Armstrong v. Alvarado. 4. An exception to a master's report, not insisted on at the argument, should be overruled. Order filed January 11, 1906. Messrs. Pettingill & Leake, solicitors for complainants. Messrs. H. F. Hord and Luis Llorens, solicitors for defend ant. MCKENNA, Judge, delivered the following opinion: After careful consideration of the oral arguments and briefs submitted herein, the court desires to call attention to an irregularity of practice and violation of the plain and express provisions of equity rule No. 39, in the answer of defendant, in seeking to set up a plea in abatement as to the competency of complainants to maintain this suit. Not having availed himself of the right to plead or demur, as required by this rule, defendant had no right to include in his answer the matter of abatement as a defense; and it must therefore be concluded that by said default he has waived the same. The master's report, however, although not based on this waiver and consequent admission of the competency of complainants to sue, is supported on the authority of the express provision of the section of the Code of Porto Rico making it wholly optional in special ventures, or partnerships on private agreements between merchants, to register the same, as in the case of corporations and other associations. This finding is assigned for error by the defendant, and the court overrules the same, and affirms the master's finding as correct on this question. Armstrong v. Alvarado. At the argument, the only other exception assigned for error, insisted upon, involved the question of the power of the liquidating partner to dispose of an asset of the late firm of Boysen & Company, where said firm owned a fractional or 40 per cent interest, without notice and assent of the co-owner. The testimony before the master disclosed the authority of the late firm of Boysen & Company to sell and dispose of the special assets of said firm. The liquidation did not rescind this right, but devolved the execution of the same as part of the duties of the liquidation. This construction is fully borne out by the action and conduct of defendant Alvarado, who, on receiving notice, did not object, but, on the contrary, fully acquiesced therein. In no sense can this be said to be the making of a new contract in excess of the power or duties of a liquidator. It is in fact but the carrying out of an old or existing contract devolving upon him by law as the liquidator. The court consequently fails to note any error in this conclusion of law of the master, and therefore confirms it. The other exceptions, not being insisted upon at the argument, are overruled. Let a form of decree in accordance with the master's report be submitted. FRANCISCO ANTONGIORGI Y FRANCESCHI v. MANUEL ZENO GANDIA ET AL. Ponce, Equity, No. 204. Where a suit in equity attacks the genuineness and validity of a will under which certain executors are claiming to act, and, upon an application for the appointment of a receiver, it is shown that such executors aré Antongiorgi y Franceschi v. Gandia. allowed by the local law to qualify without the giving of any bond, and that two of such executors are insolvent, while the third has only property much less in value than the money and disposable property which has, or shortly will, come into the custody of the executors, a receiver should be appointed to take charge of the testate estate pending the judicial determination of the genuineness or validity of the alleged will. Order filed March 28, 1906. Messrs. Pettingill, Leake, and Horton, solicitors for complainant. Messrs. H. F. Hord and Wm. H. Hawkins, solicitors for defendants. MCKENNA, Judge, delivered the following opinion: This cause has been submitted on an application for the appointment of a receiver pendente lite, affidavits having been filed by the complainant and the defendants. The parties have been heard at length by their respective solicitors, N. B. K. Pettingill making argument on behalf of the complainant, and Henry F. Hord that on behalf of defendants, and briefs have been filed. The bill, which is verified, alleges that the defendants, Manuel Zeno Gandia, Angel Cesari, and Alejandro Franceschi, who are claiming to act as executors of the alleged last will of Angela Franceschi, received from complainant $35,000 in cash belonging to said estate, and will receive for the present cane crop belonging thereto $75,000 or $80,000 more; that they have given no bond as such executors, and that two of said executors, namely, Manuel Zeno y Gandia and Angel Cesari, are insolvent, and that the other remaining executor has capital not exceeding Antongiorgi y Franceschi v. Gandia. $10,000. The allegation of insolvency is practically undenied by the affidavits filed on behalf of defendants, as to said Manuel Zeno y Gandia and Angel Cesari, and the allegation as to the worth of said third executor, Alejandro Franceschi, is only denied by his own affidavit, in which he claims to be worth from $35,000 to $40,000. Upon full consideration of the briefs and the affidavits filed, from which the foregoing facts are gathered, the court is of the opinion that a receiver should be appointed, who shall duly qualify by taking oath and giving a bond in the sum of $10,000 for the faithful performance of his duties as receiver, and that the defendants Manuel Zeno Gandia, Angel Cesari, and Alejandro Franceschi should be required to deliver to said receiver all the assets and property delivered to them by said complainant, or which have been received by them from any other source belonging to the estate of said Angela Franceschi. An order will be made appointing a receiver and defining his duties. JUAN PUIG Y MARQUEZ v. ANTONIO RIGO SAGRERA. San Juan, Equity, No. 366. 1. An injunction does not lie to restrain libelous and slanderous acts and statements. 2. In such cases there is an adequate remedy at law. Opinion filed June 28, 1906. Willis Sweet, Esq., solicitor for plaintiff Puig y Marquez v. Sagrera. Cay. Coll y Cuchi, Esq., solicitor for defendant. RODEY, Judge, delivered the following opinion: This cause was argued by counsel on a demurrer to the amended bill of complaint, which latter was at that time, by consent of the respective counsel, considered as filed. The complainant alleges that for four and a half years previous to May the 10th, 1905, the parties were engaged as copartners in the bakery business at San Juan, Porto Rico. That on said date the partnership was dissolved by mutual consent, an accounting was had between the parties, complainant purchasing the half interest of the respondent therein and continuing the business; which half interest was at such time ascertained to be worth $3,663, which complainant then and there paid respondent for. That on said date, just before he left the said place of business, the respondent maliciously threw a large quantity of salt into the preparation to be used in baking the usual supply of bread for the business that night, and thus ruined the same, and thereafter went into the street advising the customers of said bakery not to purchase bread thereat because it would not be in a condition to use. That complainant managed to ascertain about this action, and changed the spoiled material for a proper supply in time to prevent the injury to the baked product. That thereafter, on the 23d of July, the said bakery was examined by the proper board of health officers of the city of San Juan, and found to be right and proper in every way. That a little later, on August the 1st of the same year (whether in the regular course of his duty, or on complaint of someone, does not appear), another health inspector visited said NOTE.-As to injunction against libelous publication, see note to Cowan v. Fairbrother, 32 L.R.A. 831. |