In criminal law a reasonable doubt does not mean no doubt whatever, but a reasonable and moral certainty of the truth of the charge against the defendant. Smuggling is the fraudulently bringing into or taking out of a country goods and merchandise on which the duty has not been paid or the importation or exportation of which is prohibited.</p> <p>Criminal Law — Smuggling—Intention.</p> <p>3. The only way of judging whether or not a defendant intended to evade the law against smuggling is by his acts, not only at the time the articles were introduced, but also subsequently to their introduction.</p> <p>Criminal Law — Smuggling—Intention—Goods for Personal Use.</p> <p>4. If a person brings articles into the United States which are exempt from the payment of duty, and afterwards disposes of them, this fact of itself does not necessarily establish that he intended to evade the law, as his intention must be judged by all the circumstances of the ease.</p> <p>Criminal Law — Intention.</p> <p>5-6. In judging whether a person intended to smuggle in certain jeiwelry which he carried on his person as adornment, the custom of the country from which he came as to the wearing of jewelry may be considered by the jury.</p> <p>Criminal Law — Burden of Proof — Malum in Se — Malum Prohibitum.</p> <p>7. When the act committed by a defendant is malum in se, the burden of proof is on him to show that no intention to commit the act existed, but when the act is malum prohibitum no such intention will be presumed.</p> <p>Criminal Law — Smuggling—“Necessary.”</p> <p>8. The word “necessary” as used in the statute does not imply something indispensable, but something that is reasonable and convenient.</p> <p>Criminal Law — 'Smuggling—“Baggage”—-Ignorance of the Law.</p> <p>9. Jewelry is included in the general word “baggage,” and, as an intention to defraud the revenues is essential to the crime of smuggling, the jury may take into consideration whether or not a defendant was ignorant of the law.</p>

<p>Injunction — Necessary Parties.</p> <p>1. Where the defendant construction company, acting in pursuance of a contract with the San Juan harbor board, is erecting a bulkhead alleged to infringe the plaintiff’s property rights, a preliminary injunction may be granted against the construction company although the harbor board is not made a party to the suit.</p> <p>Injunction — Proper Parties.</p> <p>2. The court in its discretion may postpone the granting of a preliminary injunction against a contract alleged to violate property rights, until the party with whom the contract was made and who is responsible for the work has been notified and given an opportunity to appear.</p>

<p>On Petition of Intervention.</p> <p>Injunction' — -Intervention of Proper Parties.</p> <p>1. In a suit against a contractor to enjoin the erection of a bulkhead, a harbor board with whom the contract was made for its erection are proper though not necessary parties, and a petition for intervention by the board will be granted.</p> <p>Injunction — People of Porto Rico as Party.</p> <p>2. A harbor board, constituted by authority of the local legislature to erect a bulkhead by contract will be considered as representing the people of Porto Rico in a suit to enjoin the erection, and, upon admission of the board into the suit by intervention, it is unnecessary that the People of Porto Rico be made a party.</p>

Bill in tbis cause was filed May 3, 1915, and, after alleging diversity of citizenship of parties, avers that on August 13, 1906, an ordinance was passed by the Executive Council of Porto Pico granting to Carlos Conde Casariego a franchise, whose provisions read as follows:— “Section 1.

<p>ON Motion of the San Juan Habboe Boaed foe Leave to File an Amended Answeb.</p> <p>Intervention — Amendment of Bill.</p> <p>1. Upon the granting of a petition of intervention hy a harbor •hoard to defend a suit brought to restrain the execution of work by a contractor operating in behalf of the board, the original bill of complaint should be amended by inserting the harbor board as joint defendant.</p> <p>Equity — Amendment of Answer.</p> <p>2. If the intervener in an injunction suit has filed an answer and subsequently a preliminary injunction is granted, permission may thereupon be given to amend the answer although the amended answer will not be admitted unless it is in proper form and without conclusive or evidentiary allegations.</p>

Statement of Facts. Many of tbe facts were put in evidence by affidavit on the hearing for preliminary injunction on May 6 and 10, 1915, and were proved by documents or witnesses upon the trial upon the merits. The original statement may, therefore, be referred to as far as it goes. The new evidence showed the development of wharfage fácil-ities at San Jnan after the American occupation in 1899.

<p>Injunction — Stay of Execution.</p> <p>Where a final injunction has keen issued restraining the construction of a pier in violation of the plaintiff’s rights until the parties agree upon the proper damages for the plaintiff, the court will not stay execution of the injunction until condemnation proceedings are brought in a local court to fix the damages, though it would be willing to consider a method to determine them itself. ''</p>

<p>On Motiow for a Nonsuit at Close of Plaintiff’s Case.</p> <p>Attachment Bond — Damages Recoverable.</p> <p>1. Under an attachment bond conditioned that “plaintiff shall pay ... all damages which the said defendant may sustain by reason of the attachment,” the successful defendant may recover the amount of attorneys’ fees expended in connection with the attachment. If the defendant employed counsel generally for the ■whole suit, the court may apportion the amount of the fee which should be paid for the services in connection with the attachment.</p> <p>Jurisdictional Amount — Suit on Attachment Bond.</p> <p>2. A suit in this court on an attachment bond is ancillary to the principal suit in which the bond was given, and will not be dismissed because the evidence shows that the damages sustained ■by plaintiff, defendant in the principal suit, were less than $1,000.</p>

<p>Jurisdiction as to Federal Question.</p> <p>Employers’ Liability Act — Jurisdiction of Action.</p> <p>The district court of the United States for Porto Rico has jurisdiction of an action brought under the so-called Federal Employers’ Liability Act of April 22, 1908, 35 Stat. at L. 65, chap. 149, even although both parties thereto are citizens and residents of Porto Rico.</p> <p>Note. — As to jurisdiction generally of action under Federal employers’ liability act, see notes in 47 L.R.A. (N.S.) 67; L.R.A.1915C, 47.</p> <p>As to power of state courts to enforce rights under Federal employers’ liability act, see also note in 40 L.R.A. (N.S.) 684.</p>

<p>Amendment before New Tktai,.</p> <p>Amendment of Complaint Pending New Trial.</p> <p>Under Rev. Stat. § 954, which provides that the court “may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe,” plaintiff will be permitted to amend the complaint .pending a new trial.</p>

<p>Want of Equity.</p> <p>Partition.</p> <p>Action for partition by plaintiff, claiming to be owner of one half the tract in question, against third person in possession whose title is duly recorded and depends upon a transfer made by plaintiff’s mother to predecessor in title of defendant. Held:</p> <p>1. This action does not fall within art. 37 of the mortgage law.</p> <p>2. §§ 1266 and 1268 of the Civil Code with regard to the prescription of actions for rescission and nullity of contracts are not applicable.</p> <p>3. The action will not lie where .plaintiff is not only out of possession, but his title is disputed by defendant, there is no local statute authorizing the determination of questions of title in a partition suit.*</p>

<p>Contracts in Admiralty.</p> <p>Marítimo Contract — Libel in rem.</p> <p>1. A contract in virtue Of which libellants were employed as ships’ agents for the purpose of handling the vessel upon its arrival at a foreign port is not a maritime contract which can be enforced in admiralty by an action m rem against the vessel.</p> <p>Note- -Por a treatment of the whole subject of admiralty jurisdiction of contracts, see note in 66 L.R.A. 193.</p> <p>As to maritime lien for advances or disbursements by ship’s husband, see pages 416 et seq. of note in 70 L.R.A. on the general subject of what contracts will support maritime lien.</p> <p>Maritime Lien.</p> <p>2. The expenses connected with the entry of a vessel at the customhouse gives rise to a maritime lien.</p> <p>Maritime Lien — Created by Law.</p> <p>3. Maritime liens are created by law, not by agreement.</p>

<p>On Objections to Biel oe Exceptions.</p> <p>Bill of Exceptions — Allowance.</p> <p>1. The objection to the allowance of a hill of exceptions on the ground that a motion for a nonsuit was not made at the conclusion of the plaintiff’s evidence, and therefore no exception noted, is not well taken.</p> <p>Bill of Exceptions — Evidence.</p> <p>2. It is not necessary to set out all the evidence tak&n on all points, but only so much of the evidence as will throw light on the points sought to he reviewed.</p> <p>Bill of Exceptions — Evidence.</p> <p>3. All the evidence taken on a point sought to be reviewed should he fully set out.</p> <p>Bill of Exceptions — Charge of the Court.</p> <p>4. Where it is sought to review the charge of the court, or part of the charge, all of the charge should be set out.</p> <p>Bill of' Exceptions — Evidence—Question and Answer.</p> <p>5. It is not necessary to set out the evidence by question and answer, except in the case of a particular question or answer, as what is material is the substance and not the form.</p>

