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Supreme Court of the United States.

MONSIGNOR HARTY v. MUNICIPALITY OF VICTORIA.

Appeal from and error to the Supreme Court of the Philippine

Islands.

(226 U. S., 12.)

No. 13. Argued October 30, 1912. Decided November 11, 1912.

SYLLABUS.

9

A suit to recover real estate, like an ordinary action at law, can only be brought

to this court the Supreme Court of the Philippine Islands by writ of

error; it can not be brought by appeal. Where, as in this case, there is no question of law, this court can not, on writ

of error, review the finding of the Supreme Court of the Philippine Islands that the preponderance of contradictory evidence was on the defendant's

side.
Quaere whether in this case the jurisdictional amount of $25,000 was involved.
Appeal from and writ of error to review 18 Phil. Rep., 600, dismissed.

Opinion by Holmes, J. No dissenting opinion.
Appeal and writ of error dismissed.

The facts involve the jurisdiction of this court of appeals from, and error to, the Supreme Court of the Philippine Islands.

This suit was brought by the archbishop of Manila to recover a square in the municipality of Victoria. The church of the town and its parish house stand in this square and they are admitted to be church property, but the land not occupied by them was declared by the Supreme Court to constitute the public square or plaza of the town, devoted to public uses. The plaintiff brought a writ of error and appealed.

Supreme Court of the United States.

BURNET v. DESMORNES Y ALVAREZ.

Appeal from the Supreme Court of Porto Rico.

(226 U. S., 145.)

No. 11. Submitted October 30, 1912.

Decided December 2, 1912.

SYLLABUS.

Whether prescription goes only to the remedy or extinguishes the right, it

affects the jurisdiction no more than any other defense. The judgment of a court that a right is established can not be impeached col

laterally by proof that the judgment was wrong. The provisions of article 137 of the Civil Code of Porto Rico of 1889 and of

section 199 of the act of March 1, 1902, of Porto Rico, requiring actions to claim filiation to be commenced within prescribed periods do not deprive the court of jurisdiction in case the action is not brought until after the prescribed period. It is a defense that must be pleaded.

7345°-S. Doc. 173, 63-1--28

This court will be slow to control the discretion of the Supreme Court of Porto

Rico as to a matter wholly within its power-such as sending a case back

to the lower court for further opportunity to cross-examine. 13 Porto Rico, 18, affirmed.

Opinion by Holmes, J. No dissenting opinion.
Judgment affirmed.

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This was a proceeding by the appellees as illegitimate children of Adolfo Desmornes, deceased, to be adjudged his recognized children. The appellant answered that he was the nephew and heir of Desmornes and denied that the appellees were his children or ever were recognized as such. The District Court held that the action had prescribed under the limitations imposed upon actions of this class by the Civil Codes of 1889 and 1902. This decision was reversed by the Supreme Court on the ground that the bar to the action had not been pleaded, and a decree was entered for the appellees upon a consideration of the evidence taken below.

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Supreme Court of the United States.

Toyota V. TERRITORY OF HAWAII.

Error to the Supreme Court of the Territory of Hawaii.

(226 U. S., 184.)

No. 49. Submitted November 13, 1912. Decided December 2, 1912.

SYLLABUS.

Section 1343, revised laws of Hawaii, imposing a license fee of $600 for

auctioneers in the district of Honolulu and $15 for each other taxation district, is not unconstitutional as depriving an auctioneer in Honolulu of his property without due process of law or as denying him the equal

protection of the laws. On writ of error to a territorial court only such questions are before this court

as can be raised upon writ of error to a State court. What amounts to selling at auction, within the meaning of a license statute, is

for the State or territorial court to determine, and presents no Federal

question reviewable by this court. It is the province of the legislature to determine upon the amount of license fees,

and unless the classification is arbitrary and unreasonable it may establish

different amounts for different districts. This court will assume that the legislature of a State or Territory takes into

consideration the varying conditions in respective localities in which the same business is to be conducted, and unless palpably arbitrary the classic

fication will not be disturbed. In view of the fact that the great bulk of the business of Hawaii is done at

Honolulu this court will not declare that a license fee of $600 for auctioneers in that district is an arbitrary and unreasonable classification

as against $15 for auctioneer's license in other districts of Hawaii. 19 Hawaii, 651, affirmed.

