Gomila, 132 U. S., 478; 10 Sup. Ct., 155; 33 L. Ed., 400; Moran v. Sturges, 154 U. S., 256-265; 14 Sup. Ct., 1019; 38 L. Ed., 981.)"

From an examination of the Bankruptcy Act and of the construction placed upon it in numerous decisions, it is clearly seen that the application for a stay of these proceedings, instituted for the satisfaction of a mortgage lien should be denied; (1) because said lien is prior to the aforesaid Bankruptcy Act; (2) because the proceedings for the recovery of said lien are likewise prior to the declaration of bankruptcy made by Jaime Colón; (3) because aforesaid mortgage was constituted in good faith and without any intention of defeating the purposes of the aforesaid law, which in 1897 did not exist; and (4) because the Arecibo court had previously acquired jurisdiction of the subject-matter and of the parties to the litigation, and under such conditions said court should, in accordance with the law, continue the proceedings to a final determination. And it happens that in this particular case the said national Bankruptcy Law and opinions cited, constituting a sound construction thereof, are in perfect accord with the local Mortgage Law, article 133 whereof reads as follows:

"In no case shall the summary proceedings be suspended, on account of the objections of a third person, if they are not founded on a deed which has been previously recorded, nor by the death of the debtor, nor that of the third party owning the estate, nor by a declaration of bankruptcy, nor by the general assignment proceedings of creditors against any of them."

Upon the strength of the foregoing we are of opinion, and so recommend, that the order of January 5, 1904, as also the concordant order of March 30th of the same year, be reversed, the order to stay the proceedings made by the Arecibo court being hereby vacated, said court to proceed with the foreclosure proceedings according to law.

Decided accordingly.

Justices Hernández, MacLeary and Wolf concurred.

Chief Justice Quiñones did not sit at the hearing of this

case.

THE PEOPLE v. BENÍTEZ.

APPEAL from the District Court of Mayagüez.

No. 17. Decided January 26, 1905.

APPEAL-BILL OF EXCEPTIONS-MANIFEST ERRORS.-Where there is no bill of exceptions, and it not appearing from the record that any error had been committed to justify a reversal of the judgment appealed from, the same may be affirmed.

The facts are stated in the opinion.

Mr. Rossy, Fiscal, for respondent.

The appellant failed to appear at the hearing.

MR. JUSTICE WOLF delivered the opinion of the court as follows:

This case was brought in the Municipal Court of Mayagüez where the first trial was held on the 26th day of August, ultimo; a second trial was held in the district court for that district on the 11th day of November, following, on the appeal taken by the said defendant from the sentence rendered by the municipal court, under which he was fined in the sum of $60, and in default thereof to be imprisoned for sixty days in jail. The district court under date of November 14, 1904, found the defendant guilty of the crime of embezzlement, and imposed upon him a fine of $80 and costs in both instances, or in default thereof to be imprisoned in jail, one day for each dollar unpaid.

An appeal to this court was taken by the said defendant, but in the record transmitted by reason of said appeal there is no copy of any material pleadings, except the complaint, nor is there any allegation made by the appellant of having

had no knowledge of the nature of the charges preferred against him.

There is no bill of exceptions and no record of the evidence introduced, and inasmuch as it does not appear from the record that any error has been committed by the court below in the rendition of its sentence the same should be affirmed with costs taxed against appellant.

Affirmed.

Chief Justice Quiñones and Justices Hernández, Figueras and MacLeary concurred.

EX PARTE BERMÚDEZ.

APPLICATION for a Writ of Habeas Corpus.

No. 43. Decided January 27, 1905.