<p>Citing in Wabrantob.</p> <p>Complaint — Material Amendment.</p> <p>1. A material amendment to a complaint amounts to a new pleading, and it is immaterial whether an amended complaint is filed or the amendment is written in the body of the complaint amended.</p> <p>Grantor — Warranty Title — Party.</p> <p>2. A grantee has a right to notify his grantor of the pendency of the suit, and the grantor thereafter, in a proper case, is bound to carry on the defense of the title which he expressly or impliedly warranted-</p>

<p>On Motion fok Reconsideration.</p> <p>Equity — Final Decree.</p> <p>1. The general principle affecting the finality of a decree is that a decree which settles equities is final although ministerial or administrative action may he necessary to settle details of the litigation.</p> <p>Equity — Parties—Estoppel.</p> <p>2. Where it does not appear from the record and evidence submitted at the hearing, that parties were improperly named and the question was not raised in time, the parties are estopped from setting up such supposed error after a considerable lapse of time.</p> <p>Reconsideration — Term of Court — Bill of Review.</p> <p>3. The court is without power to reconsider a decree rendered at a previous term, and although it will in a proper case consider a motion for reconsideration as a bill of review, it will not do so unless the motion properly requests it.</p> <p>Equity — Separate Findings of Fact.</p> <p>4. Separate findings of fact will be made by the court in a decree in equity, in order to assist in an appeal whenever requested to do so, or it appears necessary, but this must be done in time.</p> <p>Objections — Waiver—Master’s Report.</p> <p>5. Where objection is made that the court committed error in its decree, the alleged error will not be reconsidered when the original bill was not attached in time nor were exceptions taken to the master’s report, as the defect will be considered as having been waived.</p> <p>Proceedings in Courts of Equity — Additional Lien — Tender.</p> <p>6. Where the local law fixes a right to land, the proceedings in a court of equity cannot add to this law by providing an additional method of creating a lien, and a tender is not such a legal right, as it is something coming within the rules of procedure rather than to rights to land.</p> <p>Champerty-r-Laches.</p> <p>7. Where it is alleged that a former proceeding was ehampertous, the alleged defect will not be considered when raised for the first time after final decree nor at any time when raised by a defendant who was not a party to the contract.</p> <p>Statute of Limitations — Appeals.</p> <p>8. Where the time in which an appeal might be taken was shortened by subsequent legislation, a reasonable time in which to appeal will be allowed.</p> <p>Estoppel.</p> <p>9. Where the complainant paid, and the defendant voluntarily accepted, the amount found due him by the master, he is bound by his act.</p>

<p>Jurisdiction over Aliens.</p> <p>Jurisdiction — Citizens of Foreign Countries.</p> <p>1-2. Neither the Constitution nor the Judicial Code gives the Federal courts jurisdiction where both parties to the suit are foreigners, but tlie district court of the United States for Porto Rico is given such jurisdiction by the act creating it, under the authority of § 3 of article 4 of the Constitution.</p> <p>Appearance' — Principal and Ancillary Suit.</p> <p>3. Where a party appears in the principal suit, he will be held to have appeared in an ancillary suit.</p> <p>Jurisdiction — Repeals by Implication.</p> <p>4. The fact of Congress having attached the district court of the United States for Porto Rico to a circuit in -which the jurisdictional amount is $3,000 did not repeal the provision of the organic act fixing the jurisdictional amount at $1,000, as this would amount to a repeal by implication, which is not favored.</p>

Statement of Facts. The libel in this case was filed J anuary 22, 1915, hy a corporation claiming to he organized under the laws of the Kingdom of Great Britain, and operating a submarine cable under a franchise granted by the Spanish government.

<p>Judgment as Proof of Probable Cause.</p> <p>Malicious Prosecution — Probable Cause.</p> <p>One of the essential elements in an action for malicious prosecution is the lack of probable cause for the original prosecution; and the fact that a court of competent jurisdiction found the party guilty, even though reversed afterwards,, proves conclusively that there was probable cause.</p> <p>Note. — On the question of verdict of guilty set aside or reversed and followed by acquittal or nolle prosequi as evidence of probable cause, see note in 6 L.R.A. (N.S.) 701.</p>

<p>Acquittal as Bab to Claim for Forfeited Property.</p> <p>Acquittal Not a Bar to Suit for Forfeiture.</p> <p>*An acquittal on an indictment under §§ 3082 and 2865, Comp. Stat. §§ 5785, 5548, of the Revised Statutes for smuggling jewelry into the United States is not a bar to an information under § 3082 of the Revised Statutes for the forfeiture of the same jewelry.</p>

<p>On Report op Standing Master as to Petition op Garlos Cabrera por Renewal op Lease.</p> <p>Receivership — Standing Master — Reference.</p> <p>1. Where a matter has not been referred to a master by order of the court, his consideration thereof, unless it has been by consent, is em parte.</p> <p>Note. — As to relation of bankruptcy law to assignments and insolvency proceedings under state laws, see note in 45 L.R.A. 177.</p> <p>Receivership.</p> <p>2. A receivership is simply for the purpose of holding the- property intact until the situation which has created the embarrassment is relieved or until the parties can have adjudicated between themselves to whom the property belongs.</p> <p>Receivership — Bankruptcy.</p> <p>3. Where property is in receivership in one court it cannot usually be put in bankruptcy by another court.</p>

Statement of Facts. In tbe course of tbe proceedings on tbe creditors’ bill in this cause, tbe main property of tbe defendant was sold on October 6, 1914, to satisfy the second mortgage and other preferred claims, and bought in by a committee of bondholders and others, known as tbe [Reorganization Committee.

Statement of Facts. In tbis case tbe court on June 17, 1913, ordered the claims to be filed with the clerk within sixty days, and that, after thirty days more for objections, the claims should stand referred to John M. Dabney, standing master in chancery, to report their validity and priority. On September 25, 1913, a further order was made that claims already filed with the receiver would be considered as filed with the clerk as above.

<p>Rulings of Admission of Evidence.</p> <p>Plans — Admission in Evidence.</p> <p>1. If a plan is made part of the complaint, and not denied, it will be admitted in evidence. A witness may draw a plan, while on the witness stand, of what he has seen or witnessed, and may also adopt a plan he has made previously, • and it then becomes a part of his testimony. Sec. 286 of the Code of Civil Procedure applies where there is a dispute as to boundary, and particularly where one party is prevented from making a survey.</p> <p>Admissions as to Former Suit.</p> <p>2. Certain records in a former suit set up as res juMcala having been lost, evidence will be admitted to show admissions on the part of defendants that such suit related to the res in quo.</p> <p>Subpoena Duces Tecum to Secretary of Local Court.</p> <p>3. If the secretary of an insular district court voluntarily appears in obedience to a subpoena duces tecum, and raises no question as to the jurisdiction or propriety of this court to order his attendance as a witness, an objection on such grounds by one of the parties to the case will be overruled.</p> <p>Proof of Signature to Deed.</p> <p>4. Evidence will not be admitted to prove the signature of a subscribing witness to a deed unless the failure of such subscribing witness to appear is properly shown.</p> <p>Admissibility of “Dominio” title.</p> <p>5. A “dominio” title to the res in quo obtained by defendant after the filing of a suit to revindicate the same will not be admitted to prove title in defendant or as a link in his title, but it will be taken into consideration in determining the question of defendant’s good faith in his possession of the property.</p> <p>Evidence on Set-Off Alleged.</p> <p>6. Evidence will not be admitted to show the extent of improvements made by defendant in order that he may recover the value thereof by way of set-off or counterclaim as such claim was not set forth in defendant’s answer.</p>

<p>Final Decree — Close of Term — Intervention of Third Party.</p> <p>1. While it is possible sometimes for the court to set aside a final decree and reopen the case, when this is not done it seems that the court has no authority to consider any matter covered by a final decree rendered at a previous term, nor has it authority to allow an outsider to intervene in a suit to which he is not a party.</p> <p>Privies.</p> <p>2. Privies are those who are so connected with the parties in an estate as to be identified with them in interest, and who may be affected by the litigation.</p> <p>Intervention — Equity Rule.</p> <p>3. Where a main proceeding has gone to a final decree at the preceding term, the matter is closed, and equity rule No. 37 is not applicable so as to allow a third party to intervene.</p> <p>Laches.</p> <p>4. Where a case has been pending for a long term of years, and a party who might have intervened in time does nothing, he will not be allowed to come in after a final decree and reopen the case, especially when he has an opportunity to enforce his right by a separate proceeding.</p>