Opinion by Hughes, J. No dissenting opinion.
Judgment affirmed.

The plaintiff in error was convicted in the District Court of Honolulu, Hawaii, of the offense of selling goods at auction, in Honolulu, without an auctioneer's license, and was sentenced to pay a fine of

$600 and costs. The Supreme Court affirmed the conviction and the case comes here on error.

The plaintiff in error contended in the territorial court that he did not sell at auction within the meaning of the statute, and further, that the statute, if it was applicable, denied to him the equal protection of the laws contrary to the fourteenth amendment of the Constitution of the United States because of the discrimination between the district of Honolulu and other districts in the amount of the license fees imposed.

The remaining contention, urged in various forms by the assignments of error, comes to the single point that the statute created an arbitrary classification.

With its intimate knowledge of local conditions, the Supreme Court of the Territory said upon this point: “ The great bulk of the business of the Territory is done in Honolulu. It is not for us to say whether we would make the difference in the amount of license fees in this case as large as the legislature has made it. It is sufficient that we cannot say that the difference is unreasonable or that the statute is unequal or arbitrary in its operation.” We find no ground for a different conclusion.

Supreme Court of the United States.

VEVE v. SANCHEZ.

Error to the District Court of the United States for Porto Rico.

(226 U. S., 234.)
No. 42. Argued November 7, 1912. Decided December 2, 1912.

SYLLABUS.

While a tract may be so well known by name that it can be described and con

veyed without other designation, ordinarily designation by name will yield to the more definite by metes and bounds; and in this case the latter rule

should apply. The construction of the description in a mortgage should not depend on the

amount of land owned by the mortgagor but on the specific boundaries. The general rule in determining what is included in a conveyance is that gen

eral calls for quantity must yield to the more certain and locative lines of

the adjoining owners which are, or can be made, certain. Nothing in this case warrants a departure from this long-established and neces.

sa ry rule of title. In ejectment the plaintiff must recover on the strength of his own title and can

not prove by parol that a part of the land conveyed was not included in the grant; a contrary rule would make every grantee liable to have what had

been conveyed to him taken away by word of mouth. The rule prohibiting written contracts from being varied by parol is not con

fined to the common law, but was in force in Porto Rico in 1885 and since

then. The statement in a conveyance that the grantor is the owner of the property

described estops the grantor from denying his right to convey, and if not the owner at the time his subsequent acquisition inures to the benefit of the

vendee. 4 Porto Rico Fed. Rep., 329, reversed.

Opinion by Lamar, J. No dissenting opinion.

The judgment is reversed and the case remanded for further proceedings in conformity with this opinion.

The facts involve the rights of a mortgagee under a mortgage of land in Porto Rico.

In 1885 Jose Avalo Sanchez mortgaged to Dona Maria Diaz y Siaca a sugar plantation in Porto Rico known as Bello Sitio, described as containing 400 cuerdas, and bounded on the north, south, east, and west by the colindantes, or adjoining land owners, whose names were given. Suit to foreclose was instituted in 1889 and at the end of three years the mortgagee obtained a decree which, however, instead of ending the controversy, was the beginning of litigation in the Spanish courts which is said to have been the most protracted and bitter in the history of the Island of Porto Rico.

The record of the various proceedings is involved and complicated, but it appears that Mrs. Diaz purchased, at the foreclosure sale, and, apparently in accordance with Spanish custom (4 Wall., 261), was put in possession on October 30, 1891. But before she received the judicial deed, attachments were levied on Bello Sitio, on a lot afterwards called Sauri, “in the center of the same," and on certain personalty, as the property of Sanchez. About the same time a concurso of creditors, in the nature of bankruptcy proceeding, was begun against him. The trustee apparently went through the form of taking possession of all property of Sanchez, including Bello Sitio, though without actually evicting Mrs. Diaz. Sanchez himself later instituted proceedings to cancel the mortgage and judicial deed under which Mrs. Diaz claimed title. He failed in this suit, but the other branches of the litigation continued for 16 years and, after the death of Mrs. Diaz, finally terminated in 1907, when the supreme court of the island held that the attachment should be released, the bankruptcy proceedings dismissed, and all the property returned to Sanchez, except Bello Sitio, which was to remain at the disposal of the heirs of Mrs. Diaz.