APPEAL-MUNICIPAL COURTS-JUSTICES OF THE PEACE.-In cases where municipal courts or justices of the peace have original jurisdiction in appeals to a district court the trial will be had de novo on the original complaint. MALICIOUS MISCHIEF PETIT LARCENY CONVICTION OF A CRIME OTHER THAN THE ONE CHARGED IN THE INFORMATION-VOID JUDGMENT.-Where a complaint has been made charging malicious mischief the accused cannot be convicted of the crime of petit larcency, and a court so convicting a defendant exceeds its jurisdiction and the judgment rendered thereunder is void. JUDGMENT IMPOSING FINE-SUBSIDIARY IMPRISONMENT-WARRANT OF ARREST.A judgment imposing a fine upon a defendant, as well as the order for the execution thereof, must specify the term of imprisonment which the accused must serve in default of the payment of such fine; and such imprisonment must not exceed the time for which the accused might have been imprisoned for the crime of which he was convicted.

ID. VOID COMMITMENT.-The commitment without the requirements specified in the foregoing paragraph is substantially defective, and consequently null and void. ID.-HABEAS CORPUS.-Where the court in rendering judgment exceeds its jurisdiction, such judgment being null and void, the commitment issued thereunder is also null and void, and the defendant is entitled to be discharged upon application for the writ of habeas corpus.

The application was filed with Justice MacLeary in chambers.

The facts are stated in the opinion.

Mr. Coll, for petitioner.

Mr. Rossy, Fiscal, for The People.

MR. JUSTICE MACLEARY delivered the following opinion: The petitioner in this case, José Bermúdez, was accused in the Municipal Court of San Juan, of malicious mischief, under section 532 of the Penal Code. He was tried and convicted on this charge and sentenced to four months imprisonment and $100 fine. From this judgment he took an appeal to the District Court of San Juan, where he was tried on the 24th of the present month, and convicted of petit larceny and sentenced to three months imprisonment in jail, and a fine of $100 and costs; and it was ordered that the convict be taken from the court to the common jail of the district and be confined therein for the term of three months and that the fine should be collected as the law requires.

Section 3 of the Code of Criminal Procedure provides that in all cases that are triable before a justice of the peace (or as in this case, before a municipal judge) when appealed to the district court shall be tried on the original complaint and warrant. In such cases the trial shall be de novo."

The original complaint in this case clearly charged malicious mischief under article 532 of the Penal Code. What purports to be a warrant issued by the clerk of the municipal court also charges the said Bermúdez with daños maliciosos, (malicious mischief). On this complaint and warrant the applicant should have been tried in the district court de novo, and presumably was so tried; but he was convicted of a different offense entirely, which is petit larceny, defined and punished under sections 429 and 431 of the Penal Code.

In rendering this judgment the district court exceeded its jurisdiction, and the judgment is consequently void. The warrant of imprisonment is also defective in that it does not

"specify the extent of imprisonment, which must not exceed one day for every dollar of the fine, nor extend in any case beyond the term for which the defendant might be sentenced to imprisonment for the offense of which he has been convicted."

The judgment and the warrant should have said how many days the defendant should have been imprisoned in default of the payment of the fine. Under section 327 a copy of the judgment furnished to the officer whose duty it is to execute the judgment was all the warrant that was necessary to justify or require its execution, but this does not render it unnecessary to comply with the law in fixing definitely the term of imprisonment.

Then as it clearly appears that the jurisdiction of the district court in rendering the judgment on which the applicant was imprisoned has been exceeded, and that the process or warrant is defective in a matter of substance, rendering the process void; under paragraphs 1 and 3 of section 483 of the Code of Criminal Procedure, the prisoner must be discharged from custody, and it is accordingly so ordered.

Application granted.

ROMERO V. RUIZ ET AL.

APPEAL from the District Court of San Juan.

No. 35. Decided January 31, 1905.

INHERITANCE COLLATERAL LINE.—The representation in the collateral line favors only the third degree thereof, which includes only the children of brothers or sisters, whether they be of the whole or the half blood.

ID. The relative nearest in degree excludes the more remote, excepting the right of representation in proper cases.

The facts are set forth in the opinion.