<p>On CONFIRMATION OF COMPOSITION.</p> <p>Bankruptcy, — Creditors not Proving Claim.</p> <p>1. Ordinarily creditors who have not proved their claims have no standing in court, hut this does not follow in the matter of a composition, which under the law has to be paid to all creditors scheduled.</p> <p>Composition- — Approval by Judge.</p> <p>2. The agreement of a majority in number and value of creditors who have proved their claims is prima facie evidence that the composition is proper, but it is not binding upon the court, regardless of whether opposition is made or not.</p> <p>Composition — Small Offer.</p> <p>3. Where the bankrupt, offers a composition of 10 per cent, and the schedules filed by him show assets aggregating 50 per cent of the liabilities, the court will not confirm an offer of 10 per cent payable at long intervals, without some direct proof that it is to the interest of the creditors. The referee not having made any recommendation, the matter may be referred back to him for investigation.</p>

<p>As to Reconsideration oe Master’s Report.</p> <p>Reconsideration — May Be Allowed Before Estate Is Closed.</p> <p>1. Bankruptcy matters are to be considered as open to reconsideration so long as the case is before the court and the interests affected are unchanged, though under other circumstances the matter decided at a previous term might be considered as res jucUeata.</p> <p>Reconsideration — When Granted.</p> <p>2. Previous orders of the court confirming orders of the referee will be reconsidered, and a rehearing will be granted, when the points presented in the motion therefor have not been previously before the court.</p>

<p>Striking Out Alleged Damages.</p> <p>Exemplary Damages.</p> <p>1. Exemplary or punitive damages are not recoverable in an action brought under § 1803 of the Civil Code.</p> <p>Proximate Damages.</p> <p>2. In an action for damages caused by wrongful attachment, an allegation to the effect that plaintiff’s property was saerified on a foreclosure sale in consequence of the attachment will be stricken from the complaint, as such alleged damage is not the proximate result of the attachment.</p> <p>Note. — As to exemplary damages in an action for abuse of process in suing out an attachment for collection of debt only, see note in 29 L.R.A. (N.S.) 272.</p>

<p>On Motion or Defendants to Dismiss Because or Misjoinder.</p> <p>Reivindicación — Misjoinders of the Defendants.</p> <p>1. Several persons who hold separate and distinct parcels of land on one general tract cannot be joined as defendants in an action of reivindicación to recover the whole tract.</p> <p>Consolidation of action.</p> <p>2. The court cannot order or consider such an action against several defendants to be a. consolidation of cases in accordance with § 921 of the Revised Statutes.</p>

<p>Liability fob Automobile Dbiveb.</p> <p>Negligence — Joinder of-Causes of Action.</p> <p>Tie chauffeur and the owner of an automobile may be joined as defendants in an action for damages caused by the negligent driving of the automobile by the chauffeur.</p>

<p>Priority by Public Instrument.</p> <p>Preference Under Bankruptcy Act.</p> <p>1. A notarial instrument executed within four months prior to bankruptcy, which creates a priority under the local laws, is a transfer granting a preference within the provisions of § 60 (a) of the Bankruptcy Act.</p> <p>Preference or Priority under § 1825 (4) (a), Civil Code.</p> <p>2. A notarial instrument recognizing the validity of anterior promissory notes does not create a preference or priority under § 1825 (4) (a) of the Civil Code; this section only applies to notarial instruments executed for a present consideration.</p>

<p>Claim for Rent.</p> <p>Rents — Priority.</p> <p>A lessee is entitled to preference for the payment of rent due during the month preceding the receivership for property from which the receiver gathered a crop for the benefit of the fund; but lessee is not entitled to preference for six months’ rent for a house used by defendant as a club annex.</p> <p>Note. — As to priority of claim for rent of property in hands of receiver over recorded liens, see notes in 2 L.R.A.(N.S.) 1030, 1044, 1060, 1066; 41 L.R.A. (N.S.) 700, 710.</p>

<p>Motion to Dismiss, Etc.</p> <p>Deposition's — Notice op Taking.</p> <p>1. Wlien an order of the court, issued on application of the plaintiff, authorized the examination of defendant upon commission and no notice was given as required by a rule of court, the appearance of the defendant in opposition cured the defect.</p> <p>Depositions — Time of Taking.</p> <p>2. Whether or not a deposition shall be taken before a case is at issue, is a matter within the discretion of the court.</p> <p>Suit by Married Woman.</p> <p>3. In Porto Eieo a married woman may sue in her own name when the suit relates to her separate property or to her personal rights against her husband, and while equity has in many respects a different procedure from the local law courts, such a fundamental principle as to how a married woman should sue will conform to the local law.</p> <p>Equity — Suit Pending in Another Court.</p> <p>4. 5. Where defendant made a motion to dismiss on the ground that the issues raised in the bill were pending in another court which is a court of law, but it appeared that there had been a long series of fraudulent transactions by which the defendant had put his property beyond the reach of the said court, held that a court of equity will not wait until the remedy at law has been exhausted but will lend its aid for the discovery and preservation of assets which may become important in the suit pending in the other suit, though it cannot render a decree on the merits.</p>

<p>On Exceptions to Master’s Report Regarding Claim of Luis Felipe Iglesias.</p> <p>Receivership — Advances to Receiver.</p> <p>1. When the court authorizes a receiver to borrow money to keep a central in operation, it will protect the lender, if possible, as there is a high sense in which the obligation is a public one.</p> <p>Receivership — Advances to Receiver — Administration Expenses.</p> <p>2. Money lent to a receiver under a court order to continue a central in operation which goes into the operation of the plant is an administration debt of the receiver, and is not a common debt.</p> <p>Note — As to priority of claim for money advanced to receiver, see notes in 2 L.R.A. (N.S.) 1044; 41 L.R.A.(N.S.) 701.</p> <p>Receivership — Receivers’ Contracts — Administration Expenses.</p> <p>3. It is not what a receiver contracts which binds the receivership assets, but what is actually used for the benefit of the property.</p>

<p>Rescission eor Failure oe Consideration.</p> <p>Rescission of Contract for Failure of Consideration.</p> <p>A granted B a perpetual right of way in consideration of B granting A the exclusive right to keep a store on B’s premises, against which store B was to issue tickets to its workmen in payment of their wages. Shortly after this contract the Insular legislature prohibited the payment of workmen in the manner aforesaid, and A’s store, in consequence, ceased to do business. Six years later, A seeks to rescind the contract and to recover the right of way. Held:</p> <p>1. A cannot recover on the ground of failure of consideration, because the same was adequate at the time of the contract, although later obviated through no fault of either of the parties, hut as the result of legislation which should have been contemplated by them;</p> <p>2. A’s claim, in any event, is estopped as a result of his laches in failing to present the same after a period of about six years after the alleged failure of consideration on the part of B and more than four years after the execution of a mortgage to innocent third parties, covering the right of way in question;</p> <p>3. A, however, is entitled to recover such damages as may have been caused him on account of the failure on the part of B to perform its obligation.</p> <p>Note. — For the somewhat similar question of effect on lease of property for saloon of passage of prohibitory laws during the term, see notes in 23 L.R.A.(N.S.) 497; 34 L.R.A.(N.S-) 773.</p>

Statement of Facts. Tbe plaintiff Isabel Gonzalez at one time owned a certain rural estate in tbe district of Loiza. On August 14, 1905, sbe with ber husband duly executed before a notary a lease of tbis property to tbe firm of Sobrinos de Ezquiaga for six years, subject to renewal, for $400 a year.

