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CODE OF CIVIL PROCEDURE
GOVERNMENT PRINTING OFFICE.
Under authority vested in me by law, it is / Ordered, That the within Code of Civil Procedure shall be in force within the Canal Zone on and after May 1,1907.
The White House,
March 00, 1907.
TABLE OF CONTENTS.
Title : The Code of Civil Procedure of the Canal Zone.
Chapter 1. General and preliminary provisions___________________ 1 to 12
Chapter 2. Lawyers, their qualifications and duties_______________ 13 36
Chapter 3. Prescription ; time of commencing action______________ 37 49
Chapter 4. Procedure in district courts--------.------------------ 50 81
Procedure in Circuit Courts in Actions.
Chapter 5. Pleadings___________________________________________ 82 106
Chapter 6. Parties to actions___________________________________107 115
Chapter 7. Various proceedings in circuit courts-----------------116 145
Chapters. Abatement__________________________________________146 172
Chapter 9. Special remedies: Injunctions, receivers, partition of real estate, usurpation of office or franchise, certiorari proceedings, mandate, prohibition, contempt, eminent domain, foreclosure, manual delivery of personal property.
Injunctions_______________________________________________ 173 183
Partition of real estate____________________________________ 192 207
Usurpation of office or franchise___________________________ 208 227
Certiorari proceedings_____________________________________ 228 232
Mandate_________________________________________________ 233 230
Prohibition_______________________________________________ 237 241
Contempt________________________________________________ 242 251
Foreclosure of mortgage___________________________________ 252 259
Manual delivery of personal property_______________________ 260 270
Chapter 10. To establish titles to real property------------------ 271 230
Chapter 11. Ne exeat__________________________________________ 281 290
Chapter 12. Rules of evidence, affidavits, and depositions, perpetuation of testimony:
Rules of evidence_________________________________________ 291 363
Affidavits and depositions__________________________________ 364 368
Depositions_______________________________________________ 369 392
Chapter 13. Venue of actions___________________________________ 393
Chapter 14. Proceedings when judge is disqualified or disabled____ 394 395
Chapter 15. Witnesses_________________________________________ 396 398
Chapter 16. Duties of the clerk of the Circuit Court______________ 399 403
Chapter 17. Process:
Preliminary process_______________________________________ 404 416
Chapter 18. Subpoenas, and compelling attendance of witnesses___ 417 426
Chapter 19. Arrest of defendant________________________________ 427 439
Chapter 20. Attachment of defendant's property---------------- 440 458
Chapter 21. Manner of giving and entering judgment____________ 459 464
Chapter 22. Execution ________________________________________ 465 512
VI TABLE OF CONTENTS.
Chapter 23. Proceedings supplementary to the execution---------513 to 525
Chapter 24. Costs in the several courts_________________________ 526 532
Chapter 25. Proceedings in Supreme Court:
General procedure of the Supreme Court and procedure on
bills of exception________________________________________ 533 549
Chapter 26. Proceedings of Supreme Court in the exercise of its
original jurisdiction_________________________________________ 550 556
Chapter 27. The clerk of the Supreme Court and his duties------ 557 558
Chapter 28. Special proceedings:
Power of judge or court in special proceedings_____________559
Chapter 29. Proceedings in habeas corpus______________________ 560 585
Chapter 30. Guardians, their appointment, duties, powers, and
Guardians of minors______________________________________ 586 593
Guardians of persons of unsound mind_____________________ 594 617
Chapter 31. Trusts, trustees, and proceedings in relation thereto:
Trusts and trustees_______________________________________ 618 631
Chapter 32. Estates of deceased persons:
Settlement of estates without legal proceedings------------- 632 633
Chapter 33. Jurisdiction over estates of deceased persons-------- 634 648
Chapter 34. Wills and the allowance thereof, and duties of executors _____________________*_________________________________ 649 683
Death, removal, etc., of executor or administrator----------- 684 698
Chapter 35. General duties of executors and administrators------ 699 702
Inventory, appraisal, and account--------------------------- 703 720
Chapter 36. Claims against estates, how allowed________________ 721. 732
Chapter 37. Suits by and against executor and administrator----- 733 737
Chapter 38. Property embezzled or secreted, or fraudulently conveyed_______________________________________________1______ 738 742
Chapter 39. Sale of estate_____________________________________743 755
Chapter 40. From what estate debts to be paid__________________ 756 762
Chapter 41. Payment of debts__________________________________ 703 774
Contingent claims________________________________________ 775 778
Chapter 42. Escheats_________________________________________ 779 781
Chapter 43. Distribution of estate______________________________ 782 793
Chapter 44. Adoption and custody of minors-------------------- 794 801
Chapter 45. Appeals in special proceedings______________________ 802 807
Chapter 46. Forms and fees____________'________________________808
Fees_____________________________________________________ 809 819
Chapter 47. Final provisions___________________________________ 820 821
THE CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.
general and preliminary provisions.
Section 1. Interpretation of words.In the interpretation of this Code, unless the context shows that another sense was intended, the word person includes a private corporation; writing includes printing; oath includes affirmation or other solemn declaration in such form as the court shall find to be obligatory upon the conscience of the witness; of unsound mind includes every species of mental deficiency or derangement; bond" includes an undertaking or recognizance; and may be read or and or read and ", if the sense requires it; writ signifies an order or precept in writing issued in the name of the Government, or of a court or judicial officer, and the word process 55 a writ or summons issued in the course of judicial proceedings; and "action" means an ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, or the redress or prevention of i wrong; every other remedy furnished by law is a special proceeding; pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the court; words in the present tense include the future tense, and in the masculine gender include the feminine and neuter genders; and words in the plural include the singular, and in the singular include the plural number; the term dollars means the money of the United States.
The phrase territory of the United States or territories of the United States includes any body politic and any territorial possession under the jurisdiction of the United States.
The word surety or sureties," when occurring in this Code, shall include any surety company authorized to do business under the laws of the Canal Zone, and the single bond of such surety company shall in all cases be deemed sufficient.
" District judge shall mean any judge appointed for any of the existing administrative districts, under whatsoever title known.
But this enumeration shall not be construed to require a strict construction of other general words.
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.
Sec. 2. Construction of Code.The provisions of this Code, and the proceedings under it, shall be liberally construed, in order to promote its object and assist the parties in obtaining speedy justice.
Sec. 3. Powers of deputies.The duty enjoined by statute upon a ministerial officer, and an act permitted to be done by him, may be performed by his lawful deputy.
Sec. 4. How time computed.Unless otherwise specially provided, the time within which an act is required by law to be done shall be computed by excluding the first day and including the last; and if the last be Sunday or a legal holiday it shall be excluded.
Sec 5. Provisions concerning process.Process shall be under the seal of the court from which it issues, be styled The United States of America, Canal Zone, ss: to be signed by the clerk and bear date the day it actually issues.
Sec. 6. Rules of Court.The judges of the Supreme Court shall prepare rules regulating the conduct of business in the Supreme Court and in the Circuit Courts. The rules shall be uniform for all Circuit Courts throughout the Canal Zone. Such rules, when duly made and promulgated and not in conflict with the laws of the United States or the Canal Zone, shall be binding and must be observed, but no judgment shall be reversed by reason of a failure of the court to comply with such rules unless the substantial rights of a party have been impaired by such failure.
Sec 7. Stamped paper.Stamped paper is not required for use in proceedings in any court. But, for uniformity and convenience of folding and filing papers, the rules of court may prescribe the size and form of sheets of paper to be used for all written and printed documents in legal proceedings.
Sec 8. Disqualification of judges.No judge, magistrate, referee, or presiding officer of any tribunal shall sit in any case or proceeding in which he is pecuniarily interested, or related to either party within the sixth degree of consanguinity or affinity, computed according to the rules of the civil law, nor in which nor in the matter out of which the litigation arises he has been a counsel, nor in which he has presided in any inferior judicature when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.
No challenge as to the competency of any of the officials named in this section shall be received or allowed; but if it be claimed that the official is disqualified by the provisions of this section, the party objecting to his competency may, in writing, file with the official his objection, stating the grounds therefor, and the official shall thereupon proceed with the trial, or withdraw therefrom, in accordance with his determination of the question of his disqualification. His decision shall be forthwith made in writing and filed with the other
code of civil procedure of the canal zone.
papers in the case, but no appeal or stay of action shall be allowed from, or by reason of, his decision in favor of his own competency, until after final judgment in his court.
Sec. 9. Civil liability of judges.-No judge, shall be liable to a civil action for the recovery of damages by reason of any judicial action or judgment rendered by him in good faith, and within the limits of his legal powers and jurisdiction.
Sec. 10. Publicity of proceedings and records.The sitting of every court of justice shall be public, but any court may, in its discretion, exclude the public when the testimony to be adduced is of so indecent a nature as to require such exclusion in the interests of morality. The records of every court of justice shall be public records and available for the inspection of any party in interest, at all proper business hours, under the supervision of the clerk having
the custodv of such records.
Sec 11. Incidental powers of courts.Every court shall have power :
1. To preserve and enforce order in its immediate presence;
2. To enforce order in proceedings before it, or before a person or persons empowered to conduct a judicial investigation under its authority;
3. To compel obedience to its judgments, orders, and process, and to the lawful orders of a judge out of court in a pending action or proceeding;
4. To control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter appertaining thereto;
5. To compel the attendance of persons to testify in an action or proceeding pending therein;
6. To administer or cause to be administered oaths in an action or proceeding pending therein, and in all other cases where in the exercise of its powers it may be necessary;
7. To amend and control its process and orders so as to make them conformable to law and justice;
8. To appoint a clerk temporarily should there be a vacancy in said office or should the clerk for any cause be unable to attend to his duties.
Sec 12. Official language.The official language of all courts and their records shall be the English language. But the Supreme Court, or any Circuit Court, may order a duplicate record in the Spanish language to be made and duly enrolled in any action or proceeding, whenever the court shall determine that such duplicate record would promote the public convenience and the interests of the.parties.
Provided, That any party or his counsel may examine or cross-examine witnesses, or make an oral argument in Spanish, the same
code of civil procedure of the canal zone
to be clearly interpreted into English by a court interpreter; and a party or his counsel may submit a written or printed pleading or brief in Spanish, if at the same time he accompany it by a correct English translation.
lawyers, their qualifications and duties.
Sec. 13. Who may practice as lawyers.The following persons, if not specially declared ineligible, are entitled to practice law in the courts of the Canal Zone. All attorneys at law who were permitted to practice their profession within the territory of which the Canal Zone is constituted on or before the 23rd day of Feb-ruary, 1904, will be entitled to practice before the Canal Zone courts upon presenting evidence of this fact.
Sec 14. Qualification of applicants.Other persons who desire to be admitted to the practice, will appear before the Supreme Court, producing a certificate of good moral character, and be examined touching their qualifications to practice law. The subjects upon which they are examined will be Real Estate, Personal Property, Equity, Pleading, Contracts, Administrators and Executors, Criminal Law, and the Codes in force in the Canal Zone.
If in the opinion of the court they exhibit a sufficient acquaintance with the subjects upon which examined to enable them to practice their profession with efficiency a license to so practice will be issued to them, ,y
Sec 15. Study of law.The Supreme Court by rule may require that applicants shall have regularly and attentively studied law for a fixed period before taking the examination, and may specify the kind of evidence necessary to establish the fact.
Sec 16. Place and manner of examinations.Such examinations shall be conducted by the judges of the Supreme Court or by a committee of competent lawyers by them to be appointed, and shall be held at such times as the judges of that court shall provide by general or special rules.
Sec 17. Admission.If upon examination, the candidate is found qualified, the Supreme Court shall admit him as a member of the bar for all the Courts of the Canal Zone, and shall direct an order to be entered to that effect upon its records, and a certificate of such record to be given to him by the clerk of the court, which certificate shall be his license.
Sec 18. Oaths.Before receiving a certificate the applicant shall take and subscribe in court the following oath:
1. T,____________recognize and accept the supreme authority of
the United States of America, in the Canal Zone, and I do swear that
code of civil procedure of the (anal zone. <
I will obev the existing laws which rule in the Canal Zone, as well as the legal orders and decrees of the duly constituted authorities therein; that I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God.
2. I do solemnly swear that I will do no fasehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any false, groundless or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice, but will conduct myself in the office of a lawyer within the courts according to the best of my knowledge and discretion, with all good fidelity as well to the courts as to my clients. So help me God.
These oaths may be taken before any judge of the Supreme Court, and a certificate that the oath has been taken shall be set forth in the license.
Sec. 19. Admission from other jurisdictions,Every resident of the Isthmus of Panama, not a citizen or subject of any foreign government, who has been admitted to practice law in the Supreme Court of the United States, or in any circuit court of appeals, circuit or
district court therein, or in the highest court of any State or Territory of the United States, may be admitted to practice in the courts of the Canal Zone upon the production of his license and satisfactory evidence that such license has not been revoked and that the applicant is of good moral character and professional standing. But the
judges of the Supreme Court may, by general rules, provide that an applicant for admission under this section shall satisfactorily pass an examination upon the codes of law, and procedure in force in the
The applicant under this section shall take the oath above provided before receiving his license.
Sec 20. Lawyers roll.The clerk of the Supreme Court shall keep a roll of all the lawyers admitted to practice in the court, which roll shall be signed by the person admitted before he receives his license.
Sec 21. Disbarments.A member of the bar may be removed or suspended from his office as lawyer by the Supreme Court for any deceit, malpractice or other gross misconduct in such office, or by reason of his conviction of a crime involving moral turpitude or for any violation of either of the oaths aforesaid, or for the willful disobedience of any lawful order of the Supreme Court or Circuit Courts, or for corruptly or willfully appearing as a lawyer for a party to an action or proceeding without authority so to do.
Sec 22. Suspension of lawyers.Circuit Courts may suspend a lawyer from the further practice of his profession for unprofessional conduct in any case, or for conduct in the presence of the Court calculated to bring the administration of justice into derision or contempt. Should such suspension occur in the trial of a case, the party to said
code of civil procedure of the canal zone
action, represented b}^ the lawyer so suspended, shall be entitled to have said case continued until such suspension is removed, or until such time as he mav be reasonably able to secure another lawyer, and shall have the right on such new hearing to have the case tried de
After such suspension such lawyer will not be privileged to practice his profession in any of the courts of the Canal Zone until further action of the Supreme Court in the premises.
Sec. 23. Proceedings upon suspension.Upon such suspension, the judge of the Circuit Court ordering the suspension shall forthwith transmit to the Supreme Court a certified copy of the order of suspension and a full statement of the facts upon which the same was based. Upon receipt of such certified copy and statement, the Supreme Court shall make full investigation of the facts involved and make such order revoking or extending the suspension, or removing the lawyer permanently from the roll, as it shall find the facts to warrant.
Sec. 24. Institution and costs of disbarment proceedings.Proceedings for the removal or suspension of a lawyer may be taken by the court of its own motion, or upon the complaint of another in writing. It shall be the duty of the Prosecuting Attorney for the Canal Zone to appear for the Government in all such proceedings in the Supreme Court and to conduct prosecutions. The costs of the prosecution of such proceedings shall be paid by the Government.
Sec. 25. Hearing of charges.No lawyer shall be removed from the roll or be suspended from the performance of his profession until he has had full opportunity to answer the charges against him, and to produce witnesses in his own behalf and to be heard by himself and counsel, if he so desires, upon reasonable notice. But if upon reasonable notice the accused fails to appear and answer the accusation, the court may proceed to determine the matter ex parte.
Sec. 2G. Authority to appear.No written power of attorney shall be required to authorize a duly enrolled lawyer to appear in court for his client, but the presiding judge may, on motion of either party, and on reasonable grounds therefor being shown, require any lawyer who assumes the right to appear in an action or proceeding to produce or prove the authority under which he appears, and to disclose, whenever pertinent to any issue, the name of the person who employed him, and may make any order that justice may require on such investigation; but, prima facie, lawyers shall be held properly authorized to represent any causes they may appear in.
Sec. 27. Authority to bind their clients.Lawyers have authority to bind their clients in any action or proceeding by any agreement in relation to the cause made in writing, in entering appeals, and in all matters of ordinary judicial procedure. But they can not, with-
code of civil procedure of the canal zonk. 9
out special authority, compromise their client's litigation, or receive anything in discharge of a client's claim but the full amount in
Sec. 28. Unauthorized appearances; contempt.A lawyer willfully appearing in court for a person without being employed, unless by leave of the court, is guilty of contempt of court, and may be fined a sum of not less than one hundred dollars and not more than one thousand dollars by the court in which such unauthorized appearance has been entered.