Both parties seem to have considered this a decision in their favor, the plaintiff claiming that it adjudged to him everything that was not Bello Sitio, and the defendants that it restored to them all that was included in the mortgage.

In the meantime Sanchez (in 1906) filed a bill in the United States court for Porto Rico, in which, as appears from statements in the opinion of the court, he attacked all of the proceedings in the Spanish tribunals as fraudulent and asked that the mortgage foreclosure be set aside and himself declared to be the owner of Bello Sitio. Whether any issue was therein presented, or legally involved, as to boundaries of the land can not, in the absence of a copy of the pleadings, be determined. On demurrer this bill was dismissed for laches and want of equity.

Sanchez then brought the present suit for the recovery of 134 cuerdas of land, lying within the exterior limits of Bello Sitio, and $60,000 as damages for improvements destroyed, crops removed, and mesne profits from 1891 to 1907, during which time, he alleges, that the defendants and their ancestor, Mrs. Diaz, had usurped the premises by means of false and fraudulent claims instituted in the Porto Rican courts. On demurrer the court held that the suit should be treated solely as an action in ejectment.

The defendants plead res adjudicata, title by prescription, and title under the mortgage foreclosure.

a

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Appeal from the Supreme Court of the Philippine Islands.

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No. 77. Submitted December 6, 1912. Decided January 6, 1913.

SYLLABUS.

One whose registered trade-mark is manifestly an imitation of an earlier but

unregistered trade-mark can not restrain a third party from using it. The Philippine trade-mark act expressly denies the right of one fraudulently

using a trade-mark to recover. Section 13 of the treaty with Spain of 1898, protecting industrial property in the

ceded territory, will not be construed as contravening principles of morality and fairness and as protecting a trade-mark fraudulently registered prior to

the treaty. A statute which introduces no new rule is not retrospective. Even if the trade-mark be not registered. if it be well known it is an imposition

on the public to use an imitation of it. Even if a statute makes a certificate of trade-mark conclusive, it must be taken

subject to the general principle of law embodied in the statute to the effect

that trade-marks fraudulently adopted are not protected. Where it does not clearly appear to the contrary this court will assume that the

same principles of honesty and fairness prevail in Spain as in our own law. 13 Phil. Rep, 11, affirmed.

Opinion by Holmes, J. No dissenting opinion.
Judgment affirmed.

a

The facts involve the right to use a trade-mark in the Philippine Islands.

The plaintiff and appellant is a manufacturer of gin and sues to restrain the use of a trade-mark like his own and to recover double damages. The trade-mark consists of two concentric circles having the words Ginebra de Tres Campanas and the plaintiff's name between them, and in the center a device of three bells (Tres Campanas) connected at the top by a ribbon and some ears of grain, with the words Extra Superior under the mouth of the bells. The plaintiff's autograph is reproduced across the middle of the circular space and the bells. More detail is unnecessary; but it may be mentioned that the plaintiff claims title under a grant from the Governor General dated December 16, 1898, and that the mark covered by the alleged grant had underneath the circles the word Amberes (Antwerp), indicating imported gin, while that now used has Manila in the same place and is applied to gin made in the Philippines.

It may be assumed that the defendant's design has a deceptive resemblance to the plaintiff's, notwithstanding a change from Tres Campanas to Dos Campanas and the substitution of the defendant's autograph for the plaintiff's. And whether the plaintiff has a title to the mark now used or not it also may be assumed that he might recover under the Philippine act of March 6, 1903, No. 166, section 4; Compiled Acts, page 180, section 58, but for the following facts, on which the defendant had judgment in both courts below.

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