<p>Master’s Report on Claims.</p> <p>Supplies Prior to Receivership.</p> <p>Claims for supplies furnished within six months prior to the receivership of a sugar central are not entitled to priority or preference where there has been no diversion by the receivers of current income to pay interest on mortgages.</p> <p>Note. — As to priority over recorded liens of claims against property in hands of receiver for labor and supplies, etc., furnished prior to receivership, see notes in 2 L.R.A.(N.S.) 1015, 1058; 41 L.R.A. (N.S.) 696, 708.</p>

<p>Opinion on the Merits.</p> <p>Lease Assignment.</p> <p>1. Under the Porto Rican laws a lease cannot he assigned without the assent of the lessor (see Semidey v. Central Aguirre, 7 Porto Rico Fed. Rep. 572) ; but a right to purchase can be assigned.</p> <p>Specific Performance.</p> <p>2. Specific performance of a contract to purchase will be decreed where certain lands have been leased with the right of purchase, and rent has been paid by the assignee of the lessee, and accepted without protest by the lessor. The lease and the right of purchase formed one contract, embracing a real right which could be assigned.</p> <p>Estoppel.</p> <p>3. The lessor of certain lands with the right to purchase is estopped to deny this right where he has allowed houses to be built upon the property, which by their structure seem designed to outlast the lease. It seems they are permanent improvements.</p>

<p>ON Motion of Respondent to Require Filing of Bond for Damages.</p> <p>Rules oí Court — Admiralty. »</p> <p>1. The order making effective the present rules of this court and providing that all previous rules be null and void had no reference to admiralty rules, and left the existing admiralty rules in force.</p> <p>Adnrralty — Libellant’s Stipulation for Damages.</p> <p>2. Under admiralty rule 4 of this court, requiring a libellant to file a stipulation for damages prior to arrest and seizure, in a sum not less than $100 nor more than the amount claimed in the libel, the amount of such stipulation is within the discretion of the court; as to the amount this rule is discretionary, and not mandatory.</p> <p>Same.</p> <p>3. Rule 4 held not to apply to this ease, because the court, in order . to determine the possible damages to claimants and fix the stipulation thereby, would have to try the case in advance; Rev. Stat. 941, Comp. Stat. 1913, § 1567, gives claimants an adequate remedy.</p> <p>Admiralty — Practice—Damages Caused by Libel.</p> <p>4. The proper way for a claimant to raise the question of damages for filing a libel is by cross libel, but it seems that such damages can only be obtained where the libel is filed in bad faith.</p>

<p>Taking Deposition of Infirm Witness.</p> <p>Depositions — “Infirm.”</p> <p>1. The word “infirm” as used in § 863 of the Revised Statutes, Comp. Stat. 1913, § 1472, providing for the taking of depositions de l>ene esse, includes a witness who is about to die.</p> <p>Depositions — Reasonable Notice of Taking.</p> <p>2. What is reasonable notice of the time of taking a deposition depends upon the circumstances surrounding the particular case.</p>

<p>On Motion to Direct a Verdict tor the Defendant.</p> <p>Regulations of the Treasury Department.</p> <p>1. A regulation of the Treasury Department is not binding upon the court, but it may be very persuasive.</p> <p>Opium Act of December 17, 1914.</p> <p>2. The exemption allowed under § 6 of the Opium Act of December 17, 1914, applies to what are ordinarily known as patent or proprietary medicines recognized by the American pharmacopoeia and similar institutions.</p> <p>Judicial Notice — Medical Practice.</p> <p>3. The court will take judicial notice of the ordinary course of medical practice by which medicine is obtained by a patient.</p> <p>Opium Act of December 17, 1914 — “Distribute”—“Dispense.”</p> <p>4. The words “distribute” and “dispense” in the Opium Act of December 17, 1914, apply as well to a physician as to a druggist.</p> <p>Completed Offense.</p> <p>5. When a physician has delivered the prescription to a patient the offense is complete.</p>

<p>On Motion to Quash the Indictment.</p> <p>Criminal Law — Regulations of a Department of the Government.</p> <p>1. Congress cannot delegate its power to make laws to anyone, and therefore, when it authorizes a department of the government to make regulations to carry a law into effect,' the department of the government has no authority to create a crime by regulation.</p> <p>Criminal Law — Harrison Drug Act — Construction of Statutes.</p> <p>2, 3. The so-called Harrison Drug Act provides that a physician in order to issue a prescription must be registered, and a druggist to fill a prescription must be registered, — held that a registered druggist who fills a prescription issued by an unregistered physician has violated the law, because the act is highly remedial, and all of its sections must be taken together.</p>

<p>CONDITIONAL SALE OF PERSONALTY.</p> <p>Chattel Mortgage.</p> <p>1. There is no law in Porto Rico permitting chattel mortgages, and where one invests another with the apparent ownership of property he cannot afterwards, as against other creditors, claim the property.</p> <p>Instruments in the Form of Leases — Conditional Sales — What Law Governs.</p> <p>2. Where instruments are in the form of leases they will be construed as contracts of conditional sale, if tbe ownership is to pass at the end of the rental period without more, and the law of the place where the contract was entered into and perfected will govern.</p> <p>State Laws — -Judicial Notice.</p> <p>3. A Federal court will take judicial notice of a public law of one of the United States, and the Federal court of Porto Rico has all the powers of other Federal courts.</p> <p>Findings of Referee — Presumption.</p> <p>4. Where all the evidence taken before the referee is not certified to the court, the presumption is in his favor, and he will be sustained.</p>

<p>In the Matter op Petition op Gaezot poe Rehearing and Motion op Certain Parties to Strike the Petition pbom the Piles.</p> <p>Petition for Rehearing.</p> <p>A petition for rehearing filed at a previous term will be struck from the files on motion if the same had not been called to the court’s attention and a special continuance thereof ordered.</p>

<p>Arrest in a Civil Case.</p> <p>Privilege of Witness from Arrest.</p> <p>A person coming to Porto Rico to attend a trial of a case as a witness is not subject to civil arrest while necessarily remaining on the island.</p> <p>Note. — As to privilege of nonresident witness from arrest or service of process, see notes in 25 L.R.A. 721; L.R.A.1915A, 694.</p>

Statement of Facts. The petition in tbis case, filed October 25, 1915, shows that the defendant is charged with having committed the offense of bribery in three instances, all in the district and municipality of Mayaguez, Porto Pico.

<p>On Motion to Remand.</p> <p>Remand — Removals—Jurisdiction—Consuls.</p> <p>1. By § 24, ¶ 18, of the Judicial Code, jurisdiction of suit against consuls and vice consuls is conferred upon the district court of the United States, under art. III., § 2, of the Constitution, and therefore a motion to remand will be refused where a ease has been removed from an insular court and it is shown from the papers that the petition for removal is on behalf of the Spanish consul, other grounds of objection in the form of irregularities to the motion to remand notwithstanding.</p> <p>Note.- — -As to jurisdiction of civil actions against consuls, see note in 45 L.R.A. 579.</p> <p>Controversy between Citizens of Different States — Removals.</p> <p>2. Section 28 of the Judicial Code indicates that a suit may be removed where there is a controversy which is wholly between citizens of different states and which can be fully determined as between them.</p> <p>Translation of Record on Removal.</p> <p>3. If the original record is filed with the petition for removal but the translation thereof has not been filed within thirty days, this latter irregularity does not affect the merits of the case and will not be considered.</p>

<p>Motion to Dismiss Bill.</p> <p>Pleading and Practice — Bill of Complaint — Allegations.</p> <p>1. A bill in equity should state only the ultimate facts, without alleging matters merely of evidence.</p> <p>Pleading and Practice — Equity Rules — Code of Civil Procedure of Porto Rico.</p> <p>2. A bill in equity which seeks the redemption of certain real property, but does not set out a description of the property except by reference to the bill of complaint in another and separate suit, is insufficient according to the new equity rules, and the defect is not cured by § 125 of the Code of Civil Procedure of Porto Rico.</p> <p>Pleading and Practice — Allegations of Bill of Complaint.</p> <p>3. A bill of complaint for the redemption of property brought by a person other than the original mortgagor, as such a person stands in the shoes of the assignor, must clearly allege that the trans-ferrers were the owners of the property.</p> <p>Pleading and Practice — Allegations of Bill of Complaint.</p> <p>4. While it is true that formal defects are not fatal if a good cause of action can be gathered from the pleading, a bill to redeem from a mortgage should set out the material terms of the mortgage.</p> <p>Tender — Insufficiency—Civil Code of Porto Rico.</p> <p>5. Where a complainant tenders a sum which he deems sufficient, but fails to offer to pay such further sum as may justly be found due, he fails to offer to do equity and the tender is insufficient, § 1144 of the Civil Code of Porto Rico not being applicable in equity proceedings.</p> <p>Pleading and Practice — Offer to Redeem.</p> <p>6. A complainant cannot offer to redeem a part of a mortgage; he must offer to redeem the -whole mortgage; hut by article 125 of the Mortgage Law, as amended, he may redeem one parcel where the property consists of several, provided the mortgage is apportioned among the. parcels.</p> <p>Pleading and Practice — Bill of Complaint — Parties.</p> <p>7. Where a bill of complaint includes certain parties as defendants, but fails to state a cause of action against them, they will be allowed to remain upon the record, as their presence will not affect the other defendants.</p> <p>Pleading and Practice — Bill of Complaint — Conclusion of Law.</p> <p>8. A bill of complaint is objectionable if it sets forth conclusions of law instead of the facts.</p>

<p>Evidence — § 858 Revised Statutes, Comp. Stat. 1913, § 1464.</p> <p>The representative of defendant may not testify as to instructions given deceased, in an action by his heirs for damages.</p>