Sec. 29. Lawyers'* fees.A lawyer shall be entitled to have and recover from his client no more than a reasonable compensation for the services rendered, having in view the importance of the subject-matter of the controversy, the extent of the services rendered, and the professional standing of the lawyer. But in such cases the court shall not be bound by the opinion of lawyers as expert witnesses as to the proper compensation, but may disregard such testimony and base its conclusion on its own professional knowledge. A written contract for services shall control the amount of recovery if found by the court not to be unconscionable or unreasonable.
Sec. 30. Retention of clienVs funds.When a lawyer unjustly retains in his hands money of his clients after it has been demanded, he may be dealt with as for contempt of court, and may, after due hearing, be imprisoned until he pays over his client's moneys ascertained to be unlawfully in his hands, for a period not exceeding six months in all. But proceedings under this section shall not be a bar to a criminal prosecution for embezzlement.
Sec. 31. Inviolability of communications of clients.A lawyer must strictly maintain inviolate the confidence and preserve the secrets of his client. He shall not be permitted in any court, without the consent of his client, given in open court, to testify to any facts imparted to him by his client in professional consultation, or for the purpose of obtaining advice upon legal matters.
Sec. 32. Change of laxvyers.A lawyer may retire at any time from any action or special proceeding, by the written consent of his client filed in court, and a client may at any time dismiss his lawyer or substitute another in his place. A lawyer may also retire at any time from an action or special proceeding, without the consent of his client, should the court, on notice to the client and lawyer, and on hearing, determine that he ought to be allowed to retire. In case of such substitution, the name of the lawyer newly employed shall be entered on the docket of the court in place of the former one, and written notice of the change shall be given to the adverse party.
Sec. 33. Employment of lawyers not required.Any party may conduct his litigation in a court of a district judge, in person or with the aid of an agent or friend appointed by him for that pur-
10 code of civil procedure of the canal zone.
pose, or with the aid of a lawyer; in any other court a party may conduct his litigation personally or by the aid of a lawyer, and his appearance must be either personal or by the aid of a duly authorized member of the bar.
Sec. 34. Lawyers for destitute litigant*.The Supreme Court and Circuit Courts may, in their discretion, assign any lawyer to render professional aid to a party, in pending action, free of charge, if such court, upon full investigation shall find that the party is destitute and unable to employ a lawyer and that the services of counsel are necessary to secure the ends of justice and to protect the rights of the party. Upon such assignment, it shall be the duty of the lawyer assigned to render the required services, unless he shall be excused therefrom by the court for sufficient cause shown.
Sec. 35. Judges as lawyers.-No judge of the Supreme Court or Circuit Court, or clerk of court nor the prosecuting attorney or assistant prosecuting attorney shall be allowed to act as a lawyer or to give professional advice to clients while holding office.
Sec. 36. Lawyers'* liens.A lawyer shall have a lien upon all the funds and papers and documents of his client which may lawfully have come into his possession, and may retain the same until his lawful fees and disbursements due to him from his client have been paid, and may apply such funds to the satisfaction thereof. He shall also have a lien to the same extent upon all judgments and decrees for the payment of money, and executions issued in pursuance of such judgments and decrees which he has secured in a litigation of his client, from and after, but not before, the time when he shall have caused a statement of his claim of such lien to be entered upon the records of the court rendering such judgment or decree, or issuing such execution, and shall have caused written notice thereof to be
delivered to the adverse party, and shall have the same right and power over such judgments, decrees, and executions to enforce his lien as his client had or may have, to the extent that may be necessary for the payment of his just fees and disbursements.
Chapter III. prescription ; time of commencing action.
Sec. 37. To what this chapter does not apply.This chapter shall
not apply to actions already commenced, or to cases wherein the right
of action has already accrued; but the statutes in force when the
action or right of action accrued shall be applicable to such cases
according to the subject of the action and without regard to the form; nor shall this chapter apply in the case of a continuing and
code of civil procedure of the i anal zone.
subsisting trust, nor to an action by the vendee of real property in possession thereof to obtain the conveyance of it.
Sec. 38. Special limitations excepted.Civil actions can only be commenced within the periods prescribed in this chapter after the cause of action accrues; but where a different limitation is prescribed by this Code, that shall govern.
Sec. 39. Period of prescription as to real estate.Except in the
case of the Government of the United States or the Canal Zone an
action for recovery of title to, or possession of, real property, or an interest therein, can only be brought within ten years after the cause
of such action accrues.
Sec 40. Title to land by prescription.Ten years' actual adverse
possession by any person claiming to be the owner for that time of
any land or interest in land, uninterruptedly continued for ten years
by occupancy, descent, grants, or otherwise, in whatever way such
occupancy may have commenced or continued, except in the case of
public lands, shall vest in every actual occupant or possessor of such
land a full and complete title, saving to the persons under disabilities
the rights secured by the next section. In order to constitute such
title by prescription or adverse possession, the possession by the
claimant or by the person under or through whom he claims must have been actual, open, public, continuous, under a claim of title exclusive of any other right and adverse to all other claimants. But failure to occupy or cultivate land solely by reason of war shall not be deemed to constitute an interruption of possession of the claimant, and his title by prescription shall be complete, if in other respects perfect, notwithstanding such failure to occupy or cultivate the land during the continuance of war.
Sec 41. Exceptions in favor of persons under disability.If a person entitled to bring the action mentioned in the preceding sections in this chapter is, at the time the cause of action accrues, within the age of minority, of unsound mind or in prison, such person may, after the expiration of ten years from the time the cause of action accrues, bring such action within three years after such disability is removed.
Sec 42. Other civil actions; how limited.Civil actions other than for the recovery of real property can only be brought within the following periods after the right of action accrues:
1. Within ten years: An action upon an agreement, contract, or promise in writing, or upon the judgment or decree of a court;
2. Within five years: An action upon a contract not in writing, whether such contract is expressed or implied, and an action upon a liability created by a statute other than a forfeiture or penalty;
3. Within two years: All actions for an injury to or trespass upon real estate; for the recovery of personal property; for the recovery
code of civil procedure of the canal zone
of damages for taking, retaining or injuring personal property; for an injury to the rights of the plaintiff not arising on contract and not hereinafter enumerated; for relief on the ground of fraud; shall be commenced within two years next after the cause of action accrued, except that in action for relief on the ground of fraud, the right of action in such cause shall not be deemed to have accrued until the discovery of the fraud.
4. Within one year: Action for injury to the person; action for libel or slander; for assault, battery, malicious prosecution or false imprisonment, or for injuries resulting therefrom; action upon a statute for a penalty or forfeiture; shall be brought within one year after the cause of action accrued, but where a different limitation is prescribed in the statute by which the remedy is given the action must be brought within the period so limited.
Sec 43. For other relief.An action for relief not herein provided for can only be brought within ten years after the cause of action accrues.
Sec 44. Rights set red to certain persons.If a person entitled to bring any action mentioned in either of the two last preceding sec-
tions is, at the time the cause of action accrues, within the age of minoritj', of unsound mind, or in prison, such person may bring such action within two years after the disability is removed unless the right of action is one of those named in subdivision four of section forty-two, in which case it may be brought within one year after such
disability is removed.
Sec 45. When action deemed commenced.An action shall be deemed commenced within the meaning of this chapter, as to each defendant, at the date of the filing of the complaint in court, but if an additional defendant is made after the commencement of the action, the action shall be deemed commenced within the meaning of this chapter, as to such defendant, at the date of the summons which is served on him.
Sec 46. As to absent persons.If, when a cause of action accrues against a person, he is out of the Canal Zone, or has absconded or concealed himself, and has not known or visible property within the Canal Zone, the period limited for the commencement of the action shall not begin to run until he comes into the Canal Zone or while he is so absconded or concealed, or until he has known or visible property within the Zone; and if, after the cause of action accrues, he departs from the Canal Zone, or absconds or conceals himself, the time of his absence or concealment shall not be computed as any part of the period within which time the cause of action should be brought.
Sec 47. // barred at place where cause of action arose, barred
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 13
here.If, by the laws of the state or country where the cause of action arose, the action is barred, it is also barred in the Canal Zone.
Sec 48. Saving in other cases.If, in an action commenced, or attempted to be commenced, in due time, a judgment for the plaintiff be reversed, or if the plaintiff fail otherwise than upon the merits, and the time limited for the commencement of such action has, at the date of such reversal or failure, expired, the plaintiff, or, if he die and the cause of action survive, his representatives may commence a new action within one year after such date, and this provision shall apply to any claim asserted in any pleading by a defendant.
Sec 49. What shall renew right of action.When payment has been made upon any demand founded upon contract, or a written acknowledgment thereof or a promise to pay the same has been made and signed by the party sought to be charged, an action may be brought thereon within the time herein limited, after such payment, acknowledgment, or promise.
procedure in district courts.
Sec 50. Summons.Every action before a district judge, except as otherwise provided, shall be commenced by summons, which shall be in the following form, as nearly as the case will admit, viz:
u United States of America,
" Canal Zone, ss:
" The Government of the Canal Zone, to any marshal of said Canal Zone, greeting:
" You are hereby commanded to summon A. B. to appear before
me at____________on the____day of______at____o'clock__M,
to answer the complaint of C. D. for a failure to pay him a certain demand, not exceeding one hundred dollars, and hereof make due return, as the law directs.
" Given under my hand this____day of______19__.
In which summons the district judge shall specify a certain place, day and hour which shall be between the hours of eight o'clock a. m. and 4 o'clock p. m. for the trial, not less than five nor more than fifteen days from the date of such summons, at which time and place the defendant is to appear. Every summons shall be served at least three days before the time of trial mentioned therein, by reading the same to the defendant.
Sec 51. The complaint.The complaint shall state the name and residence of the plaintiff and that of the defendant, the substance of the claim made, the grounds of action, the amount sought to be recovered, and the date when the claim is presented to the court.
code of civil procedure of the canal zone.
Sec. 52. Nonsuit.If the plaintiff does not appear at the time and place designated in the summons, the judge may dismiss the action for failure to prosecute, and render judgment for the defendant to recover his lawful costs. But such dismissal without hearing shall not be a bar to a subsequent action for the same cause.
Sec 53. Default.If the defendant does not appear at the time and place designated in the summons, judgment may be rendered against him by default, and the court shall thereupon proceed to hear the testimony of the plaintiff and his witnesses as to the amount which the plaintiff is entitled to recover, and shall render judgment for the plaintiff to recover of the defendant such sum as he finds established by the evidence to be justly due with lawful costs; but in all actions for the recovery of money under a contract, express or implied, where the cause of action is set forth in a complaint verified by the plaintiff, judgment by default for the amount sued for may be entered without taking the testimony of the plaintiff and his
Sec. 54. Vacating nonsuits and defaults.Within two hours after the entry of a nonsuit or default as provided in the last two preceding sections, the court may strike off the entry of nonsuit or default and allow the party nonsuited or defaulted to have a trial upon the merits of the cause, if such party shall appear and make it manifest to the court that his failure to appear at the time designated occurred by reason of fraud, accident, or mistake.
Sec 55. Trial.The defendant may interpose any lawful defense, including a counterclaim or plea in offset, for any sum not exceeding
the jurisdictional limit of a district court, verbally, without written pleadings. The plaintiff may make an opening statement by himself, his agent or counsel, if he so desires, explaining the character of his claim, and the defendant, personally or by his agent or counsel, may make a like opening statement, if he so desires, explaining the character of his defense or counterclaim. Upon the conclusion of the opening statement, the court shall hear the testimony of the plaintiff and his witnesses; afterwards, the testimony of the defendant and his witnesses, all under the sanction of an oath. Upon the conclusion of the testimony in behalf of the defendant, the plaintiff may offer rebutting testimony. When the testimony has been closed, the defendant or his agent or counsel shall be heard in argument, if he so desires, and upon the conclusion of his argument the plaintiff or his agent or counsel shall be heard, if he so desires.
Sec 56. Testimony.All testimony, except documentary, shall be given orally in court, at the time of trial, unless the written testimony of witnesses shall have previously been taken in accordance with general law upon that subject and produced at the trial in the form of depositions.
code of civtl procedure of the canal zone. 15
Sec. 57. Adjournment.District courts shall have power to adjourn the hearing of an action from day to day as the interests of
justice may require, but shall not have the power to adjourn hearings for a longer period than one week for each adjournment, nor for
more than three months in all.
Sec. 58. Power to punish for contempt of court.District judges may summarily impose a fine not exceeding five dollars, or sentence to imprisonment for a period not exceeding one day, or impose both of such punishments, upon a person guilty of misbehavior in the presence of or so near the district judge as to obstruct him in the performance of his judicial duties.
Sec. 59. Judgments.At the conclusion of the trial, the judge shall render judgment for the plaintiff to recover such sum as he finds to be justly his due, with costs; or for the defendant to recover his costs, as the law and evidence may warrant. If there is a counterclaim or plea in offset the judge shall render judgment for the sum found in arrear from either party, with costs. But he may adjourn the disposition of the case to a stated day, not exceeding one week from the time of the conclusion of the trial, for the consideration of judgment, if he require time for consideration.
- Sec. 60. Form of judgment.The entry of judgment need not state the facts or conclusions arrived at by the judge, but shall be substantially in the following form only:
" Judgment for the plaintiff to recover______dollars damages
and costs of the action; 55 or
" Judgment for the defendant to recover his costs," if he shall not be entitled to anything on a counterclaim; or, Judgment for the
defendant to recover______dollars and his costs," if he shall have
established a counterclaim in excess of the demand established by the plaintiff. 9 .
Sec. 61. AYitnesses may be subpoenaed.At the instance of either party the judge may at any time after the commencement of the action issue a subpoena directed to any witness whose testimony may be desired, requiring his attendance as a witness at a time and place therein specified, which subpoena shall be served upon the witness in the same manner as has been above provided for the service of a summons to the defendant, and his lawful fees as a witness shall, if he require it, be then tendered to him. If the witness fails to appear at the time and place specified in the subpoena, the judge may issue a warrant upon which he may be seized and brought before the judge and compelled to testify, and the costs of such warrant and seizure of the witness shall be paid by the witness if the judge shall determine that his failure to answer the subpoena was willful or without excuse.
Sec. 62. Dockets.Every district judge shall keep a well-bound
16 code of civil procedure of the canal zone.
book, styled Docket," upon each page of which shall be room for
entries as to two actions, entries as to one to occupy the upper half of
the page, and, as to the other, the lower half. Upon it he shall
enter the names of the plaintiff and defendant in any suit brought
before him; the time of issuing process, and when returnable; the
appearance or default of the person summoned to appear; the names
of the witnesses sworn; the date and amount of the judgment; the
date of issuing execution, when one is issued, and a copy of the
return thereon; the appeal, when and by whom demanded, and, briefly, all the proceedings before him touching the suit.
Sec. 63. Entry to identify docket.Each district judge shall, at
the beginning and in front of all his entries in his docket, make
and subscribe substantially the following entry, to wit:
" A docket of proceedings in matters civil and criminal before
_____________district judge of the administrative district of______
" Witness my signature,
Sec. 64. Final disposition of dockets.Every district judge whose term of office shall expire, or who shall resign, remove from the Zone, or otherwise go out of office and the legal representative of every district judge who shall die, shall, within ten days thereafter, deliver his docket, with all process and papers and books relating to his office, to the clerk of the Circuit Court of the judicial circuit of the district; and if any district judge shall refuse or neglect to deliver such docket, process, papers and books, to said clerk as required, or, in case of his death, should his legal representative fail so to do, he or they shall be guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding five hundred dollars, or by imprisonment for not more than six months, or by both. Said clerk shall keep in his office such docket, process, papers, and books as public records, and shall certify copies thereof, while kept by him, whenever lawfully demanded. While such docket, process, papers, and books are in the custody of the clerk, if there shall be on such docket any judgment unexecuted, the clerk may issue execution upon such judgment, and the execution so issued shall have the same effect as if issued by the judge who rendered the judgment.
Sec. 65 Execution.If no appeal from a judgment of a district judge shall be perfected as herein provided, the district judge shall, at the request of the successful party, issue an execution for the enforcement of the judgment, at the expiration of the time limited by law for the perfection of an appeal.
Sec. 66. When judge is disqualified.When a judge is disqualified from presiding, or where there is no judge in the district where
CODE OF CIVIL PROCEDURE OF the canal zone
the action is to be brought, or there is one and he refuses to serve, generally or in any particular case, and there is no auxiliary judge in the district competent and able to sit, any district judge of the Zone shall be authorized to issue all process and to preside in the particular case and in the administrative district in which the action
shall be brought.
Sec G7. Appeals.Either party to an action before a district judge ma}^ appeal from the judgment of the judge to the next regular stated term of the Circuit Court to be held within the circuit in which
the judgment was rendered in the manner herein provided.