<p>On Motion to Make Special Finding of Facts.</p> <p>Application — When it Must he Made.</p> <p>1. An application for special finding of facts by the court which tries a law case without the intervention of the jury must he made when the ease is submitted, or, at least, before a general finding is made. After a general finding it is too late to make an application for a special finding.</p> <p>Practice — Recitals in Opinions to he Considered as Finding of Facts.</p> <p>2. The practice seems to be, in law cases tried by the court without the intervention of the jury, and in equity cases, to take the facts set forth in the opinion of the court as those proved in the case, which would seem to indicate that the opinion and its recitals are considered as in some sense a part of the case.</p>

<p>On Motion iron New Trial.</p> <p>New Trials — Law Applicable.</p> <p>1. New trials in the United States courts are governed by § 726 of the Revised Statutes, and the local laws on the subject are entirely inapplicable.</p> <p>New Trials — Verification of Motion.</p> <p>2. A motion for a new trial based on errors of law need not be verified in accordance with rule 62 of the Rules of Court.</p> <p>New Trials — Insufficiency of Verdict.</p> <p>3. The court will not set aside a verdict unless its amount or nature is such as to shock the conscience.</p>

<p>Ox Motion fok a Continuance.</p> <p>Witnesses — Subpoena.</p> <p>While witnesses may come in voluntarily, if they fail to come, the court will not look at the fact that they are not present if they have not been subpoenaed.</p>

<p>Exemption'of Insurance Policy.</p> <p>Transfer of Case to Other Division.</p> <p>1. Rule 8 of the court is designed to facilitate the trial of causes, and where no showing is made that either of the parties will be con-venienced by the transfer of the cause to another division of this district, the same will be denied.</p> <p>Merger of Causes of Action.</p> <p>2. A cause of action based upon an agreement in a bond, that S. and his heirs will make good any payment made by plaintiff, is not merged in a count based upon an assignment to plaintiff of the claim of the obligee under the bond against S. and his heirs.</p> <p>Election of Causes of Action.</p> <p>3. Election obtains only where the causes of action are inconsistent. Where distinct causes of action in separate counts are alleged upon which but one recovery can be had, election cannot be required.</p> <p>Note_As to exempt character of proceeds of insurance, see notes in 19 L.R.A. 34; L.R.A.1915A, 1201.</p> <p>Exemption of Property from Attachment.</p> <p>4. The Porto Ric.an law with regard to exemption of property from execution applies likewise to attachments.</p>

<p>Advice op Counsel in Attachment.</p> <p>Wrongful Attachment — Advice of Counsel.</p> <p>A defense of having acted upon the advice of counsel is inadmissible in an action for damage resulting from an improper attachment, but such defense may be set up in an action of malicious prosecution.</p> <p>Note. — As to effect of advice of counsel on liability for exemplary damages in suing out attachment for collection of debt only, see note in 29 L.E.A.(N.S.) 281.</p> <p>As to effect on advice of counsel as defense to action for malicious prosecution, see notes in 18 L.E.A.(N.S.) 49; 39 L.E.A.(N.S.) 207.</p>

<p>On Amendment to Complaint.</p> <p>Damages for Wrongful Attachment.</p> <p>If the breaking up of plaintiff’s business was the proximate result of an attachment wrongfully levied by defendant, this is a proper' element of damage, and evidence as to the amount of business transacted by plaintiff at the time of the attachment will be admitted.</p>

<p>Attokney’s Tax Fee.</p> <p>Docket Pee — Right of Proctor to.</p> <p>A proctor is not entitled to a docket fee where a final decree has been entered by agreement but no final hearing of the ease has been had.</p>

<p>On Motion fob Payment of Interest on Coupons.</p> <p>Receivership — Mortgage Bondholders — Parties.</p> <p>1. Where by order of court the bondholders under a mortgage were prohibited from foreclosing during the pendency of the receivership, the order did not bring the bondholders into court as parties or make the mortgage an issue in the case.</p> <p>Receivership — Mortgage Bondholders — Payment of Interest.</p> <p>2. The suspension of the right of mortgage bondholders to demand the payment of the coupons has not the effect of cutting off the right to collect interest on the coupons if they were ever entitled to it, but simply that they cannot collect it at a certain time.</p> <p>Interest on Interest — Local Law — Law in the United States.</p> <p>3. Under the Civil Code and Code of Commerce of Porto Rico, interest cannot be collected upon current interest, but if judicial demand is made when the interest is due, then the accrued interest will bear interest; and the same is true in the United States, except that a judicial demand is not necessary.</p> <p>Judicial Sale — Purchaser—Power of Court.</p> <p>4. Where one purchases property at a judicial sale he submits himself to the jurisdiction of the court, and he may be compelled by summary proceedings, rule or motion in the original cause, or by attachment as for contempt, to comply with his bid.</p>

<p>On Objection to Evidence.</p> <p>Evidence — Contract.</p> <p>1. Anything that shows how the parties to a contract regarded it before its term had expired, and any statement by the proper representative of either party afterwards before suit brought, is admissible in evidence.</p> <p>Evidence — Contract.</p> <p>2. Where a contract is entered into for one year and then for a second and third year, anything done under the second and third year contracts throws no light upon the construction of the contract of the first year, even if the terms of the first contract were adopted by the second and third contracts, on account of not being contemporary construction, and is inadmissible.</p>

<p>On Objection to Testimony and Motion to Direct a Verdict.</p> <p>Pleading and Practice.</p> <p>1. Where a plaintiff had an opportunity before trial to raise objections either by demurrer or motion to certain parts of an answer, the court will not stop in the course of a jury trial, after the parties have announced themselves ready and have proceeded with the trial, to pass upon such objections.</p> <p>. Contracts — Variation by Parol.</p> <p>2. The terms of a written contract may subsequently be varied by parol by the parties to the contract.</p>

<p>On an Objection to Evidence.</p> <p>Contract — Variation—Question for Jury.</p> <p>1. Where there is a doubt as to whether or not the parties to a contract agreed later to vary it the question will be submitted to the jury:</p> <p>Contract — Statute of Frauds.</p> <p>2. There is no Statute of Frauds in Porto Rico, and a contract is valid when once the minds of the parties are agreed whether or not it is reduced to writing.</p> <p>Contract — Consideration—Executing and Executed Contracts.</p> <p>3. A consideration is important only when a contract is execu-tory, but when once it is acted upon by both parties it becomes an executed contract, and a consideration is either not necessary or is implied.</p>

<p>Administration on Firm Assets after Death of Partner.</p> <p>Bankruptcy — Adjudication of Dissolved Copartnership.</p> <p>A copartnership which was dissolved by the death of its managing partner (gestor), but whose aflairs have not been finally settled, may be adjudicated in bankruptcy.</p>

Statement of Facts. This is a suit brought by José Romero Fernández against the defendants Jaime Calaf et al. for damages for an alleged breach of a contract entered into between the parties January 15, 1912, as follows: En la ciudad de San Juan de Puerto Rico a los'quince días del meá de enero, 1912, los-que suscriben Sres.

<p>Liability of Automobile Owner.</p> <p>Automobile Owner — Liability for Chauffeur’s Negligence.</p> <p>1. Where the owner of an automobile is present and in charge of the car, § 1803 of the Civil Code, and not § 1804, applies and he will ; be held liable for the negligent acts of the chauffeur.</p> <p>Construction of Statute by Insular Supreme Court.</p> <p>2. The construction of a Porto Rican statute by the Supreme Court of the Island is not necessarily' binding upon the United States court, and it will follow its own decisions with regard thereto.</p>

<p>On the Admission of Testimony Relative to a Confession.</p> <p>Confession — Involuntary.</p> <p>A confession made to a postoffice inspector at 10 o’clock p. m., without' counsel being in attendance and without any warning being given that the defendant’s statements might be used against him, is not a voluntary confession and hence inadmissible. The fact that the examination was not made under oath is immaterial.</p> <p>Note. — For an elaborate treatment of the question, When confession ia voluntary, see notes in 18 L.R.A.(N.S.) 772, and 50 L.R.A.(N.S.) 1077.</p>

<p>Materialmen to Public Works Under Act of Congress of February 24, 1915.</p> <p>Labor and Materialmen — Subcontractor—Local Law.</p> <p>1. Persons supplying labor or material to a subcontractor are entitled to the protection afforded by the bond given under the Act of Congress of February 24, 1905, and the case will be governed entirely by the provisions of the said statute, the local law being inapplicable.</p> <p>Subrogation.</p> <p>2. It is not everyone who pays a debt of another that is subro-gated to that other’s rights, and unless the person so doing is under some obligation to pay the debt, or it is ratified by the debtor, it remains an act for which the law provides no reimbursement, but where one is subrogated to the rights of another a formal assignment is not necessary.</p> <p>Labor and Materialmen — Allegations of Complainant.</p> <p>3-4. A complaint filed under the labor and Materialmen Act of February -24, 1905, must allege all the facts required and by the statute as prerequisites, and must allege them as facts and not as conclusions of law.</p>

Statement of Facts. The facts controlling this case may be briefly stated. R. A. Maefie, receiver of the Utuado Sugar Company, in this cause during the difficult times arising in the year 1913, found it necessary to borrow money to operate the receivership property.