Sec 68. Effect of appeals.A perfected appeal shall operate to vacate the judgment of the district judge, and the action when duly entered in the Circuit Court shall stand for trial de novo upon its merits in accordance with the regular procedure in that court, as though the same had never been tried and had been originally there commenced.
Sec 69. Appeals, how perfected.Within five days after the rendition of a judgment by a district judge, the party desiring to appeal may file with the judge a written statement that he appeals to the Circuit Court, and shall, within said period of five days, give a bond with sufficient surety to be approved by said judge, payable to the opposite party, in the penal sum of one hundred dollars, conditioned for the payment of all such costs in the action as finally may be awarded against him. The filing of such statement and giving of such bond shall perfect the appeal.
Sec 70. Copy of record to be transmitted.The district judge, upon the perfection of the appeal, shall prepare and certify his record to the following effect namely:
" Copy of the record of the proceedings before____________the
district judge of the district of ____________ in the Canal
Zone, in the case herein set forth, to wit: (Here copy the entries on the docket and certify as follows, namely:)
" Canal Zone, District of____________, I,____________district
judge of the said district, certify that the foregoing is a copy of the record and proceedings before me in the case stated therein as appears on my docket.
" Given under my hand this____day of______, A. D. 19__.
Sec 71. Papers to be delivered to clerk of Circuit Court.The district judge from whose decision an appeal shall be taken shall, on or before the first day of the next term of the Circuit Court for the circuit in which the same is returnable, transmit to the clerk of that court a certified copy of the record of proceedings, with all the original papers and process in the case, and the original appeal bond
18 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.
given by the appellant, or if money bond was taken said money, and
the clerk shall docket the same in the Circuit Court, and shall be
entitled to the same fees, upon such appeals, as for similar services in suits originating in said court. The district judge shall at all
times be allowed, and, in the interest of justice, may be required, by the Circuit Court, to amend his return according to the facts.
Sec 72. Settlement of appeal cases.At any time after the perfection of an appeal from a judgment of a district judge and before the papers have been transmitted to the clerk of the Circuit Court to which the action is appealed, the parties may adjust the controversy by agreement in writing, signed by both parties and lodged with the judge, who shall enter the same upon his docket, and no further proceeding shall thereafter be taken in the action. But
if the appeal papers have already been transmitted to the clerk of the Circuit Court, then the judge shall immediately transmit the compromise agreement to the clerk of the Circuit Court, who shall file the same and enter a memorandum thereof upon his docket, and no further proceedings shall thereafter be taken in the action.
Sec 73. Forcible entry into and detainer of land or buildings. Anyone deprived of the possession of land, or a building, by force, intimidation, fraud, strategy, or stealth, and any landlord, vendor, vendee, or other person, against whom the possession of land or a building is unlawfully withheld, by his tenant, vendee, vendor, or other person, after the expiration of his right by contract express or implied, to hold possession, and the legal representatives or assigns of him who is so deprived of possession, or from whom possession is so withheld, as against him who so obtains possession or withholds possession after the expiration of his rights, and all persons claiming to hold under him, shall, at any time within one year after such deprivation or unlawful withholding of possession be entitled to restitution of possession, and to damages, in a district court, in the manner hereinafter prescribed. The owner of land, or of a building, occupied by a tenant, may likewise obtain restitution or possession of the premises, and recover rents due and damages, in the manner next hereinafter provided, when the tenant for ten days after due demand for payment of rent due for the occupancy of the premises shall have refused or neglected to make payment of the same.
Sec 74. The complaint.The party turned out of possession, or held out of possession, may institute an action before any district judge of the district in which the land or building, or some part thereof, is situated, to recover possession thereof and damages. The complaint shall be substantially in the following form: %
" The plaintiff (naming him) complains that the defendant (naming him) has unlawfully turned him out of possession (or unlawfully withholds from him the possession, as the case may be) of certain
code of civil procedure of the canal zone. 19
lands and building (here describe the premises) lying and being within said district, whereof he prays the possession, and he also prays for just damages and costs.
"(The plaintiff naming him.)55
The complaint shall be verified by the oath of the plaintiff, or his agent or attorney, and certified by the district judge before whom the action is instituted. Process shall issue to and be served upon the defendant, as in other actions before a district judge.
Sec. 75. Trial.-The action shall be tried in the same manner as other actions before a district judge.
Sec. 76. Continuance, and obligation therefor.No continuance shall be granted for a longer period than one week, unless the defendant applying therefor shall give an obligation to the adverse party, with good and sufficient sureties to be approved by the judge, conditioned for the payment of rent and damages that may accrue, if judgment be rendered against the defendant.
Sec. 77. Judgment.If, upon trial, the court shall find that the complaint is not true, it shall enter judgment against the plaintiff for costs. If it finds the complaint to be true, it shall render judgment against the. defendant in favor of the plaintiff for restitution of the premises, and costs of suit, and for all arrears of rent, or a reasonable compensation for the use and occupation of the premises.
Sec. 78. The execution.When a judgment of restitution shall be entered by the justice, he shall, at the request of the plaintiff, his agent or attorney, issue a writ of execution thereon, which shall be in the following form, as near as practicable:
" The Canal Zone,
" To any officer authorized to serve process in the district of
" Whereas, in a certain action for the forcible entry and detention (or forcible detention, as the case may be) of the following-described premises, to wit, (here describe them) lately tried before me, wherein
____________was plaintiff and____________was defendant, judgment
was rendered on the____day of______A. D. 19__, that the plaintiff
have restitution of the premises, and also that he recover damages to
the amount of______dollars; also that he recover costs in the sum
of______dollars. You are therefore hereby commanded to cause
the defendant to forthwith remove from said premises, and that the said plaintiff have restitution of the same; also that you levy upon the goods and chattels of the said defendant and collect from him the rent, damages, and costs aforesaid, and costs of this execution and service thereof, in due form of law.
" Witness my hand this____day of______A. D. 19__
But such execution shall not issue within five clays from the date of the judgment, nor if an appeal to the Circuit Court has been per-
20 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.
fected by the due execution and delivery of the obligation referred to in section eighty-one.
Sec. 79. Service of execution.The officer shall, upon receiving the execution, execute the same, by restoring to the plaintiff the possession of the premises, and shall levy and collect the rent, damages, and costs awarded, and make return, as upon other executions.
Sec. 80. Such judgment not conclusive in another action.A judgment rendered in a suit of unlawful entry and detainer, either for the plaintiff or defendant, shall not bar an action in the Circuit Court between the same parties respecting title to the land or building; nor shall any judgment given therein be held conclusive of the facts found in another action between the same parties.
Sec. 81. Appeal.Either party may appeal from the judgment of the district judge to the Circuit Court and the suit shall therein be conducted as appeals from district judges in other civil actions: if the plaintiff recovers possession of the premises in the Circuit Court, he shall have judgment for the amount of rents or damages then due. If the defendant appeals from the judgment of the judge he shall give an obligation to the plaintiff with sufficient sureties, to be approved by the judge, to enter the action in the Circuit Court, and to pay rent then due, and intervening rent, damages, and costs; and the defendant and the sureties shall be liable upon their obligation for such rent, intervening rent, damages, and costs, down to the time of the final judgment in the action. The appeal shall not be allowed until such obligation has been filed with the judge, and the obligation shall be transmitted by the judge with the other papers to the clerk of the Circuit Court to which the action is appealed.
PROCEDURE IN CIRCUIT COURTS IN ACTIONS.
Sec. 82. Pleadings.The only pleading allowed on the part of the
plaintiff shall be:
1. The complaint ;
2. The demurrer to the answer; And on the part of the defendant :
1. The demurrer to the complaint;
2. The answer.
Sec. 83. Complaint.The complaint is a statement in a methodical and logical form of the circumstances which constitute the plaintiff's cause of action. The complaint must contain:
1. The name of the court and circuit in which the action is brought, and the names of the parties to the action;
code of civil procedure of the canal zone. 21
2. A brief statement of the facts constituting the cause of action, in ordinary and concise language without argument or unnecessary rejDetition with a reference by number or page to the sections of the several codes, if any, upon which the action is founded. If the complaint contains more than one cause of action, each distinct cause of action must be set forth in a separate paragraph containing all the facts constituting the particular cause of action;
3. A demand for the relief which the plaintiff claims.
4. Where documents are relied upon they shall accompany the memorial or complaint. A properly authenticated copy of any document, made by an officer in charge of the archives in which the original is kept, may be used in evidence in lieu of the original.
5. All pleadings in the case must be written either in English or Spanish, and must be on regular legal cap paper, and written on but one side, and always be furnished in duplicate. For convenience, papers in the case written on typewriter are desirable, although not obligatory.
6. All pleadings in the case shall be translated from Spanish to English if necessary by the officers of the court free of charge to those offering same.
7. All documents and exhibits of whatever character and kind shall be furnished to the court with a translated copy, if in Spanish; or, in case they do not so furnish them, the party offering the same shall deposit a fund sufficient to have them translated from Spanish into English.
8. The rate of translating from Spanish to English shall be fifty cents per typewritten page of three hundred words.
9. Documents not accompanying the memorial, petition or complaint, or the answer, or the counter-claim, or some other pleading in
the cause, may be excluded b}^ the court unless the same are offered a
sufficient length of time before the trial to have the same properly
translated, unless some sufficient reason for their non-production
earlier is given or the court admits the same for other good and
10. If the recovery of money or damages is demanded, the amount demanded must be stated. If special relief, such as an order for the specific restitution of property, or the specific enforcement of a written contract for the sale of property, or an injunction is sought, the ground of demanding such relief must be stated and the special relief prayed for. But there may be added to the statement of the specific relief demanded a general prayer for such further or other relief as shall be deemed equitable.
Sec 84. Demurrer to the complaint.The demurrer is an allegation that, admitting the facts of the preceding pleading to be true, as stated by the party making it, he has yet shown no cause why the
22 code of civil procedure of the canal zone.
party demurring should be compelled by the court to proceed further. It imports that the objecting party will not proceed, but will wait the judgment of the court, whether he is bound so to do. The defendant may demur to the complaint, or to the statement of any distinct cause of action therein set forth, within the time fixed by general rules of court for such pleadings when it appears upon the face thereof, either:
1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; or
2. That the plaintiff has not legal capacity to sue; or
3. That there is another action pending between the same parties for the same cause; or
4. That there is a defect or misjoinder of parties, plaintiff or defendant; or
5. That the complaint is ambiguous, unintelligible, or uncertain; or
6. That reference to the section of the Code upon which the plaintiff relies to sustain his action has not been made; or
7. That the complaint does not state facts sufficient to constitute a
cause of action.
The demurrer must distinctly specify the grounds upon which any of the objections to the complaint, or to any of the causes of action therein stated, are taken.
Sec. 85. Matters not apparent of record.-When any of the matters enumerated in section eighty-four do not appear upon the face of the complaint, the objection can only be taken by answer.
Sec. 80. Effect of failure to object.If no objection be taken to the complaint, either by demurrer or answer, the defendant shall be deemed to have waived all objections excepting only the objection to the jurisdiction of the court, over the subject-matter, and that the complaint does not state facts sufficient to constitute a cause of action.
Sec. 87. The answer.The answer is a defense in writing, made by a defendant to the charges contained in a complaint filed by the plaintiff against him. The answer of the defendant shall contain:
1. A general or specific denial of the material allegations of the complaint, controverted by the defendant. A general denial puts in issue only the material allegations of the complaint;
2. A statement of any new matter constituting a defense or counterclaim. A material allegation of the complaint which is neither
general nor specifically denied in the answer shall be deemed to have been admitted.
Sec. 88. Defendant having conntercLthn.The defendant may set forth by answer as many defenses and counterclaims as he may have, whatever their nature. They must be separately stated, and the several defenses must refer to the cause of action which they are intended to answer, in a manner by which they may be intelligibly
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 28
distinguished. The defendant may also answer one or more of the several causes of action stated in the complaint, and demur to the
Sec. 89. Character of counterclaim.A counterclaim, to be available as a defense in an answer, must be one in favor of all the substantial defendants and against all the substantial plaintiffs in the action.
Sec 90. Effect of omission to set up counterclaim.If the right out of which the counterclaim arises exists at the time of the commencement of the action and arises out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or is necessarily connected with the subject of the action, neither the defendant nor his assignee can afterwards maintain an action against the plaintiff therefor, if the defendant omits to set up a counterclaim for the same. But if the counterclaim arises out of transactions distinct from those set forth in the complaint as the foundation of the plaintiff's claim and not connected with the subject of the action, the defendant shall not be barred from any subsequent action upon such counterclaim by reason of his failure to set it up in his answer to the pending action.
Sec 91. Cross complaint.Whenever the defendant seeks affirmative relief apart from the payment of money, he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a cross complaint. The defendants to the cross complaint may demur or answer thereto as they would to an original complaint. Where it is necessary for the defendant to bring a new party or parties before the court, he shall so state in his cross complaint and a summons shall issue and other proceedings be had, as in the case of an original complaint.
Sec 92. Demurrer to answer.The plaintiff may, within a period to be fixed by general rules of court, demur to the answer of the defendant or to one or more of the several defenses or counterclaims set up in the answer, so as thus to test the legal sufficiency of the answer. 'i
Sec. 93. Grounds of demurrer to answer.The demurrer may be taken upon one or more of the following grounds:
1. That the answer does not state facts sufficient to constitute a defense or counterclaim;
2. That the answer is ambiguous, unintelligible, or uncertain. The demurrer must distinctly specify the grounds upon which any
of the objections to the answer are taken.
Sec. 94. Proceedings on demurrer.AVhen a demurrer to any pleading is sustained, the party whose pleading is thus adjudged defective may amend his pleading within a time to be fixed by the court, with or without terms, as to the court shall seem just; but if
24 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.
the party fails to amend his pleading within the time limited or elects not to amend, the court shall render such judgment upon the subject-matter involved in the pleading and demurrer as the law and the
facts of the case as set forth in the pleadings warrant. If the demurrer is overruled, the court shall proceed, if no answer is filed, to render such judgment as the law and the facts duly pleaded warrant. But after the overruling of a demurrer to an answer the plaintiff may amend his complaint, if necessary, to meet new facts or counterclaims set forth in the answer.
Sec. 95. Authentication of pleadings.Every pleading must be subscribed by the party or his attorney and a copy thereof must be forthwith furnished to the adverse party or his attorney.
Sec 96. Actions and defenses based upon written instruments. When an action is brought upon a written instrument and the complaint contains or has annexed a copy of such instrument, the genuineness and due execution of the instrument shall be deemed admitted, unless specifically denied under oath in the answer; and when the defense to an action, or a counterclaim stated in an answer, is founded upon a written instrument and the copy thereof is contained in or annexed to the answer, the genuineness and due execution of such instrument shall be deemed admitted, unless specifically denied under oath by the plaintiff in his pleadings.
Sec 97. Plaintiff* s reply to new matter contained in answer.The plaintiff may reply to any new matter or special defense set up in the defendant's answer by an amendment to his complaint, which may be filed as a matter of course and without terms, within a period to be fixed by rules of court. If the plaintiff does not amend his complaint, as provided in this section, he shall be deemed to have controverted every material statement of the answer.
Sec 98. Supplemental complaint or answer.The plaintiff and defendant, respectively, may be allowed, on motion to make a supplemental complaint or answer, alleging facts material to the case occurring after the filing of the original complaint or answer.
Sec 99. Pleadings to be liberally construed.In the construction of a pleading, for the purpose of determining its effects, its allegations shall be liberally construed, with a view to substantial justice between the parties.
Sec 100. Sham or irrelevant pleadings.Sham and irrelevant answers, and irrelevant, redundant, or indecent matter inserted in a pleading, may be stricken out, upon such terms as the court may, in its discretion, impose.
Sec 101. Specifications.The court may, in its discretion, at any time, upon motion, order either party to make his pleading more definite, or to file specifications of his items of account or other claims
code of civil procedure of the canal zone. 25
involved in the pleading, so as to furnish the adverse party with complete information as to the claim which he is required to meet.
Sec. 102. Variance.An immaterial variance between the allegation in a pleading and the proof shall be disregarded and the facts found according to the evidence, and the pleading shall be forthwith amended in accordance with the facts found, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it appears that a variance is material and that a party has been misled, courts shall not dismiss the action by reason of the variance, but shall, upon such terms as may be just, order the pleadings to be forthwith amended in accordance with the facts, and determine the action upon the actual facts as established. The amendments provided in this section may be made
either in the Circuit Court or in the Supreme Court, at any stage of the action.