<p>On Application fob Extension op Lease.</p> <p>Receivership — Leasing Property.</p> <p>The court has power to lease a sugar central, and will do so where that procedure seems preferable to operating it through a receiver.</p>

<p>Stay of Execution foe Fine.</p> <p>Stay of Execution.</p> <p>The court will stay an execution for the collection of a fine for such time as will enable the prisoner to make good his application to the President for pardon.</p>

<p>Equity Pleading.</p> <p>Equity — Motions to Strike and to Dismiss.</p> <p>1. A motion in an equity suit to strike papers from the flies and a motion to dismiss the complaint are distinct; the former relates generally to formal matters, while the latter takes the place of the old demurrer.</p> <p>Equity — Gross-Bills not Abolished.</p> <p>2. Cross hills have not been abolished hy the new equity rules; all defenses or claims, however, which arise out of the same transaction sued on by plaintiff fall within the scope of rule 30, and should be pleaded in the answer by way of set-off or counterclaim.</p> <p>Foreclosure — Defenses.</p> <p>3. The only defenses that may be interposed to a suit in equity to foreclose a mortgage are those provided for in art. 175 of the regulations to the mortgage law.</p>

<p>Porto Rico Employers’ Liability Act.</p> <p>Employers’ Liability Act of Porto Rico — Remedy not Exclusive.</p> <p>The remedy afforded by the Porto Rican Employers’ Liability Act, approved March 1, 1902 (§§ 916 to 927, Comp. Stats. & Codes of Porto Eieo), is not exclusive, but supplemental to the remedy provided by §§ 1803, 1804, et seq., of the Civil Code.</p>

Statement of Facts. Tbis case comes up on a demurrer to the'complaint. The complaint alleges that the plaintiff is a corporation of New York, and that defendants are the heirs of one Landrau and are citizens of Porto Pico. That plaintiff is the successor of a copartnership formerly existing in New York, and that the present corporation took over from the said copartnership all the property, actions at law, assets, and liabilities which it owned and for which it was liable.

<p>Exceptions to Master’s Report on Rents.</p> <p>Receivership — Answer to Claims.</p> <p>1. A formal answer or objection need not be made to a claim filed in a receivership case pursuant to an order of court that all creditors of the defendant file their claims with the standing master in chancery on or before a certain date.</p> <p>Master’s Report — Testimony to Be Filed Therewith.</p> <p>2. Testimony taken before the master should be transcribed and filed with his report to the court, but failure to do so is not ground for exception thereto, hut rather for motion to re-refer for such purpose.</p> <p>Leases — Receiver May Cancel — Payment of Rents.</p> <p>3. A receiver may elect to cancel a lease of property made to defendant within a reasonable time after his entering into possession thereof, and if he does so he will be liable for the payment only of the rent due, in accordance with the lease, from the date of his possession to the date when the land is redelivered or tendered to the lessor. ,</p>

<p>On Application for Injunction Pendente Lite.</p> <p>Preliminary Injunction — Translation of Papers.</p> <p>A preliminary injunction or one pendente lite, is designed to hold the property in statu quo until everything can he determined by the pleadings and evidence, and the court will, when justified by the circumstances, admit papers which have not been translated.</p>

<p>On Application to Dissolve Attachment.</p> <p>Bankruptcy-Dissolution of Attachment.</p> <p>Where during the pendency of a suit at common law, the defendant goes into bankruptcy and the trustee applies to have an attachment levied by the plaintiff dissolved, the court will ordinarily grant the petition, and will order the cancelation of the plaintiff’s bond given in the attachment proceedings.</p>

<p>On Notice prom a Local Court op Attachment op a Jxjdoment in This Court.</p> <p>Costs — Attorney's Lien.</p> <p>1. Where a party has recovered judgment, his costs, and any lien which his attorney may have, will be protected before the court will allow any fund which has been properly collected through its process to go out of court.</p> <p>Costs — Intervener.</p> <p>2. An intervener cannot make himself a party to a suit without taking the usual steps required of an original party, such as making a deposit for costs.</p> <p>Attachment — Federal Court — Insular Court.</p> <p>3. A fund in the Federal court cannot be attached by an order of an insular court, as one court cannot interfere with the decisions of another court.</p> <p>Comity between Courts — Ancillary Jurisdiction.</p> <p>4. It seems that, even, as a matter of comity between courts, one court has not the authority to tie up money won by a plaintiff in a suit before it upon the order of another court, and much less at the simple request of a private party, although it could undoubtedly do so when acting within its ancillary jurisdiction.</p> <p>Functions of American Courts.</p> <p>5. A court under the American system of jurisprudence is not a government institution in the sense that it owes any duty to a coordinate branch of the government, except in. so far as that branch is a litigant.</p>

Statement of Facts. The litigation in this case concerns the title to a coffee plantation known as Limón in the municipality of Juana Diaz, Porto Rico, and has come up in this court a number of times. The facts as shown by the testimony prove to the satisfaction of the court that on April 8, 1878, Felix Olivieri sold the property, containing 268 cuerdas, to Alvarado Hermanos in payment of a certain debt, and that the dominio title was duly registered in the grantees.

<p>Instbtjctions to the Juey.</p> <p>Evidence — Burden of Proof.</p> <p>1. In an action for damages the burden is on the plaintiff to prove his case by a preponderance of the evidence.</p> <p>Compensatory Damages.</p> <p>2. In a case where an automobile is damaged by another, the law allows only compensatory damages.</p> <p>Automobile Driver — License.</p> <p>3. The fact that a driver of an automobile at the time of the accident did not have a license to drive an automobile is immaterial.</p> <p>“Carretera” or Public Road — Right of Way — Limitation on Speed.</p> <p>4. A traveler on the “carretera,” or public road, has the right of way over a person coming out of a private drive, but he must use his right in a reasonable manner, and not at a dangerous rate of speed.</p> <p>Negligence — Unavoidable Accident.</p> <p>5. Where an accident occurs through the fault of neither party, there can be no recovery.</p> <p>Negligence — Doctrine of “Last Clear Chance.”</p> <p>6. Where both parties are at fault, but one of them could have avoided the accident by the exercise of reasonable diligence and did not do so, lie would be liable under the doctrine of the “last clear chance.”</p> <p>Note. — As to effect on civil liability for injury of failure to procure license for automobiles, see cases in notes in 35 L.R.A.(N.S.) 699; 41 L.R.A. (N.S.) 308; and L.R.A.1915D, 628.</p> <p>For a review of the authorities on all phases of the law as to automobiles, see note in 1 L.R.A. (N.S.)’ 215.</p>

<p>On Offer of Testimony Taken in Another Case.</p> <p>Evidence — Equity and Admiralty Cases — Local Law.</p> <p>1. It seems that the law of evidence of Porto Rico is not controlling upon this court in equity and admiralty cases.</p> <p>Evidence — Admission of Evidence Taken in Different Oases.</p> <p>2. Tlie evidence of a defendant given in a different case will be •admitted as admissions, and so will the evidence of other witnesses in so far as the defendant has accepted its correctness, but otherwise not, as the witnesses in the other case were not agents of the defendant.</p>

<p>On Dbmtjkeee to Complaint.</p> <p>Allegation's in Complaint — Conclusions of Law.</p> <p>While an allegation in a complaint may be a conclusion of law, it will not necessarily be stricken out where leaving it in will aid in ascertaining the views of the pleader, as at most it is matter of argument and not of proof.</p>