Sec. 103. Amendments in general.The court shall, in furtherance of justice, and on such terms, if any, as may be proper, allow a party to amend any pleading or proceeding and at any stage of the action, in either Circuit Court or the Supreme Court, by adding or striking out the name of any party, either plaintiff or defendant, or by correcting a mistake in the name of a party, or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. The court may also, upon like terms, allow an answer or other pleading to be made after the time limited by the rules of the court for filing the same. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard.
Sec 104. When name of defendant is unknown.When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, and such defendant may be designated in any complaint or proceeding by any name. When his true name is discovered the pleading or proceedings must be amended accordingly.
Sec. 105. Proceedings in cases of appeal from district courts. When a perfected appeal from a judgment of a district judge has been duly entered in the Circuit Court new pleadings shall be filed in the action in that court, and the pleadings in such action shall be in all respects governed by the same rule as though the action had been originally commenced in the Circuit Court. But the plaintiff may, if he so elects, rely upon his complaint as originally filed before the district judge, instead of filing a new one.
Sec. 106. Relief from effect of judgments and orders.Upon such terms as may be just the court may relieve a party or his legal rep-
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE
resentative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect: Provided, That application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken.
parties to actions.
Sec 107. Parties to actions.Every action must be prosecuted in the name of the real party in interest. But in the case of an assignment of a right of action, an action by the assignee shall be without prejudice to any set-off or other defense existing at the time of or before notice of assignment; but this last provision shall not apply to a negotiable promissory note, or a draft or a bill of exchange, transferred in good faith and upon good consideration before maturity. And an executor or administrator or legal representative of a deceased person, or a trustee of an express trust, or a person expressly authorized by law so to do, or a lawfully appointed guardian of a person of unsound mind, or of a minor, may sue or be sued without joining with him the person for whose benefit the action is prosecuted or defended.
Otherwise than as provided in this section, all persons having an interest in the subject of the action and in obtaining the relief demanded shall be joined as plaintiffs.
Any person should be made a defendant who has or claims an interest in the controversy or the subject-matter thereof adverse to the plaintiff, or who is a necessary party to a complete determination
or settlement of the questions involved therein.
If any person having an interest in the subject of the action, and in obtaining the relief demanded, refuses to join as plaintiff with
those having a like interest, he may be made a defendant, the fact of his interest and refusal to join being stated in the complaint.
Sec 108. Married woman as a party.When a married woman is
a party, her husband must be joined with her, except:
1. When the action concerns her property, in which her husband
can have no interest or right;
2. When the action is between herself and her husband;
3. When for a just cause she is living separate and apart from her husband or by reason of an agreement in writing entered into between them.
In either of which cases she may sue or be sued alone. Sec 109. Infants, spendthrifts, and persons of unsound mind. When an infant or a person of unsound mind or a person judicially
code of civil procedure of the canal zone. 27
decreed to be a spendthrift is a party to an action, he must appear either by his general guardian or by a guardian ad litem appointed by the court in which the action is pending. A guardian ad litem may be appointed in any case when it is deemed by the court in which the action or proceeding is prosecuted expedient to represent the infant, spendthrift, or person of unsound mind in the action or proceeding.
Sec 110. Guardian ad litem.Such guardian ad litem may be appointed by the court of its own motion, and shall be appointed upon the application of a relative or friend of the infant, spendthrift, or person of unsound mind. The court may, in its discretion, allow to a guardian ad litem a reasonable compensation for his services as such guardian, to be paid out of the estate of the ward.
Sec 111. Numerous parties.When the subject-matter of the controversy is one of common or general interest to many persons, and the parties are so numerous that it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. But in such case any party in interest shall have a right to intervene in protection of his individual interest, and the court shall make sure that the parties actually before it are sufficiently numerous and representative so that all interests concerned are fully protected.
Sec 112. Death of party.In case a party to an action dies while the action is pending, the action shall not abate by reason thereof, but the court on motion may allow the action or proceeding to be continued by or against his executor, administrator, heirs, or other legal representative, and the judgment, if it be for the payment of costs and against the executor, administrator, or other legal representative, shall be that he pay in due course of administration: Pro-vided] nevertheless, That if the action is for the recovery of money, debt, or damages against the deceased, it shall be discontinued, and the claim thereafter be prosecuted as herein otherwise provided; and provided further, that should any action survive against the heirs of the deceased, the court mav ascertain who are the heirs of the deceased and proceed as if the suit had been originally brought against them.
Sec 113. Interpleading.Whenever conflicting claims are or may be made upon a person for or relating to personal property, or the performance of an obligation or any portion thereof, so that he may be made subject to several actions by different persons, unless the court intervenes, such person may bring action against the conflicting claimants, disclaiming personal interest in the controversy to compel them to interplead and litigate their several claims among themselves, and the court may order the conflicting claimants to interplead with one another and thereupon proceed to determine the right of the several parties to the interpleading to the personal property or the
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performance of the obligation in controversy, and shall determine the rights of all parties in interest.
Sec 114. Intervention.A person may, at any period of a trial, upon motion, be permitted by the court to intervene in an action or proceeding, if he has legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both. Such intervening party may be permitted to join the plaintiff in claiming what is sought by the claimant, or to unite with the defendant in resisting the claims of the plaintiff, or to demand anything adverse to both the plaintiff and defendant. Such intervention, if permitted by the court, shall be made by complaint in regular form, filed in court, and may be answered or demurred to as if it were an original complaint. Notice of motion for such intervention shall be given to all parties to the action, and notice may be given by publication, in accordance with the provisions of this Code relating to publication, in cases where other notice is impracticable.
Sec 115. Necessary parties.The court may determine any controversy between parties before it if it can be done without prejudice to the rights of others or by preserving their rights for future action; but when a complete determination of the controversy can not be had without the presence of other parties, the court must order them to be brought in, and to that end may order amended or supplemental pleadings, or a cross complaint, to be filed and summons therein to be duly issued and served.
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Sec 116. Interlocutory and incidental orders.No interlocutory or incidental ruling, order, or judgment of the Circuit Court shall stay the progress of an action or proceeding therein pending, but only such ruling, order, or judgment as finally determines the action or proceeding; nor shall any ruling, order, or judgment be the subject of appeal to the Supreme Court until final judgment is rendered for one party or the other: Provided, That whenever an interlocutory order or decree is entered in any suit pending in any court of the Canal Zone, granting an injunction, or overruling a motion to dissolve the same, or enlarging the scope of an injunction order, or appointing a receiver, or giving other or further powers or property to a receiver already appointed, an appeal may be taken from such interlocutory order or decree to the Supreme Court of the Canal Zone: Provided, That such appeal is taken within thirty days from the entry of such interlocutory order or decree and is perfected in said Supreme Court within sixty days from the entry of such
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order or decree. The force and effect of such interlocutory order or decree and the proceedings in the court below shall not be stayed during the pendency of such appeal, and the party taking such appeal shall give bond, to be approved by the clerk of the court below, to secure costs in the Supreme Court. Upon the filing of the record in the Supreme Court, the same shall there be at once docketed, and shall be ready for hearing under the rules of said court, taking precedence of other causes in said court. Upon such appeal the Supreme Court may affirm, modify, or reverse such interlocutory order or decree, and shall direct such proceedings to be had in the court below as the justice of the case may require. If such appeal is dismissed, the Supreme Court may allow to the attorney for appellee a reasonable attorney's fee, not to exceed one hundred dollars, to be taxed as part of the costs of the appeal.
Sec 117. Judgment in case of several plaintiffs or defendants. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and the court may, when the justice of the case requires it, conclusively determine the ultimate rights of the parties on each side, as between themselves, and may require such parties to file adversary pleadings as between themselves.
Sec 118. Several judgments*In an action against several defendants the court may, in its discretion, render judgment against one or more of them, upon default or confession, or otherwise, leaving the action to proceed against the others whenever a several judgment is proper.
The court may, in its discretion, order execution to issue upon such several judgment.
Sec. 119. Kind of relief to be granted.The relief granted to the plaintiff, if there be no answer, can not exceed that which he shall have demanded in his complaint; but, in any other case, the court may grant him any relief consistent with the case made by the complaint and supported by the evidence and embraced within the issues, requiring the necessary amendments.
Sec. 120. Dismissal of actions.An action may be dismissed, with costs to the defendant, in the following cases:
1. By the plaintiff himself, by written request to the clerk filed among the papers in the case, at any time before trial, upon payment of the costs; provided a counterclaim has not been made, or affirmative relief sought by the cross complaint or answer of the defendant, or provided the judge shall not decide that the defendant has made such preparation for trial that it would be unjust to permit a dismissal without a trial on the merits;
2. By the court, when the plaintiff fails to appear at the time of trial, and the defendant appears and asks for the dismissal;
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3. By the court, when the plaintiff fails, for an unreasonable length of time, to prosecute his action;
4. The court may also, in its discretion, allow a plaintiff to dismiss the action on payment of the costs after the trial has begun and at any time before final adjournment, if the interests of justice so require;
5. The dismissal in the above cases shall be entered on the docket of the court and shall be effective, when so entered, to end the action; but shall not be a bar to another action for the same cause.
Sec. 121. Default.In case a defendant fails to appear at the time required in the summons, or to answer at the time provided b}^ the rules of court, the court shall, upon motion of the plaintiff, order judgment for the plaintiff by default which shall be entered u]Son the docket; and the court shall thereupon proceed to hear the plaintiff and his witnesses and assess the damages or determine the other relief to which the plaintiff may be entitled, including the costs of the action, and render final judgment for the plaintiff to recover such sum or to receive such other relief as the pleadings and the facts warrant. If the taking of a long account be involved in determining the amount to which the plaintiff shall be entitled, the court may, in its discretion, order a reference to some suitable person to take the account and report to the court and upon the coming in of such report, such final judgment shall be rendered as the facts require.
Sec. 122. Default on cross complaint.If the plaintiff fails to
answer a cross complaint within the time limited by the rules of court,
judgment by default may be entered against him upon the cross
complaint and the same proceedings shall be had upon such default
as though the cross complaint had been the original complaint.
Sec. 123. Postponement.-The court may, in its discretion, for
cause, and with or without terms, postpone a trial from day to day, or to a stated time during the term of the court, or to the next succeeding term.
Sec. 124. Adjournment.Court may adjourn from day to day, and to any stated time, as the expeditious and convenient transaction of business may require.
Sec. 125. Order of trial.The trial must proceed in the following order, unless the judge, for special reasons, otherwise directs:
1. The plaintiff, after stating the issue and his case, must produce the evidence on his part; but he may read the complaint as his statement of the case, if the judge so directs;
2. The defendant shall then state his defense and offer his evidence in support thereof; but he may read his answer as his statement of defense, if the judge so directs;
3. The parties may then respectively offer rebutting evidence only, unless the court, for good reason, in the furtherance of justice, permits them to offer evidence upon their original case;
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4. When the evidence is concluded, unless the parties on either side or both sides agree to submit it without argument, the plaintiff or his counsel may make the opening argument, the defendant or his counsel may follow, and the plaintiff or his counsel may conclude the argument. Two counsel may, if desired, be heard upon each side, but in the order herein prescribed; and the court may in its discretion limit the time for oral argument;
5. If several defendants, having separate defenses, appear by different counsel, the court must determine their relative order in the evidence and argument, but in any event the plaintiff is entitled to the opening and closing argument.
Sec. 126. Findings of facts.Upon the trial of a question of fact, the decision of the court must be entered on the record by the clerk.
Sec. 127. Agreed statement of facts.The parties may, in any action or special proceeding, agree, in writing, upon the facts involved in the litigation, and require the judgment of the court upon the questions of law arising from such agreed statement of facts, without the introduction of testimony. The ruling and judgment of the court upon "such agreed statement of facts shall be subject to exception, like all other rulings of the court. When an agreed statement of facts is entered into by the parties, no other finding of facts need be made by the court.
Sec. 128. Reference.By written consent of both parties, filed with the clerk, the court may order an action to be referred to one or more referees, to be agreed upon by the parties or to be appointed by the court.
Sec. 129. Commission to referees.In such case, the clerk shall issue, under the seal ,of the court, a commission to the referee or referees named, directing them to proceed with the trial of the action
and to report the findings of law and fact to the court at or before a time named in the commission.
Sec. 130. Oath of referees.Referees, before commencing the performance of their duty, shall be sworn to a faithful and honest performance thereof, and the fact that they have taken such oath shall be certified to on the commission by the authority administering the oath. The oath may be administered by the judge or clerk of the court, or by any district judge or notary public in the administrative district. ^
Sec. 131. Trial before referee.Trial may occur at any convenient place within the circuit, and the time and place for trial shall be fixed by the referee and reasonable notice thereof shall be given by him to the parties. The referee is hereby authorized to administer oaths to witnesses, and the trial before him shall proceed in all respects as though the same had been had before the court.
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Sec. 132. Report of referee.Upon the completion of the trial, the referee shall report, in writing, to the court the facts found by him and such of his rulings as the parties shall request him to report.
Sec 133. Hearing upon report.Upon the filing of the report or as soon as conveniently may be thereafter, the court shall render judgment in accordance with the report, as though the facts had been found by the judge himself, unless the court shall, for cause shown, set aside the report, or modify and change the same in whole or in part and then enter judgment thereon, or order it to be recommitted to the referee for further findings.
Sec 134. Exceptions.An exception is an objection upon a matter of law to a decision made by a court, tribunal, judge, or other judicial officer in an action or proceeding. Rulings of the court upon minor matters, such as adjournments, postponements of trials, the extension of time for filing pleadings or motions, and other matters addressed to the discretion of the court in the performance of its duty, shall not be subject to exception. But exception may be taken to any other ruling, order, or judgment of the court made during the pendency of the action in the Circuit Court.
Sec 135. Manner of taking exceptions.The party excepting to the ruling, order, or judgment, shall forthwith inform the court that he excepts to the ruling, order, or judgment, and the judge shall thereupon minute the fact that the party has so excepted; but the trial shall not be delayed thereby. The exception shall also be recorded by the stenographer, if one is officially connected with the court.
Sec 136. Perfecting bill of exceptions.Upon the rendition of final judgment disposing of an action, either party shall have the right
party has duly excepted at the time of making such ruling, order, or judgment. The party desiring to prosecute the bill of exceptions
judge shall enter a memorandum to that effect upon his minutes and
mdum to be made by the clerk upon the docket
of the court among the other entries relating to the action. Within ten days after the entry of the memorandum aforesaid, the excepting party shall cause to be presented to the judge a brief statement of the facts of the case sufficient to show the bearing of the rulings, orders, or judgments excepted to, and a specific statement of each ruling, order, or judgment that has been excepted to, for allowance by the judge. The judge shall thereupon, after reasonable notice
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to both parties and within five days from the presentation of the bill of exceptions to him, restate the facts if need be, and the exceptions, so that the exceptions of law therein involved, and their relevancy shall all be made clear, and when the bill of exceptions has been perfected and allowed by the judge, he shall certify that it has been so allowed and the bill of exceptions shall be filed with the other papers in the action, and the same shall thereupon be transferred to the Supreme Court for determination of the questions of law involved. A bill of exceptions may likewise be made to consist of the judge's findings of fact in his final judgment and a statement of all the exceptions reserved by the party desiring to prosecute the bill of exceptions, which shall be allowed and filed by the judge as above in this section provided.
Immediately upon the allowance of a bill of exceptions by the judge, it shall be the duty of the clerk to transmit to the clerk of the Supreme Court, a complete transcript of the record, including therein the bill of exceptions, and of all documents which by the bill of exceptions are made a part of it, but the substance of documents may be shown, except when in the opinion of the judge an exhibition of the entire document or specified parts thereof is necessary to full understanding of the case. The cause shall be heard in the Supreme Court upon the record so transmitted.
Sec. 137. Stay of execution.Except by special order of the court, no execution shall issue upon a final judgment rendered in a Circuit Court until after the period for perfecting a bill of exceptions has expired. But the filing of a bill of exceptions together with a bond to be fixed by the court and by it approved, shall stay execution until the final determination of the action, unless for special reasons stated in the bill of exceptions the court shall order that execution be not stayed, in which event execution may issue at once. The court shall require as a condition of a stay of execution that a bond shall be given, reasonably sufficient to secure the performance of the judgment appealed from in case it be affirmed in part or wholly and the
payment of costs.
Sec. 138. New trial.At any time during the term at which an action has been tried in a Circuit Court, the judge thereof may set aside the judgment and grant a new trial, upon such terms as may be just, on the application of the party aggrieved, and after due notice to the adverse party in the following cases:
1. Accident or surprise which ordinary prudence could not have guarded against, and by reason of which the party applying has
probably been impaired in his rights;
2. Newly discovered evidence, material to the party making the
application, which he could not, with reasonable diligence, have discovered and produced at the trial;
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3. Because the judge has become satisfied that excessive damages have been awarded, or that the evidence was insufficient to justify the judgment, or that it is against the law.