<p>On Motion of Complainants to Dismiss.</p> <p>Jurisdiction of Court of Equity — Eight of Office — Property Eights.</p> <p>1. Although a Federal court cannot enjoin a municipal corporation. from removing one of its officers, it has jurisdiction over the parties where property rights as distinguished from right of office are involved.</p> <p>Eight of Private Person to Eepair a Public Eoad.</p> <p>2. Where a municipality fails or declines to repair a public road, a person whose only outlet to market is by the said road has a right to repair jt.</p> <p>Municipal Ordinances and Statutes of a State — Jurisdiction of Court.</p> <p>3. A court has'a very limited, if anjf, right to look into anything connected with a statute of a state if it has been passed by the proper authority and is not unconstitutional or against public policy; . but where a municipal ordinance is concerned, it has the right to declare it void if unreasonable.</p> <p>Municipalities in Porto Eico Distinguished from Municipalities in the United States — Eeasonableness of Ordinance.</p> <p>4. In the United States generally a municipality is confined to the well-settled parts of a city or town, while in Porto Eico a municipality takes in not only the well-settled parts of a city or town, but also considerable surrounding country; and where it fails to repair a road, and declares in a sense by ordinance that no one shall repair it, even a property owner abutting it and owning part of the land forming the road, which is his only outlet to market, such ordinance is unreasonable and void.</p>

<p>Discharge op Bankrupt.</p> <p>Bankruptcy — Discharge—Findings of Referee.</p> <p>Where the discharge of a bankrupt is opposed on the ground that he failed to keep hooks of account or record, or that hooks were destroyed hy the- bankrupt, the court will not refuse confirmation where it is not shown that the several acts were done hy the bankrupt with intent to conceal his condition; and the findings of the referee as to these facts will not he disturbed by the court unless it is shown that the referee was clearly wrong.</p> <p>Note. — For a review of the authorities on omission of bankrupt to keep books as ground for refusing discharge, see note in 20 L.R.A. (N.S.) 246.</p>

Statement of Facts. This libel -was filed November 25, 1914, and answered January 20, 1915. It came on for trial at Mayaguez in January, 1916. ’At the trial sundry amendments were made, whereby Diaz as party plaintiff was added, and appropriate amendment made in the answer to meet the amendment of the libel.

<p>Loans to Receivers.</p> <p>Receivership — Administration Expenses.</p> <p>1. The court can unquestionably contract any expenses, by receiver’s certificates or otherwise, necessary for the preservation of the property, and, in certain cases of railroads, and to a limited extent, possibly, of sugar mills, it can authorize the carrying on of the business in order to preserve the property.</p> <p>Receivership — Priority of Claims — Loans to Receivers.</p> <p>2. Where the court authorized the receiver to borrow money and issue receiver’s certificates therefor, and he borrowed money upon re-facción contract instead, and not in the manner authorized by the court, and did not issue receiver’s certificates, all the money so borrowed which actually went into the preservation of the property should be segregated from the rest, and should be paid as an administration expense, along with other proper administration expenses.</p> <p>Same.</p> <p>3. Qu'cere: whether the balance of the money so borrowed, which did not go into the preservation of the property, is entitled to a preference over mortgages existing prior to the receivership.</p> <p>Not®. — For an elaborate treatment of the question of priority of claims against property in hands of receiver over recorded liens, see notes in 2 L.R.A. (N.S.) 1013, and 41 L.R.A.(N.S.) 695.</p>

Statement of Facts. The original bill in this canse is filed June 22, 1915, by Manuel, Felipe, an Mag’delena Salcedo y Berrios, Mercedes Salcedo y Lebrón, and Calixto, Gregorio, Concepción, Luisa, Andrés, Estanislao, Félix, and José Emilio Salcedo y Mendez, the last three being minors and appearing herein by their tutor, Calixto Salcedo y Mendez, against José Alvarez y Gonzalez, known as Francisco Alvarez, and Concepción Andreu y Corcino.

<p>Indorsement not a True Bill.</p> <p>Criminal Procedure — Grand Jury — Loss of Papers.</p> <p>Where the indictment is lost, and not presented to the grand jury, it is sufficient for them to indorse, “Not a true bill,” upon the mittimus or whatever part of the file in the case comes to them, and if the court ratifies this action by releasing the prisoner there is no error.</p> <p>Note. — As to effect of losa of indictment, see note in 41 L.K.A.(N.S.) 1079.</p>

<p>Fraudulent Conveyances.</p> <p>Bankruptcy — Jurisdiction.</p> <p>1. Tire fact that creditors could collect their claims at law without resorting to bankruptcy proceedings is not an obstacle to a suit in bankruptcy if the elements prescribed by the Bankruptcy Act exist.</p> <p>Bankruptcy — Act of Bankruptcy- — Fraudulent Conveyance.</p> <p>2. To show a transfer with intent to hinder, delay, or defraud' creditors as constituting an act of bankruptcy, it is essential to prove, first, the transfer, and second, the intent to defraud creditors.</p> <p>Bankruptcy — Fraudulent Conveyance — Intent.</p> <p>3. While the fraudulent intent must be alleged and proven, it may he inferred from the transfer itself as a necessary consequence; the intent is to be gathered from all the circumstances of the case.</p> <p>Bankruptcy — Fraudulent Conveyance — Insolvency.</p> <p>4. A necessary element of this act of bankruptcy is the insolvency of debtor at the time of filing the petition; solvency at time of conveyance complained of is immaterial; burden is on debtor to prove his solvency by evidence.</p>

<p>Citizenship oe Alien Minor.</p> <p>Courts — Eligibility of Jurors — Citizenship.</p> <p>Where a child is born of foreign parents in a foreign country, and his father dies, and his mother marries an American citizen and moves to the United States with the child, who continues to reside there and becomes of age, the child is an American citizen and eligible to serve as a juror.</p>

The District Attorney: If tbe court please, tbis boy is so young that I do not like to ask tbe court to send bim to tbe penitentiary if it can be avoided, and I am going to ask your Honor to remand bim to tbe jail for thirty days until tbe case can be laid before tbe Department of Justice to see whether some other disposition can be made of bim.

<p>Reopening Closed Bankruptcy Estate.</p> <p>Bankruptcy — Allowance of Claims — Review.</p> <p>1. The proper manner to review the decision of the referee as to allowance of claims and priorities is by petition of review, and after an estate has been closed it cannot be reopened for the purpose of reviewing such decision.</p> <p>Bankruptcy — Reopening Estate.</p> <p>2. The only ground for reopening estates is that it appear that they were closed before being administered, that there are unad-ministered assets.</p> <p>Same.</p> <p>3. An estate may be reopened upon a petition alleging improper allowances to attorneys as fees and to the referee for expenses; such sums are still in the hands of the court, as the referee and attorneys are officials of the court, and they, therefore, constitute unadmin-istered assets.</p>

<p>Cancelation or Fraudulent Conveyance.</p> <p>Equity — Pleading—Counterclaim.</p> <p>1. Although the equity rules provide that when no reply is made to a counterclaim defendant may take a decree pro confesso, it is too late to seek such decree at the final hearing; moreover, a decree pro oonfesso will not be granted when the relief sought by the counterclaim will necessarily follow a decree for the defendant upon the bill and answer.</p> <p>.Equity — Jurisdiction—Adequate Remedy at Law.</p> <p>2. Equity has jurisdiction of a suit to annul a cancelation of a mortgage and to foreclose that mortgage.</p> <p>Courts — Jurisdiction—Citizenship.</p> <p>3. After submission of a ease to the court upon final hearing, without raising the point that an allegation as to citizenship is not true, an amendment will be held to have been allowed to conform to the proof, where the amendment does not divest the court of jurisdiction.</p> <p>Mortgages — Transfer by Husband to Wife.</p> <p>4. A transfer to a wife where the husband pays the consideration is within the rule making void all transfers between husband and wife.</p> <p>Same.</p> <p>5. Where, however, the husband acted as agent of a third party in the transfer to his wife, the third party cannot set up the incapacity.</p> <p>Mortgages — Recording—Third Parties.</p> <p>6. An unrecorded transfer of a mortgage is binding upon the parties to the transfer; they are not third parties.</p> <p>Gifts — Husband and Wife.</p> <p>7. Gifts between a husband and wife are void per se.</p> <p>Contracts — -Acceptance.</p> <p>8. Consent is not destroyed by the fact that one party thought she was getting a deed while in fact she got a mortgage; if a contract has been acted upon by the parties the consent of the contracting parties is present and the contract will be enforced.</p> <p>Contracts — Consideration—Husband and Wife.</p> <p>9. A transfer by a husband to a wife, made in consideration of her abandoning divorce proceedings for which she had cause, is a contract for a good consideration, and is valid and enforceable; a court of equity will not disaffirm such a contract after the reconciliation based upon it has been consummated.</p>

<p>On DeMurrer to Libel.</p> <p>Admiralty — Revenue Laws — Right of .Trial by Jury.</p> <p>1. The collection of duties is not a cause within admiralty jurisdiction, and in the case of seizure of goods on land under the revenue laws the district courts proceed as courts of common law, and the' claimant is entitled to a jury trial if he files an answer denying the facts set forth in the information.</p> <p>Forfeiture of Goods — Nature of Proceeding.</p> <p>2. A proceeding to forfeit a person’s goods is a criminal proceeding within the meaning of the Constitution.</p>