Sec. 139. Method of procedure in applications for new trial.The application shall be made by motion in writing, stating the ground therefor, of which the adverse party shall have such reasonable notice as the judge may direct. When the application is made for a cause mentioned in the first or second subdivisions of the last section, it must be made upon affidavits, and counter affidavits from the adverse party may likewise be received; the overruling or granting of a motion for a new trial shall be a ground of exception, but no appeal or bill of exceptions to the Supreme Court shall be allowed or necessary before final judgment is entered.
Sec. 140. Effect of granting a motion for a new trial.If a new trial shall be granted the original judgment shall be vacated, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial, so far as the same is admissible and competent to establish the issues, shall be used upon the new trial without retaking the same.
Sec. 141. Relief from judgments of subordinate tribunals, obtained by fraud, accident, or mistake.When a judgment has been rendered by a district judge, or any other subordinate tribunal, and any party to the action has been unjustly deprived of his day in court and an opportunity to be heard thereon, by fraud, accident, mistake, or excusable negligence, or has been prevented from entering an appeal from such judgment by fraud, accident, mistake, or excusable negligence, the Circuit Court may, in its discretion, and on reasonable terms, reverse and set aside the judgment so rendered, and hear and determine the action and make the necessary orders therein, as if the same had been brought to the Circuit Court by appeal, provided the party so aggrieved shall make application, as hereinafter provided, to the Circuit Court and within sixty days after he first knows that such judgment has been rendered against him. This section shall be liberally construed so as to prevent injustice.
Sec. 142. Procedure to vacate such judgment.The person aggrieved by a judgment obtained in the manner stated in the preceding section may, within the time limited, file his complaint in the Circuit Court of the district in which the original judgment was rendered, stating the fact of the rendition of such judgment and the circumstances constituting the fraud, accident, mistake, or excusable negligence relied upon as ground for relief, and praying that such judgment may be reversed and set aside and the cause be determined upon its merits. The party against whom the complaint is made shall be served with notice as in other actions pending in the Circuit Court, and the trial shall proceed as in other actions in that court.
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If the court shall find that the facts set forth in the complaint are true and that the complainant is entitled to relief, the judgment complained of shall be reversed and set aside, and shall thereafter be of no validity, and the court shall proceed to hear and determine the action upon its merits, and make the necessary orders therein, as if the same had been regularly brought to said court by appeal.
Sec 143, Temporary injunction in such cases.At the time of filing such complaint, or at any time thereafter before final hearing, the judge of the Circuit Court in which the action is pending, may grant an injunction restraining the party in whose favor such judgment has been rendered, his agents and attorneys and the district judge or other inferior tribunal rendering the judgment, from any further proceedings to enforce the same until the further order of the court in the premises, which injunction shall be served in the manner provided by law for serving process; but the judge issuing such injunction shall, before issuing it, take from the party upon whose application the same is granted, an obligation to the other party, with sufficient sureties, to be approved by the judge, conditioned that if the complainant fails to prosecute his complaint with effect, or finally to recover in such action, he will pay the adverse party the intervening damages and cost accruing to him by reason of the issuing of such injunction, together with the amount of the original judgment, but such injunction shall not operate to discharge or release bail or extinguish any lien which the party enjoined has acquired upon the property of the plaintiff by attachment or levy of execution. The damages, if any, accruing under this section shall be assessed by the judge and included in his final judgment in the action.
Sec 144. Final judgment in such proceedings.If the plaintiff shall prevail in such action, the original judgment shall be reversed and vacated, and the defendant therein and the municipal judge or other inferior tribunal that rendered the judgment shall be perpetually enjoined from any further steps to enforce the same. The costs of such proceedings shall be awarded in the discretion of the court, in such manner as justice requires.
Sec 145. Attendance of the district judge.Upon the trial of an action instituted in pursuance of the preceding sections, the district judge or other subordinate magistrate or official who rendered the judgment complained of, shall attend and produce before the court all the papers in the original action, if required to do so by the judge.
Sec 146. New action within one year from death of party.If a person entitled to bring an action, die before the expiration of the
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term limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representatives, after the expiration of that time, and within one year from his death. If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, an action may be commenced against his representatives after the expiration of that time, and within one year after the issuing of letters testamentary or of administration.
Sec. 147. Extension of time to aliens, etc.When a person is an alien subject, or a citizen of a country at war with the United States, the time of the continuance of the war is not a part of the period limited for the commencement of the action.
Sec. 148. Where judgment reversed.If an action is commenced within the time prescribed therefor, and a judgment therein for the plaintiff be reversed on appeal, the plaintiff, or, if he die and the cause of action survive, his representatives may commence a new action within one vear after the reversal.
Sec. 149. Where action stayed.When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action.
Sec. 150. Marriage, female party.No action, proceeding or complaint, commenced by or against a feme sole, either alone or with others, shall abate on account of her intermarriage before final judgment, but she may continue to prosecute or defend the same in like manner as if she were sole.
Sec. 151. Death of coplaintiff.When there is but one plaintiff, petitioner or complainant in an action, proceeding or complaint, and he shall die before final judgment or decree, such action, proceeding or complaint shall not on that account abate, if the cause of action survive to the heir, devisee, executor or administrator of such decedent, but any of such to whom the cause of action shall survive.
may, by suggesting such death upon the record, be substituted as plaintiff, petitioner or complainant, and prosecute the same as in
Sec. 152. Death of codefendant.When there is but one defendant in an action, proceeding or complaint, and he dies before final judgment or decree, such action, proceeding or complaint shall not on that account abate, if it might be originally prosecuted against the heir, devisee, executor or administrator of such defendant, but the plaintiff, petitioner or complainant may suggest such death on the record, and shall, by order of the court, have summons against such person or legal representative, requiring him to appear and defend the action, proceeding or complaint, after which it may proceed as if it had been originally commenced against him.
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Sec. 153. Surviving parties.When there are several plaintiffs, pe-titioners or complainants, or defendants in an action, proceeding or complaint, the cause of which survives, and any of them die before final judgment or decree, the action, proceeding or complaint shall not on that account abate, but such death may be suggested on the record, and the cause proceed at the suit of the surviving plaintiff, petitioner or complainant, or against the surviving defendant, as the case may be, in all cases as if such persons had been originally sole parties to the suit.
Sec. 154. Sam.e.If, in the case mentioned in the preceding section all the plaintiffs, petitioners or complainants, or all the defendants die, the cause may be prosecuted or defended by or against the heir, devisee, executor or administrator of the last surviving plaintiff, petitioner, complainant or defendant respectively, to or against whom the cause survives, in like manner as if the survivor had been originally the only plaintiff, petitioner, complainant or defendant.
Sec. 155. Ejectment, death of plaintiff.If there are several plaintiffs in an action of ejectment, or an ordinary action for the recovery
of real property or any interest therein, and any of them dies before final judgment, the death of such party may be suggested on the record, and the heir or devisee of the deceased party shall be admitted to prosecute the suit jointly with the survivor, in the same manner as if he had originally joined with him in commencing the action.
Sec. 156. Rights of surviving plaintiff.If the interest of the deceased party passes to the surviving plaintiff, or if the heir or devisee of the deceased party does not, within a reasonable time, to be fixed by the court, join in the prosecution of the suit, the surviving plaintiff may prosecute the suit for so much of the premises in question as
may then be claimed by him.
Sec. 157. Ejectment, death of codefendant.In case of the death of any several defendants in an action of ejectment, or an ordinarv action for the recovery of real property or any interest therein, the
Action may be prosecuted against the other defendants for so much of the premises as they hold or claim; or, the death being suggested, the heir, or devisee of the deceased party may be made co-defendant with the others, and the suit proceed the same as if such heir or devisee had originally been made co-defendant.
Sec. 158. Where cause of action does not survive to co-party. When there are several complainants or defendants in a suit or proceeding, and any of them may die, and the cause of action does not survive to the surviving complainant or against the surviving defendant, and any other persons become interested therein in consequence of such decease, such suit or proceeding shall, by reason of such death, be abated only with respect to such deceased party; and the person or legal representative so becoming interested may be made a party to such suit or proceeding in the same manner as
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in the case of the death of a sole complainant or defendant; or the suit or proceeding may be prosecuted by the surviving complainant against the surviving defendant without reviving the same in favor of or against the person or legal representative so becoming interested therein; but in the latter case such interested person or
legal representative, not made a party, shall not be bound by any order or decree made in the cause.
Sec. 159. Death of personal representative.When an executor, administrator, guardian or conservator is plaintiff, petitioner or complainant, or defendant in a suit or proceeding, and dies, resigns, or is removed from office before final judgment or decree, the suit or proceeding shall not on that account abate, but the same may be continued by or against his successor, in like manner as in case of the death of other parties.
Sec. 160. Death of public officer or trustee.When an action, proceeding or complaint, in law or equity, is authorized or directed by law to be brought by or in the name of any public officer, or by any trustee appointed by virtue of any statute, and such officer or trustee dies or ceases to be such officer or trustee before final judgment or decree, the suit shall not on that account abate, but the same may be continued by his successor, in like manner as in case of the death of other parties.
Sec. 161. Party becoming insane.If, during the pendency of an action, proceeding or complaint, either party becomes insane, the cause may be prosecuted or defended by his conservator in like manner as by an executor or administrator in case of the death of a party, or the court may appoint a guardian ad litem, as the case may require.
Sec. 162. No abatement in partition suits.No plea in abatement shall be received in any suit for partition, nor shall such suit abate by the death of any tenant.
Sec. 163. Same.No suit for the partition of land shall abate on account of the death of any party thereto, but it may be continued in the names of the survivors, if the interest of such deceased person survives to them; and if such interest passes to other persons they may be made parties in like manner as in the case of the death of other parties, and the same proceedings may be had as if they had been made parties originally.
Sec. 164. Where action brought for another.No suit, instituted in the name of one for the use of another, shall abate by reason of the death of the person whose name is used; but it may be continued by the real plaintiff in interest, in his own name, on his suggesting such death on the record, and an order of the court being made, substituting his name for that of the deceased plaintiff.
Sec. 165. Writs of error, etc.These provisions shall apply to all
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appeals, writs of error and of certiorari, so far as the same may be made applicable.
Sec. 166. Process to any circuit.Process may be sued out, and may be directed to any circuit, and shall correspond, as nearly as may be, to the original writ, and may be executed and returned in the same manner.
Sec. 167. Disability, when available.No person can avail himself of a disability, unless it existed when his right of action accrued.
Sec. 168. Two or more disabilities.When two or more disabilities co-exist at the time the right of action accrues, the limitation does not attach until they are removed.
Sec. 169. Directors and stockholders of corporations.This chapter does not affect actions against directors or stockholders of a corporation, to recover a penalty or forfeiture imposed, or to enforce a liability created by law; but such actions must be brought within three years after the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached or the liability was created.
Sec. 170. Acknowledgment or new promise must be in writing. No acknowledgment or promise is sufficient evidence of a new or continuing contract, unless the same is contained in some writing signed by the party to be charged thereby, or his agent duly authorized in writing, or his attorney in fact.
Sec. 171. Where cause of action arises in foreign country.When a cause of action has arisen in a State or Territory of the United States, or in a foreign country, and by the laws thereof an action thereon can not be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in the Canal Zone, except in favor of one who has been a resident of said Canal Zone, and who has held the cause of action from the time it accrued. '
Sec. 172. Definition.The word action as used in this chapter, is to be construed, whenever it is necessary to do so, as including a special proceeding of a civil nature.
InjunctionsReceiversPartition of real estateUsurpation of office or franchisecertiorari proceedings-mandate-
Prohibition Contempt Eminent domain Foreclosure Manual delivery of personal property.
Sec 173. Injunction defined.An injunction is a writ or order requiring a person to refrain from a particular act, or, if mandatory,
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commanding the defendant to do a particular thing. It may be of two kinds:
1. A preliminary injunction is one granted at any stage of an action prior to final judgment;
2. A final injunction is one granted in the final judgment as the relief, or a part of the relief, granted as a result of the action.
Sec. 174. Who may grant an injunction.A preliminary injunction may be granted by any judge of the Circuit Court in any action pending in the Circuit Court in any circuit of the Canal Zone in which he has original jurisdiction; in case of his absence, by any Circuit Judge of the Canal Zone present on the Zone and not disqualified.
Sec. 175. Circumstances under which a preliminary injunction may be granted.A preliminary injunction may be granted when it is established, in the manner hereinafter provided, to the satisfaction of the judge granting it:
1. That the plaintiff is entitled to the relief demanded and such relief, or any part thereof, consists in restraining the commission or continuance of the acts complained of either for a limited period or perpetually;
2. That the commission or continuance of some act complained of during the litigation would probably work injustice to the plaintiff;
3. That the defendant is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act probably in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual.
4. No mandatory injunction, or injunctions requiring the performance of some affirmative act, will be granted before final hearing, and will be ordered to issue only by final decree.
Sec. 176. Time of granting preliminary injunction.A preliminary injunction may be granted at any time after the commencement of the action and before final judgment.
Sec. 177. Method of obtaining preliminary injunction.A preliminary injunction may be granted only when the following conditions are complied with:
1. The complaint must show facts entitling the plaintiff to the relief demanded;
2. The complaint must be verified by the oath of the plaintiff or by that of some other person by him duly authorized and who can testify to the truth of the facts set forth in the complaint;
3. The plaintiff must file with the clerk of the court in which the action is pending a written obligation on the part of the plaintiff with sufficient sureties, to the effect that the plaintiff will pay, to the party enjoined all such damages as such party may sustain by reason of the injunction, if the court should finally decide that the plaintiff
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was not entitled thereto. The sufficiency of the obligation must be approved in writing by the judge granting the injunction, and before approval he shall require such proof as is necessary in regard to the sufficiency of the sureties. The sureties, by executing the obligation, become quasi parties to the proceeding, so that a judgment may be rendered against them without further notice.
Sec 178. Proceeding in case of insufficient sureties.If it shall be made to appear at any time during the progress of the action that the sureties on the obligation provided in the last section are insufficient, the judge of the court in which the action is pending may, upon motion, order new sureties to be provided; and, if no sureties are provided within a time fixed by the order of the court for that purpose, the injunction shall be dissolved.
Sec. 179. Notice to defendant of preliminary injunction.The injunction hereinbefore provided may be granted ex parte on the application of the plaintiff, on the conditions before stated, but if the judge to whom application is made for the granting of the injunction deems it just that the defendant should be heard before granting the injunction, an order may be made requiring cause to be shown, at a specified time and place, why the injunction should not be granted, and the defendant may then and there be heard and the injunction may be granted or refused as justice shall require. If upon such hearing it should be made to appear to the satisfaction of the court that the plaintiff is entitled to the injunction, but that the issuance thereof pending the litigation would entail great damage upon the defendant, and that the plaintiff could be fully compensated for such damages as he might suffer, the judge may refuse the injunction, upon the defendant giving an obligation with sureties to be approved by the judge in such amount as may be fixed by the judge, conditioned that the defendant will pay all damages which the plaintiff may suffer by reason of the continuance during the litigation of the acts complained of.
Sec 180. Dissolution of temporary injunctions.If a temporary injunction be granted without notice, the defendant, at any time before the trial, may apply, upon reasonable notice to the adverse party, to the judge who granted the injunction, or to the judge of the court in which the action was brought, to dissolve or modify the same. The application may be based upon the insufficiency of the complaint on which the injunction was granted or upon affidavit on the part of the defendant, with or without an answer. If the application be made upon affidavits upon the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence to substantiate the facts set forth in the complaint, and the judge shall, after hearing, dissolve or modify or continue the injunction as justice may require. If it be made to appear to the
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judge that great damage will be suffered by the defendant in case
the injunction is continued and that the plaintiff can be fully compensated for any damages he may suffer by reason of the continuance of the acts of the defendant during the pendency of the litigation, the judge in his discretion may dissolve or modify the injunction, upon the defendant giving an obligation, with sureties to be approved by the judge, that the defendant will pay all damages which the plaintiff may suffer by reason of the continuance during the litigation of the acts complained of.
Sec. 1S1. Damages pending a preliminary injunction.Upon final trial the amount of damages to be awarded to the plaintiff or to the defendant upon the obligation hereinbefore required, shall be ascertained by the court trying the action, and judgment for the same shall be included in the final judgment and the judgment shall be both against the plaintiff and against the sureties upon any obligation given.
Sec. 182. Final injunctions.If upon the final trial of the action it shall appear that the plaintiff is entitled to an injunction perpetually restraining the commission or continuance of the act complained of, the court shall grant a final injunction perpetually restraining the defendant from continuing the act.