<p>The Court’s Instructions To The Jury.</p> <p>Customs — Seizure.</p> <p>1. A proceeding by the United States against - property for nonpayment of customs duties is neither a civil nor a criminal suit; it is analagous to a suit in admiralty.</p> <p>Same.</p> <p>2. In order to forfeit goods for nonpayment of duties, in the hands of a third party, it is necessary to show that the duties were not paid and that the third party knew of this fact or that the circumstances by which they came into his possession should have put him upon his inquiry.</p> <p>Same.</p> <p>3. The burden of proving good faith is upon the third party in possession of the goods, and he must establish that the goods did not come into his possession under circumstances which would put him upon his'inquiry.</p>

<p>On Demukkeb to Complaint.</p> <p>Warranty of Title — Eviction By and Without Suit.</p> <p>A vendor is answerable to his vendee whenever the latter is evicted, whether this be done by suit or otherwise; but if the eviction is by suit the vendor is not liable unless the vendee gives him notice of the pendency of the suit so that he may come in and defend.</p>

<p>Counterclaim, etc., in Ejectment.</p> <p>Motion to Strike — Res Judicata.-</p> <p>1. Where a motion is made to strike that part of an answer which alleges that the matter is res judicata, and sets forth the necessary facts, the motion to strike will be denied.</p> <p>Motion to Strike — Matter of Evidence.</p> <p>2. Matter of evidence in an answer will be stricken out upon motion.</p> <p>Suit in Ejectment — Lease for a Definite Period — Ungathered Crops.</p> <p>3. Where the lessor brings an action of ejectment against the lessee, if the lease has been for a definite period the lessee is not entitled to a counterclaim for the ungathered crops.</p> <p>Suit in Ejectment — Counterclaim.</p> <p>4. A suit in ejectment for the possession of land is not a suit ex contractu, and in Porto Eico there can be no counterclaim of debt in such a suit; but if the plaintiff has included in his complaint in ejectment a prayer for rents and profits, the counterclaim may be allowed as an offset against the claim for rents and profits pro tanto.</p>

<p>On Objection to Document Offered in Evidence.</p> <p>Action of Unlawful Detainer — Action of Ejectment.</p> <p>1. The action of unlawful detainer is employed to recover property in tlie wrongful possession of another, and is not concerned with the question of title, while in the action of ejectment the question of title is the principal issue.</p> <p>Action of Unlawful Detainer — Action of Ejectment- — Res Judioata.</p> <p>2. A decision in an action of unlawful detainer, being a special proceeding, is not a bar to an action of ejectment which is a regular proceeding.</p>

<p>Re Lien oe Local Attachment.</p> <p>Bankruptcy — Liens—Civil Law.</p> <p>1, 2. Liens recognized hy the local law are recognized in Bankruptcy, and the Bankruptcy Act is as applicable to a civil law community as to one recognizing the common law.</p> <p>Same.</p> <p>3. While the civil law does not contain the word “lien,” it recognizes charges upon property, and gives the order in which debts should be paid according to their nature.</p> <p>Bankruptcy — Attachments.</p> <p>4, 5. In the United States an attachment more than four months before bankruptcy creates a lien which will not be disturbed in bankruptcy regardless of the date of the judgment in the suit in which the attachment' is granted.</p> <p>Bankruptcy — Embargo—Lien.</p> <p>6. Under Spanish and Porto Rican law there is no attachment, but its place is supplied by an embargo upon specific property to secure the effectiveness of the judgment to be rendered.</p> <p>Same.</p> <p>7. While the method of procedure is different, nevertheless for all practical purposes the result of the Porto Rican embargo and the American attachment is the same; the Bankruptcy Act, therefore, recognizes both, and if the embargo was levied more than four months prior to bankruptcy the lien will be preserved in bankruptcy.</p> <p>Bankruptcy — Act of Bankruptcy.</p> <p>8. If a debtor’s property is taken on judicial process and advertised for sale on execution, and the debtor does not five days prior to the day of sale discharge the lien, this constitutes an act of bankruptcy, and creditors may file an involuntary petition without waiting for the sale to take place.</p> <p>Bankruptcy — Jurisdiction to Enjoin Execution Sale.</p> <p>9. Even where the lien of the execution creditor attached more than four months prior to bankruptcy, the bankruptcy court has power to enjoin sale of debtor’s property on execution, and will do so if advantageous to bankrupt estate, preserving, however, the lien of the attachment creditor ptt the property.</p>

<p>Suit by Mother oe Illegitimate Child.</p> <p>Negligence — Natural Guardian — Right to Recover for Death of Natural Child.</p> <p>1. It is the mother, and not the natural guardian, who has the right to be supported by her child, and the mother cannot recover for the death of her natural child caused by the negligence of another.</p> <p>Decisions of the Local Courts Controlling upon This Court.</p> <p>2. The decisions of the local courts in matters pertaining to the status of individuals, family relationship, title to property, and the like, are controlling upon this court.</p> <p>Note. — As to right to recover for negligent killing of illegitimate, see . note in 2 L.R.A. (N.S.) 640.</p>

<p>On Weit or Habeas Corpus.</p> <p>Commutation of Sentence by the President — Right of This Court to Modify the President’s Order.</p> <p>1. Where a sentence of this court has been commuted by the President, this court has no right to modify the President’s order.</p> <p>Modification of Sentence by the President — Allowances under the Local Law.</p> <p>2. Where the President has modified a sentence of this court and said that the accused shall serve six months, the accused cannot take advantage of the allowances offered by the local law.</p>

<p>As TO SEPARATE FINDINGS IN EQUITY.</p> <p>Findings of Fact — in Equity — at Law.</p> <p>1. Sections 649 and 700 of the Revised Statutes of the United States, Comp. Stat. 1913, §§ 1587, 1668, making it the duty of the court to make findings of fact, do not refer to cases in equity, but to cases at law where a jury has been waived.</p> <p>Record in Equity.</p> <p>2. In the United States courts the bill, answer, and other pleadings, together with the decree, constitute what is. properly considered as the record.</p>

<p>ON DEMURRER AND MOTION TO TRANSFER.</p> <p>Territorial Jurisdiction of Tins Court — Divisions.</p> <p>1. While there are, strictly speaking, no different divisions in this district, the court will consider that the divisions do exist.</p> <p>Promissory Notes — Code of Commerce — Interruption of Prescription.</p> <p>2. Wheré there is a new acknowledgment, this must be made within the three years prescribed by the Code of Commerce to bring an action on a promissory note.</p>

Statement of Facts. Tbis is an application for a preliminary injunction to restrain tbe defendants from taking certain water from tbe Jaeaguas river above wbat is called tbe Aruz pump of tbe plaintiff.

<p>On Motion fob a Continuance.</p> <p>Continuance of Trial — Absent Witnesses — Proper Showing must be Made by Applicant.</p> <p>Where one of the parties requests a continuance of a trial on the grounds that one of his witnesses is absent, he must make a showing under oath as to what the absent witness will testify, and also that the witness will be present at the new setting.</p>

<p>On Demukrek to the Complaint.</p> <p>Allegations of Complaint — Demurrer—Matter of Proof.</p> <p>1. A complaint which alleges that the plaintiff is the heir at law of the decedent is not demurrable because it fails to state how he became the heir, as this is matter of ’proof.</p> <p>Allegations of Complaint — -Demurrer—Principal and Agent.</p> <p>2. A complaint is not demurrable which alleges that the plaintiff’s injuries were caused by the defendant’s negligence when as a matter of fact the injuries were caused by one of the defendant’s agents, as under. § 1804 of the Civil Code a principal is liable for the acts of his agent done in carrying on the principal’s business.</p>

<p>Police Law of Railroads.</p> <p>Negligence — Railroad Engineer.</p> <p>1. The general rules of negligence apply in Porto Rico under § 1803 of the Civil Code. An engineer while handling his train where he cannot see ahead must pursue the same rules of care as obtain elsewhere.</p> <p>Same — Spanish Police Law of Railroads.</p> <p>2. The Police Law of Railroads in force under the Spanish rule seems to make up a system closely connected with Spanish method of government, and is inconsistent with American institutions. This police law must be held to have been abrogated by the American occupation or by the Foraker Act, which substituted a civil government.</p> <p>Same.</p> <p>3. The old rules of care apply. Nevertheless the same care will he exacted of railroad officials under American institutions that was exacted under the Spanish, and so far as practicable the principles and practice found in the old regulations will he considered as the principles and practice as to negligence under the present government.</p>