Sec. 183. Method of enforcing injunctions.A person violating an injunction shall be treated as in contempt of court and dealt with as hereinafter provided under the head of Contempt."
Sec. 184. Receivers, who may appoint.A judge of the Circuit Court in which the action is pending, may appoint one or more receivers of the property, real, personal, or mixed, which is the subject of the action, in the manner and under the conditions hereinafter provided.
Sec. 185. When a receiver may be appointed.A receiver may be appointed in the following cases:
1. When a corporation has been dissolved, or is insolvent, or is in imminent danger of insolvency, or has forfeited its corporate rights;
2. When it is made to appear by the complaint or answer, and by such other proof as the judge may require, that the party making the application for the appointment of receiver has an interest in the property or fund which is the subject of the action and it is shown that the property or fund is in danger of being lost, removed, or materially injured unless a receiver shall be appointed to guard and preserve it;
3. In an action by the mortgagee for the foreclosure of a mortgage, where it appears that the property is in danger of being wasted or materially injured, and that its value is probably insufficient to discharge the mortgage debt;
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4. Whenever in other cases it shall be made to appear to the court that the appointment of a receiver is the most convenient and feasible means of preserving and administering the property which is the subject of litigation during the pendency of the action.
Sec 186. General powers of a receiver.The receiver shall have, under the control of the court in which the action is pending, power to bring and defend actions in his own name, as receiver; to take and keep possession of the property in controversy; to receive rent, to collect the same due to himself as receiver, or to the fund, property, estate, person, or corporation of which he is receiver; to compound for and compromise the same; to make transfers; and generally to do such acts respecting the property as the court may authorize.
Sec 187. Receivers of a corporation.When a corporation has been dissolved, or is insolvent, or is in imminent danger of insolvency, or has forfeited its corporate rights, the Circuit Court where the corporation has its principal place of business may, on complaint of a creditor of the corporation, or a stockholder or member thereof, appoint a receiver to take charge of its estate and effects, and to collect the debts and property due and belonging to the corporation, and to pay the outstanding debts thereof, and to divide the money and other properties that shall remain over among the stockholders or members.
Sec 188. Obligations for damages on appointment of receiver. If a receiver be appointed upon an ex parte application, the court, before making the order, may require from the plaintiff or person filing the application for such appointment, an obligation with sufficient sureties, to be approved by the court, in an amount to be fixed by the court, to the effect that the applicant will pay to the defendant in the application all damages he may sustain by reason of the appointment of such receiver and the entry by him upon his duties, in case the applicant shall have procured such appointment without sufficient cause; and the court may, in its discretion, at any time after the appointment, require an additional obligation as further security for such damages. The damages, if any, shall be ascertained by the court and, in its final judgment in the action, shall be decreed against the plaintiff and the sureties on the obligation.
Sec 189. Oath and obligation of receivers.Before entering upon his duties, the receiver must be sworn to perform them faithfully, and with one or more sureties approved by the court or judge, execute an obligation to such person and in such sum as the court or judge may direct, to the effect that he will faithfully discharge the
duties of receiver in the action and obey the orders of the court therein. Sec 190. Funds in the hands of receiver.Funds in the hands of a
receiver may be invested upon interest by order of the court; but
no such order shall be made except upon the written consent of all
the parties to the action.
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Sec. 191. Termination of receivership.Whenever the court of its own motion, or on that of either party, shall determine, after due notice and hearing, that the necessity for a receiver no longer exists, it shall, on notice and hearing, settle the accounts of the receiver, direct the payment of the funds in his hands, and the delivery of the property by him held, to such persons as shall be adjudged entitled to receive them, and order his discharge from further duties as receiver.
Partition of real estate.
Sec. 192. Partition of real estate.A person having or holding real estate with others, in any form of joint tenancy, or tenancy in common, may compel partition thereof in the manner hereinafter prescribed.
Sec. 193. Where action for partition must be brought.An action to enforce partition shall be brought in the circuit wherein the estate sought to be divided is situated. If the estate is situated in two or more circuits, the action for partition of the whole may be instituted and maintained in any circuit wherein a part of such estate is situated.
Sec. 194. The complaint.The complaint in an action for partition shall set forth the nature and extent of the plaintiff's title and contain an adequate discription of the real estate of which partition is demanded, and name each tenant in common, coparcener, or other
person interested therein as defendants.
Sec. 195. The order of partition.If, upon trial, the court finds
that the plaintiff has a legal right to any part of such estate, it shall order partition thereof in favor of the plaintiff, among all parties in
Thereupon the parties may, if they are able to agree, make partition among themselves, by proper instruments of conveyance and the court shall confirm the partition so agreed upon by all the parties
and enter the same of record, and the amicable partition so made shall be valid and binding between the parties thereto. But if the parties are unable to agree upon a partition, the court shall appoint three judicious and disinterested land owners of the circuit in which the land to be divided, or some portion of the same, is situated, to be commissioners to make the partition, and shall order a writ of partition to issue to the commissioners commanding them to make partition of the estate and to set off to the plaintiff and to each party in interest such part and proportion of the estate as the court shall order.
Sec. 19G. Duty of commissioners in making partition.Before making such partition, the commissioners shall take and subscribe an oath before the judge or clerk, or any district judge, that they will faithfully perform their duties as commissioners, which oaths
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shall be filed in court with the other proceedings in the case. In making such partition, the commissioners shall view and examine the estate, after due notice to the parties to attend at such view and examination, and shall hear the parties as to their preference in the portion of the estate to be set apart to them and the comparative value thereof, and shall set apart the estate to the several piarties in such lots or parcels as will be most advantageous and equitable, having due regard to the improvement, situation, and quality of the different parts thereof.
Sec. 197. When partition of more than one tract is demanded. When partition of more than one tract is demanded the commissioners shall set off to each plaintiff or party in interest, his proper
proportion in each of the several tracts, unless the several tracts are owned by the same proprietors and in the same proportion in each
tract, in which case the whole share of any proprietor, in all the several tracts, may be set off to such proprietor according to the best discretion of the commissioners.
Sec. 198. Assignment or sale of the estate.When it is made to appear to the commissioners that the estate, or a portion thereof, cannot be divided without great inconvenience to the parties interested, the court may order it assigned to one of the parties, provided he pays to the other party such sum of money as the commissioners judge equitable. But if no one of the parties interested will take such assignment and pay such sum, the court shall order the commissioners to sell such estate at public or private sale. In that case the commissioners shall sell the estate agreeably to such order; but the sale shall not be valid to pass the title to the property until confirmed by the court, unless the order of sale itself shall otherwise provide.
Sec. 199. Report of commissioners.The commissioners shall make full and accurate report to the court of all their proceedings as to partition, or assignment of the estate to one of the parties, or sale of the same. But none of their proceedings shall be effectual to bind the property or the parties until the court shall have accepted their report and rendered judgment therein.
Sec. 200. Action of the court upon commissioners'* report.Upon the filing of such report in court, the court shall, upon hearing, accept the same and render judgment in accordance therewith; or for cause shown it may recommit the report to the commissioners for further report of facts; or it may set aside the report and appoint new commissioners; or it may accept the report in part and reject it in part, and make such final order and judgment as shall effectuate a fair and just partition of the estate or of its value, if sold or assigned as above provided between the several owners thereof.
Sec. 201. Distribution of proceeds of sale.The money or securities arising from a sale, or an election to take the estate in accordance with the foregoing provision shall be distributed and paid, by order
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of the court, to the parties entitled thereto, in lieu of their respective parts and proportions of the estate, according to their just rights therein.
Sec 203. Costs and expenses to be equitably taxed.The court shall tax and apportion between the parties the costs and expenses which accrue in the action, having regard to the interests of the parties, and the benefit that each party may derive from a partition and according to equity. An execution may issue therefor as in other cases.
Sec 204. Fees of commissioners.The commissioners appointed to make partition of real estate shall receive such compensation for the time actually and necessarily employed in the performance of their duties and in making their report to the court, as the parties may agree to or the court fix, which fee shall be taxed as a part of the costs of the proceeding and apportioned as provided in the last preceding section.
Sec 205. Final judgment, its record and effect.The record of the final judgment in such action shall state definitely by metes and bounds an adequate description, the particular portion of the estate that is assigned to each party to the action if partition is made; if the whole estate is assigned to one of the parties upon his paying to the other party the sum ordered by the court, the record shall state the fact of such payment and of the assignment of the estate to such party making such payment.
If the estate is sold and the sale is confirmed by the court, the record shall state the name of the purchaser or purchasers and a definite description of the parcels of the estate sold to each purchaser. The expense of such record shall be taxed as a part of the costs of the action.
If actual partition of the land is made, the effect of the judgment shall be to vest in each party to the action in severalty the portion of the estate assigned to him. If the whole estate is assigned to one of the parties upon his payment to the other party or parties of the sum ordered by the court, the effect of the judgment, upon such payment being made, shall be to vest in the party making the payment, in accordance with the order of the court, the fee of the whole estate free of any interest on the part of the other joint tenants, tenants in common, or coparceners. If the estate is sold, and the sale confirmed by
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the court, the effect of the record shall be, upon payment for the same being made, to vest in the purchaser or purchasers the fee of the estate free from claims of any of the parties to the action. The record of the judgment shall constitute an instrument of evidence in all questions as to the title to the lands or the estate which may be the subject of the judgment in all courts, and shall be conclusive as to the rights of all parties to the suit. But the right of appeal to the Supreme Court shall appertain to actions for partition in the same manner and to the same extent as to other actions.
Sec. 206. Power of guardian in partition proceedings.The guardian, or guardian ad litem, of a minor, or person of unsound mind, may, on behalf of his ward, and with the approval of the court, do and perform any act, matter, or things respecting the partition of an estate which such minor or person of unsound mind could do in partition proceedings if he were of age or of sound mind.
Sec 207. Paramount rights and amicable partition not affected. Nothing herein contained shall be construed so as to injure, prejudice, defeat, or destroy the estate right, or title of any person claiming a tract of land, or any part thereof, by title under any other person or by title paramount to the title of the joint tenants, tenants in common, or coparceners by whom partition may have been made. Nothing herein contained shall be construed as restricting or preventing joint tenants, tenants in common, or coparceners from making an amicable partition of their common estate by agreement and suitable instrument of conveyance without recourse to an action for that purpose.
Usurpation of office or franchise.
Sec 208. Usurpation of an office or franchise.A civil action may be brought in the name of the Government of the Canal Zone:
1. Against a person who usurps, intrudes into, or unlawfully holds or exercises a public civil office or a franchise with the Canal Zone, or an office in a corporation created by the authority of the Government of the Canal Zone;
2. Against a public civil officer who does or suffers an act which, by the provisions of law, works a forfeiture of his office;
3. Against an association of persons who act as a corporation within the Canal Zone, without being legally incorporated or without lawful authority so to act.
Sec. 209. Like actions against a corporation.A like action may be brought against a corporation:
1. When it has offended against a provision of an act for its creation or renewal, or any act altering or amending such act;
2. When it has forfeited its privileges and franchises by non-user;
3. When it has committed or omitted an act which amounts to a surrender of its corporate rights, privileges and franchises;
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4. When is has misused a franchise, privilege, or right conferred upon it by law or when it has exercised a franchise, privilege, or right in contravention of law.
Sec. 210. Action to be prosecuted by public officers.The General Counsel of the Isthmian Canal Commission or the Prosecuting Attorney of the Canal Zone may commence any such action: and when, upon complaint or otherwise, he has good reason to believe that any case specified in the two preceding sections can be established by proof he must commence such action.
Sec. 211. Same.The General Counsel of the Isthmian Canal Commission or the Prosecuting Attorne^y of the Canal Zone may, at his own instance, bring such an action, or he may, on leave of the court in which the action is to be commenced, or a judge thereof in vacation, bring the action upon the relation of and at the request of another person; but, if the action is brought at the request of and upon the relation of another person, the officer bringing it may require an indemnity for expenses and costs of the action to be given to him by the party at whose request and upon whose relation the same is brought before commencing it.
Sec. 212. An individual may commence such action.A person claiming to be entitled to a public office, unlawfully held and exercised by another, may bring an action therefor.
Sec. 213. What the complaint must set forth in such action; judgment therein.When the action is against a person for usurping an office, the complaint shall set forth the name of the person who claims to be entitled thereto, with an averment of his right to the same; and that the defendant is unlawfully in possession of the same; and judgment may be rendered upon the right of the defendant, and also upon the right of the person so averred to be entitled, or only upon the right of the defendant, as justice requires.
Sec. 214. Who may be made defendants.All persons who claim to be entitled to the same office or franchise may be made defendants in the same action, to try their respective rights to such office or franchise.
Sec. 215. Where such actions may be brought.An action under the last preceding seven sections can be brought only in the Supreme Court or in the Circuit Court in which the defendant, or one of the defendants, resides, or, when the defendant is a corporation, in the circuit in which it is situated or has a place of business; but when the General Counsel commences the action, it may be brought in a Circuit Court or in the Supreme Court.
Sec. 216. Application for leave to commence action and notice to defendant.Upon application for leave to commence such action, in accordance with section two hundred eleven, the court or judge may, in its or his discretion, direct notice thereof to be given to the defendant Drevious to granting such leave, and may hear the defend-
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ant in opposition thereto; and if leave be granted, entry thereof shall be made on the docket or the fact shall be indorsed by the judge on the complaint, which shall then be filed.
Sec. 217. Expediting proceedings.An order may be made by the court, or by the judge, shortening the time for filing pleadings and for all other proceedings, in such cases as fixed by general rules, so as to secure the most expeditious determination of the matters involved in the litigation consistent with the rights of the parties. Such action shall have precedence of any civil business pending in the court.
Sec. 218. Judgment where office, franchise, etc., found to have been usurped.When the defendant is found guilty of usurping, intruding into, or unlawfully holding or exercising an office, franchise, or privilege, judgment shall be rendered that such defendant be ousted and altogether excluded therefrom, and that the relator or plaintiff, as the case may be, recover his costs. Such further judgment may be rendered as is provided in section two hundred thirteen.
Sec. 211). Judgment where director of a corporation found to have been illegally elected.When the action is brought against a director of a corporation and the court finds that at his election either illegal votes were received or legal votes rejected, or both, sufficient to change the result, judgment may be rendered that the defendant be ousted, and of induction in favor of the person who was entitled to have been declared elected at such election. Or, in such case, the court may, in its discretion order a new election to be held at a time and place and by judges of election appointed by the court; notice of such election and nomination of the judges shall be given for the time and in the manner provided by law for notice of elections of directors of such corporations; the order of the court shall become obligatory upon the corporation and its officers when a duly certified copy thereof is served upon its secretary personally or left at its principal office; and the court may enforce its order by attachment or in any other manner it deems necessary.
Sec. 220. Rights of person adjudged to be entitled to office.If judgment be rendered in favor of the person averred to be entitled
to the office he may, after taking the oath of office and executing any official bond required by law, take upon himself the execution of the
office, and he shall immediately thereafter demand of the defendant all the books and papers in his custody or within his power appertaining to the office from which he has been ousted.
Sec. 221. How judgment of court enforced.If such defendant refuse or neglect to deliver over any such book or paper pursuant to demand, he shall be deemed guilty of a contempt of court and shall be fined in anv sum not exceeding twentv-five hundred dollars and imprisoned until he complies with the order of the court, or is otherwise discharged by due course of law.
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Sec 222. Action for damages against person ousted.Such person may, at any time within one year after date of such judgment, bring an action against the party ousted and recover the damages sustained by reason of his usurpation.
Sec 223. Judgment when corporation has forfeited its rights. "When, in any such action, it is found and adjudged that a corporation has, by an act done or omitted, surrendered, or forfeited its corporate rights, privileges, and franchise, or has not used the same during the term of five years, judgment shall be entered that it be ousted and excluded therefrom and that it be dissolved; but when it is found and adjudged that a corporation has offended in any matter or manner which does not by law work as a surrender or forfeiture, or has misused a franchise or exercised a power not conferred by law, but not of such a character as to work a surrender or forfeiture of its franchise, judgment shall be rendered that it be ousted from the continuance of such offense or the exercise of such power.
Sec 224. Appointment of receiver when corporation dissolved. The court rendering a judgment dissolving a corporation shall appoint a receiver of all its assets, agreeably to section one hundred eighty-five, who shall proceed to administer the same in accordance with the provisions of sections one hundred eighty-six to one hundred
Sec 225. How receiver placed in possession.An officer of such corporation who refuses or neglects, upon demand, to deliver over to the receiver all money, property, books, deeds, notes, bills, obligations, and papers of every description and within its power or control, belonging to the corporation, or in any wise necessary for the settlement of its affairs, or the discharge of its debts and liabilities, shall be deemed guilty of a contempt of court, and shall be fined not exceeding twenty-five hundred dollars, and imprisoned until he complies with the order of the court, or is otherwise discharged by due course of law; and he shall be liable to the receiver for the value of all money or other things so refused or neglected to be surrendered, together with all damages that may have been sustained by the stockholders and creditors of the corporation, or any of them, in consequence of such neglect or refusal.
Sec 226. Judgment for costs.If judgment be rendered in such action against a corporation or against a person claiming to be a corporation, the court may render judgment for the costs against the directors or other officers of the corporation, or against the person claiming to be the corporation. If judgment be rendered for the defendant he shall recover his costs from the plaintiff, if the plaintiff be not the Government.
Sec 227. Limitations.Nothing herein contained shall authorize an action against a corporation for forfeiture of charter, unless the
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same be commenced within five years after the act complained of was done or committed; nor shall an action be brought against an officer to be ousted from his office unless within one year after the cause of such ouster, or the right to hold the office, arose.
Sec 228. Certiorari proceedings.When the ground of the complaint in an action in a Circuit Court is that an inferior tribunal, board, or officer exercising judicial functions, has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor any plain, speedy, and adequate remedy, and the court, on trial, finds the allegations of the complaint to be true, it shall render a judgment ordering such inferior tribunal, board, or officer, or other person having the custody of the record or proceedings, at a specified time and place, to certify to the court a transcript of the record and the proceedings (describing or referring to them with convenient certainty) that the same may be reviewed by the court; and requiring the party, in the meantime, to desist from further proceedings in the matter to be reviewed, if, in the judgment of the court, a stay ought to be granted.
Sec 229. Service of order.A certified copy of the judgment and order of the court, as provided in the preceding section, shall be served upon such inferior tribunal, board, or officer in such manner as the court may direct.
Sec. 230. Enforcement of order.If such order is not obeyed, the court may enforce it by attachment and by fine and imprisonment as for contempt.
Sec. 231. Final proceedings in certiorari.When the proceedings complained of have been fully certified, the court shall hear the parties and determine whether the inferior tribunal, board, or officer
has regularly pursued its authority; and if it finds that such inferior tribunal, board, or officer has not regularly pursued its authority, it shall thereupon give final judgment, either affirming, or annulling, or modifying the proceedings below, as the law requires.
Sec. 232. Certifying judgment to inferior tribunal.A copy of the final judgment, signed by the clerk, shall be transmitted to the inferior tribunal, board, or officer having the custody of the record or proceedings certified up.
Sec. 233. Mandate.When the complaint in an action in a Circuit Court alleges that an}7 inferior tribunal, corporation, board, or person unlawfully neglects the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or
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unlawfully excludes the plaintiff from the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person, and the court, on trial, finds the allegations of the complaint to be true, it may, if there is no other plain, speedy, and adequate remedy in the courts of law, render a judgment granting a peremptory order against the defendant, commanding him, immediately after the receipt of such order, or at some other specified time, to do the act required to be done to protect the rights of the plaintiff.
Sec. 234. Damages in such action.If judgment be given for the plaintiff, he may recover in the same action the damages which he has sustained, as determined by the court, by reason of the wrongful acts of the defendant, together with costs.
Sec. 235. Service of the order.A certified copy of the judgment and order of mandate shall be served upon the defendant in such manner as the court may direct.
Sec. 23G. Enforcement of order of mandate.When a peremptory mandate has been issued to and served upon any inferior tribunal, corporation, board, or person, as provided in the preceding section, if it be made to appear to the court that any member of such tribunal, corporation, or board, or such person upon whom the order has been
personally served, has, without just excuse, refused or neglected to obey the same, the court may, upon motion and notice to the defendant, and hearing, impose a fine not exceeding five hundred dollars upon the person offending.
In case of persistence in a refusal of obedience, the court may order the party to be imprisoned until the order is obeyed, and may make any orders necessary and proper for the complete enforcement of the mandate.
Sec. 237. Prohibition.When the complaint in any action pending in any Circuit Court alleges that the proceedings of any inferior tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, were without or in excess of the jurisdiction of
such tribunal, corporation, board, or person, and the court, on trial, shall find that the allegations of the complaint are true, and that the plaintiff has no other plain, speedy, and adequate remedy in the ordinary course of law, it shall render a judgment in favor of the plaintiff, including an order commanding the defendant absolutely to desist or refrain from further proceedings in the action or matter specified therein.
Sec. 238. Service of judgment and order.A certified copy of the judgment and order of prohibition shall be served upon the defendant in such manner as the court shall direct.
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Sec. 239. Enforcement order of prohibition.An order of prohibition may be enforced in the same manner as is provided for the enforcement of an order of mandate.
Sec. 240. Preliminary injunctions in certiorari, mandate, and prohibition proceedings.A preliminary injunction in certiorari, mandate, and prohibition proceedings may be granted by the judge if, in his judgment, such injunction is necessary for the preservation of the rights of the parties, pending litigation.
Sec. 241. Expediting such proceedings.The court may in its discretion, make such orders as it deems necessary for expediting proceedings in actions praying for certiorari, mandate, or prohibition, and the judge may make such orders in vacation, as well as in term time.
Sec. 242. What contempt of court may be punished summarily. A Circuit Court may punish summarily, by fine not exceeding one hundred dollars, or by imprisonment not exceeding ten clays, or both, a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice, including the refusal of a person present in court to be sworn as a witness or to answer as a witness when lawfully required.
Sec. 243. What other acts are contempts of court.A person guilty of any of the following acts may be punished as for contempt:
1. Disobedience of or resistance to a lawful writ, process, order, judgment, or command of a court, or injunction granted by a court or judge;
2. Misbehavior of an officer of the court in the performance of his official duties, or in his official transactions;
3. A failure to obey a subpoena duly served;
4. The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of the court held by him.
Sec. 244. When accused entitled to be heard.In cases under the last section, a charge in writing shall be filed with the clerk, an entry thereof made upon the docket, and an opportunity given to the accused to be heard, by himself or counsel; but this section shall not be so construed as to prevent the court from issuing process to bring the accused party into court, or from holding him in custody pending such proceedings.
Sec. 245. Eight of accused to bail.In such proceedings if the hearing is not ordered to be held forthwith, the court may fix the amount of an obligation to be given by the accused, with surety to the satisfaction of the court, for the appearance of the accused to answer the charge; and upon the approval of such obligation the accused shall be released from custody.
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Sec. 240. Trial of the charge.Upon the day fixed for the trial the court shall proceed to investigate the charge and shall hear any answer or testimony which the accused may make or offer.
Sec. 247. Punishment if found guilty.The court shall then determine whether the accused is guilty of the contempt charged; and, if it be adjudged that he is guilty, he may be fined not exceeding five hundred dollars, or imprisoned not more than six months, or both. If the contempt consists in the violation of an injunction, the person guilty of such contempt may also be ordered to make complete restitution to the party injured by such violation.
Sec. 248. Imprisonment until order obeyed.When the contempt consists of the omission to do an act, which is yet in the power of the accused to perforin, he may be imprisoned until he performs it.
Sec. 249. Proceedings when party released on bail fails to appear. If the party released on bail fail to appear upon the day named, the court may issue another order of arrest, or may order the obligation for his appearance to be prosecuted, or both; and, if the obligation be
prosecuted, the measure of damages shall be the extent of the loss
or injury sustained by the aggrieved party by reason of the misconduct for which the contempt was prosecuted and the costs of the proceedings, and such recovery shall be for the benefit of the party injured.
Sec. 250. Right of court who committed prisoner to release him. When a person has been imprisoned for contempt, the court or judge who made the order may discharge him from imprisonment, when it shall be made to appear to the court or judge that the public interests will not suffer thereby.
Sec. 251. Final judgment.The judgment and orders of a Circuit Court, made in cases of contempt, may be reviewed by the Supreme Court; but execution of the said final judgment and orders shall not be suspended until there is filed by the person in contempt, in the court rendering the judgment or making the order, an obligation with sureties to the acceptance of the judge, in an amount to be by him fixed, conditioned that he will prosecute an appeal with all due diligence and that if the judgment be against him he will abide and perform the order or judgment. But such review shall be had only after final judgment in the action in the Circuit Court, and when the cause has regularly passed to the Supreme Court, as in this Code provided.
The Supreme Court shall hear said cause and dispose of the same at the first term of the Court at which said appeal could be regularly heard.
Foreclosure of mortgage.
Sec. 252. Where action for foreclosure of real-estate mortgage must be instituted.An action for the foreclosure of a mortgage or other
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incumbrance upon real estate, or an interest therein, must be brought in the circuit in which the land or some part thereof lies.
Sec. 253. The complaint in an action for foreclosure of a real-estate mortgage.In an action for foreclosure of a real-estate mortgage, or other incumbrance upon real estate the complaint shall set forth the date and due execution of the mortgage, its assignments, if any, the names and residences of the mortgagor and mortgagee, a description of the mortgaged premises, a statement of the date of the note or other obligation secured by the mortgage, and the amount claimed to be unpaid thereon, and the names and residences of all persons having or claiming an interest in the premises subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action.
Sec, 254. Trial and judgment in foreclosure suit.If upon trial in such action the court shall find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and costs, and shall render judgment for the sum so found due, and order that the same be paid into court on or before the first day of the next term of the court immediately succeeding the one at which such order was made, and that in default of such payment the land shall be sold to realize the mortgage debt and costs.
Sec. 255. Sale of the mortgaged property.When the defendant, after being directed to do so, as provided in the last preceding section, fails to pay the principal, interest, and costs at the time directed in the order, the court shall order the property to be sold in the manner and under the regulations that govern sales of real estate under execution; but such sale shall not affect the rights of persons holding prior incumbrances upon the same estate or a part thereof. The sale, when confirmed by decree of the court, shall operate to divest the rights of all the parties to the action and to vest their rights in the purchaser. Should the court decline to confirm the sale, for good cause shown, and should set it aside, it shall order a resale in accordance with law.
Sec. 256. Disposition of proceeds.The money arising from the sale of mortgaged property, under the regulations hereinbefore prescribed, shall, after deduction of costs of sale, be paid to the person foreclosing the mortgage, and when there shall be any surplus, after paying off such mortgage or other incumbrance, the same shall be paid to junior incumbrancers in the order of the priority, to be ascertained by the court, or if there be no such incumbrances or there be a surplus after payment of such incumbrances, then to the mortgagor or his agent, or to the person entitled to it.
Sec. 257. Disposition of proceeds in case the debt is not all due. If the debt for which the mortgage or incumbrance was held is not
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all due, so soon as sufficient of the property has been sold to pay the amount due, with costs, the sale must cease; and afterwards, as often as more becomes due for principal or interest, the court may, on motion, order more to be sold. But if the property can not be sold in portions without injury to the parties, the whole shall be ordered to be sold in the first instance and the entire debt and costs paid, a rebate of interest being made where such rebate is proper.
Sec. 258. Judgment for balance after sale of property.Upon the sale of any real property, under a decree for a sale to satisfy a mortgage or other incumbrance thereon, if there be a balance due to the complainant after applying the proceeds of the sale, the court, upon motion, shall give a decree against the defendant for any such balance for which, by the record of the case, he may be personally liable to the plaintiff, upon which execution may issue immediately if the balance is all due at the time of the rendition of the decree; otherwise the plaintiff shall be entitled to execution at such time as the balance remaining would have become due by the terms of the original contract, which time shall be stated in the decree.
Sec. 250. Final record.The final record in the action shall set forth, in brief, the petition and other pleadings, judgment, orders, the proceeding under the order of sale, and the decree confirming the same, and the name of the purchaser, with a description of the estate by him purchased.
Manual delivery of personal property.
Section 260. Delivery of litigated personed property to plaintiff. Whenever the complaint in an action shall pray for the recovery of the possession of personal property, the plaintiff may, at the time of instituting the action, or at any time before answer, file a notice claiming the delivery of such property to him, in the manner hereinafter provided.
Sec 261. Affidavit and obligation to be filed by plaintiff.Where a delivery is claimed an affidavit must be made by the plaintiff, or by some one in his behalf, showing:
1. That the plaintiff is the owner of the property claimed (particularly describing it) or is entitled to the possession thereof;
2. That the property is wrongfully detained by the defendant;
3. The alleged cause of detention thereof according to his best knowledge, information, and belief;
4. That it has not been taken for a tax assessment or fine pursuant to law, or seized under an execution, or an attachment against the property of the plaintiff, or. if so seized, that it is by law exempt from such seizure;"
5. The actual value of the property.
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The plaintiff shall also at the same time file with the clerk a written obligation of the plaintiff, executed by two or more sureties approved by the court, to the effect that they are bound to the defendant in double the value of the property, as stated in the affidavit for the prosecution of the action, for the return of the property to the defendant, if the return thereof be adjudged, and for the payment to him of such sum as may in the cause be recovered against the plaintiff. The affidavit and obligation shall be filed with the clerk of the court in which the action is pending.
Sec. 262. Warrant of seizure.Upon the filing of such affidavit and obligation it shall be the duty of the clerk, at the request of the plaintiff or his attorney, to issue, under the seal of the court, a warrant requiring the officer of the court forthwith to take into his custody the personal property alleged to be wrongfully detained.
Sec. 263. Service of warrant.Upon receiving the warrant named in the last section the officer must forthwith take the property described in the warrant, if it be in the possession of the defendant or his agent, and retain it in his custody. If the property, or any part thereof, be concealed in a building or inclosure, the officer must publicly demand its delivery; if it be not delivered, he must cause the building or inclosure to be broken open and take the property into his possession. When the officer has taken property as herein provided, he must keep it in a secure place and ultimately deliver it to the party entitled thereto, upon receiving his fees for taking and his necessary expenses for keeping the same. He must, without delay, serve on the defendant a copy of the notice, undertaking, and warrant, in the manner provided by law for service of process.
Sec 264. Proceedings when objection is made to the sufficiency of the obligation.The defendant may, within two days after the service of a copy of the affidavit and undertaking and warrant, give notice to the clerk that he excepts to the sufficiency of the obligation or of the sureties. If he fails to do so, he is deemed to have waived all objections to them. When the defendant excepts, the clerk, on notice to both parties, and on hearing, shall investigate the sufficiency of the sureties as to their financial responsibility. If the clerk finds the obligation to be insufficient in amount, he shall require a new obligation with sufficient sureties forthwith. In either case, if the plaintiff does not forthwith furnish a sufficient obligation with sufficient sureties, the clerk shall make an order for the return of the property to the defendant, and it shall be returned. If the defendant except to the obligation or to the sureties, he can not reclaim the property as provided in the next section.
Sec. 265. Delivery of property to the defendant.At any time before the delivery of the property to the plaintiff, as in this section
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provided, the defendant may, if he do not except to the obligation or sureties of the plaintiff, require the return thereof, upon delivering to the clerk a written obligation to the plaintiff executed by him, with two or more sufficient sureties, to the effect that they are bound in double the value of the property as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment of such sum to him as may be recovered against the defendant. If a return of the property be not so required within five days after the taking and service of notice to the defendant, it must be delivered to the plaintiff, as' herein provided.
Sec 266. Defendants obligation and sureties.The defendant's sureties, upon notice to the plaintiff, not less than two nor more than five days, must justify before the clerk, and upon such justification the officer must deliver the property to the defendant. If the defendant's sureties, or others in their place, fail to justify at the time and place appointed, the officer must deliver the property to the plaintiff.
Sec 267. Responsibility of officer and clerk.The officer will be responsible for the property until the same is delivered to the plaintiff or defendant, as herein provided. The clerk will be responsible for the sufficiency of the sureties at the time he shall approve them, but not for their sufficiency at a subsequent date should their financial standing be thereafter changed.
Sec 268. // property claimed by third person.If the property taken be claimed by any other person than the defendant or his agent, and such person make an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serve the same upon the officer while he has possession of the property, the officer is not bound to keep the property, or deliver it to the plaintiff, unless the plaintiff on demand of him or his agent, indemnify the officer against such claim by an obligation with two sufficient sureties; and no claim to such property or damage for its seizure, by any other person than the defendant or his agent, shall be valid against the officer unless so made. But nothing herein contained shall prevent such third person from vindicating his claim to the property by any proper action.
Sec. 269. Return of papers.The officer must file the warrant with his proceedings indorsed thereon, with the clerk of the court within twenty days after taking the property mentioned therein.
Sec 270. Final judgment.On trial, the court shall adjudge the property to the plaintiff, or to the defendant, as the law and facts warrant, together with such damages and costs as either party establishes a right to recover.
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to establish titles to real property.
Sec 271. Power of Circuit Courts to establish title to real estate. Any and all Circuit Courts in the Canal Zone shall have power to inquire into the condition of any title of or interest in any land in the circuit in which the court is held and to make all such orders, judgments and decrees as may be necessary to determine and establish said title or interest, legal or equitable, against all persons known or unknown, and all liens existing on such lands, whether by statute, judgment, mortgage, deed of trust or otherwise.
Sec. 272. Who may sue.It shall be lawful for any person claiming title to any land in such circuit and for all claiming under such person, to file a petition in the Circuit Court in which the land^.or a part thereof, are situated praying for a decree establishing and confirming his said title.
By resolution of the Isthmian Canal Commission, the General Counsel of said Commission, or the Prosecuting Attorney of the Canal Zone, or other legal officer of said Commission named in said resolution, may file such petition in any Circuit Court of a circuit in the Canal Zone wherein lands are situated, the title of which is claimed to be either in the United States Government, the Isthmian Canal Commission, or the Panama Railroad Company.
Sec. 273. Contents of petition, verification.Any number of parcels of land may be included in one petition, or separate petitions may be filed, as the petitioner may elect,
Said petition shall state clearly the description of said lands, the character and extent of the estate claimed by the petitioner, and from whom, and when, and by what mode he derived his title thereto. It shall give the names of all persons owning or claiming any estate or interest in said lands, or any part thereof, and also all persons who shall be in possession of said land, or any part thereof, and also all persons to whom any such lands shall have been conveyed, and their residences, so far as the same are known to said petitioner, and if no persons are known to said petitioner it shall be so stated in said petition.
Should said petition be filed by a private party it shall be verified by the said petitioner or by the agent of said petitioner; and the party so swearing falsely shall be deemed guilty of perjury and punished accordingly, and shall be liable in damages to any person injured by such false statements, to be recovered in an action in any court having jurisdiction thereof.
If said petition is filed under the direction of the Isthmian Canal Commission the same need not be verified.
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Sec 274. Summons.All persons so named in said petition shall be made defendants, and shall be notified of said suit bv summons, if residents of the Canal Zone, in the same manner as is now or may hereafter be required by law: Provided, That the notice specified in this act shall be the only publication notice required, in either the case of residents, non-residents or otherwise. All other persons shall be deemed and taken as defendants, by the name or designation of "All whom it may concern."
Sec. 275. Clerk's docket, notice.It shall be the duty of the clerk of the court in which said petition is filed, to enter in a separate booli or books to be kept for that purpose, the name of the petitioner and defendant, the date of filing said petition, and a description of all the lands included therein, which record shall at all times be open to the public. All lands in each separate administrative district shall be entered on the same page, or consecutive pages, with an index to said book or books, showing on what page any such separate administrative district may be found. Said clerk shall also, in all cases, cause publication of notice to be made of the filing of said petition, which notice shall be entitled Land title notice" and shall be substantially as follows:
A B, C D, etc. (here giving the names of all known defendants, if &\\y)and to all whom it may concern:
Take notice.That on the____day of______A. D. 19__a petition
was filed by the undersigned, in the Circuit Court of____________
Judicial Circuit, of the Canal Zone, to establish his title to the following described land (here insert a full description of the land in said
petition). Now, unless you appear at the____________term of said
court (naming the first term, after thirty days from the first insertion of said notice) and show cause against such application, said petition shall be taken for confessed, and the title or interest of said petitioner will be deemed and established according to the prayer of said petition, and you forever barred from disputing the same.
E F, Petitioner. G P, Solicitor.
Said notice shall be published once a week for three weeks successively in a newspaper or newspapers of general circulation published in the Canal Zone, or in the Cities of Colon or Panama, and the first insertion shall be at least thirty days prior to said term of court.
Sec. 276. Demurrer, answer.Any person interested may oppose any such petition, and file his demurrer or answer thereto on or before the third day of the term of court named in said publication notice, unless the time be extended by order of court. Said answer shall admit, confess or avoid or traverse all the material allegations of the petition or ask for affirmative relief, and shall, except when made by guardians ad litem, be verified by the affidavit either of the defendant or his agent, in the same manner as above required for the petition. Said answer shall have no other nor greater weight than the petition.
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Sec. 277. Further procedure.If no demurrer or answer shall be filed by the third day of said term, or by the day allowed by the order of said court, as above provided, the petition may be taken for confessed, and a decree entered according to the prayer of said petition, upon proof of the facts stated in said petition; but if any person shall file an answer, as aforesaid, to such petition, the court may hear evidence, or order a reference to a referee or commissioner to take evidence and report, under the procedure of Chapter VII of this code. If the petition includes more than one parcel of land and no demurrer or answer shall be filed as to some of said parcels, the court may enter a decree, pro-confe>so, as to those parcels as to which no demurrer or answer shall be filed, and hear evidence or order a refer-
Sec. 279. Reopening decree, subsequent action.Said decree of >aid court, whenever entered, shall be forever binding and conclusive: Provided, That an}T decree shall be subject to be opened, modified, or set aside on appeal or writ of error, sued out within two years after the entry of such decree: And provided further, That insane persons and minors shall have two years after their disabilities are removed to prosecute a writ of error upon said decree: Provided further, That any decree entered upon any petition or answer, asking for affirmative relief which does not make defendant, by name, all persons who shall be in possession of such land, or any part thereof, at the time of the filing of such petition or which does not make defendant, by name, all persons to whom any such land shall have been conveyed, if said persons' name- can be ascertained, shall be absolutely void as to such person omitted, but shall be final and conclusive as to all others: And provided further. That any defendant who shall not be actually served with a summons in the suit in which such decree niav be rendered, shall have allowed to him one year after the entry of such decree within which, upon petition to the court rendering the same, to have the said decree vacated as to him. and if it shall appear upon the hearing of such petition that such decree ought not to have been made against such defendant, the same may be vacated, set aside, altered or modified as
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shall appear just, otherwise the same shall be ordered to stand affirmed against said defendant. Provided this Section shall not be so construed as to prevent the complainant from beginning a subsequent action against any person whomsoever in possession of such land and whose presence on said land was unknown, or could not have been, by reasonable diligence, discovered at the time the action was begun.
Sec. 280. Representatives.Executors, administrators, conservators, guardians and trustees shall be entitled to proceed, under this act, in behalf of the interest and right they represent.
i, v \ne exeat.
Sec. 281. HVhen writ may issue.Writs of ne exeat republica may hereafter be granted by the circuit court, as well in cases where the debt or demand is not actually clue, but exists fairly and bona fide in expectancy at the time of making the application, as in cases where the demand is due; and it shall not be necessary, to authorize the granting of such writ of ne exeat, that the applicant should show that his debt or demand is purely of an equitable character.
Sec. 282. In favor of co-obligors or co-debtors.In case of joint, or joint and several obligors or debtors, if one or more of them be about to remove without the Canal Zone, taking their property with them, leaving one or more co-obligors or co-debtors bound with them for the payment of any sum of money, or for the delivery of any article of property, or for the conveyance of land at a certain time, which time shall not have arrived at the time of such intended removal, such co-obligor or co-debtor who remains shall be entitled, upon application, to a writ of ne exeat, to compel the co-obligor or co-debtor who is about to remove to secure the payment of his part of the sum to be paid, or the delivery of the property, or to convey, or to join in the conveyance of the land. The writ of ne exeat may also issue in cases of security, on application of a surety, against the principal or cosurety, when the obligation or debt shall not yet be due, and the principal or co-surety is about to remove out of the Canal Zone.
Sec. 283. Procedure when granted by judge.When a writ of ne exeat is granted by a judge, he shall direct the clerk of the court to which the writ is to be returnable to issue the same.
Sec. 284. Returnable where.All writs of ne exeat shall be returnable into the court out of which they issue.
Sec. 285. When judge absent.When no judge authorized to issue writs of ne exeat is present in the circuit, or being present, is unable or incapacitated to act, any other Circuit judge may order the issuing of such writs.
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Sec. 286. Bill or petition necessaryaffidavitbond, suit on. No writ of ne exeat shall be granted but on petition filed, and affidavit to the truth of the allegations therein contained. Upon the granting of any such writ, the judge shall indorse or cause to be indorsed upon the petition, in what penalty bond and security shall be required of defendant. Said judge shall also take* or cause to be taken of the complainant, before the writ shall issue, bond with good and sufficient surety, in such sum as the judge shall deem proper, conditioned that the said complainant will prosecute his petition with effect, and that he will reimburse to the defendant such damages and costs as he shall wrongfully sustain by occasion of the said writ. If any defendant to such writ of ne exeat shall think himself aggrieved, he may bring suit on such bond, and if, on trial, it shall appear that such writ of ne exeat was prayed for without a just cause, the person injured shall recover damages, to be assessed as in other cases on penal bonds.
Sec. 287. Form of writbond by defendanttemporary departure no breach.The writ of ne exeat shall contain a summons for the defendant to appear in the proper court, and answer the petition, and upon the writ being served upon the said defendant, he shall give bond, with surety in the sum endorsed on such writ, conditioned that he will not depart the Canal Zone without leave of the said court, and that he will render himself in execution to answer any judgment or decree which the said court may render against him; and in default of giving such security, he may be committed to jail, as in other cases, for the want of bail. No temporary departure from the Canal Zone shall be considered as a breach of the condition of the said bond, if he shall return before personal appearance shall be necessary to answer or perform any judgment, order or decree of said court.
Sec. 288. Surrender of defendant by surety.The surety in any bond for the defendant, as aforesaid, may, at any time before the said bond shall be forfeited, surrender the said defendant, in exoneration of himself, in the same manner that bail may surrender their principal, and obtain the same discharge.
Sec. 289. Proceedings on return of writ.On the return of the writ of ne exeat, if the same shall have been duly served, the court shall proceed therein as in other cases, if the time of performance of the duty or obligation of the defendant has expired; if not, then the proceeding shall be stayed until it has expired.
Sec. 290. Quashing or setting aside writ.Nothing contained in the preceding section shall prevent the court from proceeding at any time to determine whether the writ ought not to be quashed or set aside. The writ may be set aside at the end of six months upon the defendant's turning into court such money or property as he possesses, excluding necessary wearing apparel, and filing an affidavit that he is possessed of no further property.
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rules of evidence-affidavits and depositions-perpetuation of
Rules of evidence.
Sec. 291. Preponderance of evidence, how to determine.In determining where the preponderance or superior weight of evidence on the issues involved lies, the witnesses, their manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility, so far as the same may legitimately appear upon the trial, must be considered. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greatest number.
Sec. 292. The same rules in all cases in till courts of the Zone.The rules of evidence shall be the same in all courts of the Canal Zone and upon every trial, unless otherwise expressly provided.
Sec. 293. Matter judicially recognized.The existence and territorial extent of the Canal Zone, its forms of government, and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the United States and of the Canal Zone, the seals of the several departments of the United States, and the states of the Union, and of the Canal Zone and Republic of Panama, public and private, and official acts of the legislative, executive, and judicial departments of the United States and of the Canal Zone, the laws of nature, and the measure of time, the geographical divisions and political history of the world, and all similar matters of public knowledge shall be judicially recognized by the court without the introduction of proofs; but the court may receive evidence upon any of these subjects, when it shall find it necessary for its own information, and may resort for its aid to appropriate books,' documents, or evidence.
Sec. 294. Personal knowledge and hearsay evidence.A witness can testify to those facts only which he knows of his own knowledge; that is, which are derived from his own perception, except in those few express cases in which his opinions or inferences from the declarations of others, as hereinafter stated, are admissible.
Sec. 295. Rights of party not prejudiced, by act, declaration, or omission of another.The rights of a party can not be prejudiced by the declaration, act, or omission of another, except by virtue of a particular relation between them, as hereinafter stated; therefore proceedings against one can not affect another.
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Sec. 296. Exception where one derives title to real property from another.Where, however, one derives title to real property from another, the declaration, act, or omission of the latter, while holding the title, in relation to the property, is evidence against the former.
Sec. 297. Exception where declaration, act, or omission forms part of the transaction.Where, also, the declaration, act, or omission forms part of a transaction, which is itself a fact in dispute, or evidence of that fact, such declaration, act, or omission, is evidence as part of the transaction. Such evidence may be termed admissible as constituting a part of the res gestae.
Sec. 298. Where dispute relates to obligation or duty of third per-son, prima facie evidence.Where the question in dispute between the parties is the obligation or duty of the third person whatever would be the evidence for or against such person is prima facie evidence between the parties; prima facie evidence being that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence.
Sec. 299. Hearsay evidence of questions of pedigree.The declaration, act, or omission of a member of a family who is not living, or is outside the jurisdiction of the Canal Zone, is admissible as evidence of pedigree of relationship, or family genealogy in cases where pedigree, relationship, or family genealogy are questions at issue.
Sec. 300. Declaration, act, or omission of deceased person against his interest.The declaration, act, or omission of a deceased person, having sufficient knowledge of the subject, against his pecuniary interest, is admissible as evidence to that extent against his successor in interest.
Sec. 301. When part of acts, declaration, or writing given m evidence, the remainder available to opposite party.-When part of an act, declaration, conversation, or writing is given in evidence by one party, the whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation or writing which is necessary to make it understood, may also be given in evidence.
Sec. 302. Original writing must ordinarily be produced.There can be no evidence of the contents of a writing, other than the writing itself, except in the following cases:
1. When the original has been lost or destroyed, in which case proof of the loss or destruction must first be made;
2. When the original is in possession of the party against whom the evidence is offered, who fails to produce it after reasonable notice;
3. When the original is a record or other document in the custody of a public officer;
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4. When the original has been recorded and a certified copy of the
record is made evidence by law;
5. When the original consists of numerous accounts or other documents, which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general
result of the whole.
6. The books of account and documents of merchants, corporations, and business men kept in the regular course of business and shown to be genuine and the entries therein to have been made in the ordinary course of business before the possibility of litigation arising out of the items to which they relate, shall be prima facie evidence of what they purport to state, and it shall not be necessary under these circumstances to produce the parties making the original entries.
Sec. 303. Written agreement presumed to contain all the terms of the agreement.When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be, between the parties and their representatives or successors in interest, no evidence of the terms of the agreement other than the contents of the writing, except in the following cases:
1. Where a mistake or imperfection of the writing, or its failure to express the true intent and agreement of the parties, is put in issue by the pleadings;
2. Where the validity of the agreement is the fact in dispute. But this section does not exclude evidence of the circumstances under which the agreement was made with the view of better ascertaining its meaning, to which it relates, or evidence to establish its illegality or fraud.
The term agreement" includes deeds and instruments conveying real estate, and wills as well as contracts between parties.
Sec. 304. Writing to be interpreted according to legal meaning. The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties have reference to a different place.
Sec. 305. Construction of a statute or instrument containing several provisions.In the construction of a statute the intention of the legislature, and in the construction of an instrument, the intention
of the parties, is to be pursued; and when a general and particular provision are inconsistent, the latter is paramount to the former.
So a-particular intent will control a general one that is inconsistent
Sec. 306. For construction of an instrument circumstances may be shown.For the proper construction of an instrument, the circum-
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stances under which it is made, including the situation of the subject of the instrument and the parties to it, may also be shown, so that the judge may be placed in the position of those whose language he is to interpret.
Sec, 307. Terms of a writing presumed to be in their ordinary sense.The terms of a writing are presumed to have been used in the primary and general acceptation, but evidence is nevertheless admissible that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly.
Sec. 308. Instruments partly written and partly printed.When an instrument consists partly of written words and partly of a printed form and the two are inconsistent, the former controls the latter.
Sec. 309. Experts and interpreters to be used in explaining certain writings.When the characters in which an instrument is written are difficult to be deciphered or the language is not understood by the court, the evidence of a person skilled in deciphering the characters, or who understands the language, is admissible to declare the characters or meaning of the language.
Sec. 310. Where intention of different parties to instruments not the same.When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision was made.
Sec. 311. Construction in favor of natural right.When a statute or instrument is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted.
Sec. 312. Material allegations only need be proved.No allegation contained in the complaint or answer immaterial to the issues need be proved.
Sec. 313. Evidence must be relevant.Evidence must correspond with the substance of the material allegations and be relevant to the questions in dispute. Collateral questions must therefore be avoided. It is, however, within the discretion of the court to permit the inquiry into a collateral fact when such fact is directly connected with the question in dispute and is essential to its proper determination, or when it affects the credibility of a witness.
Sec. 314. Party must prove his affirmative allegation.Each party must prove his own affirmative allegation. Evidence need not be given in support of a negative allegation except when such negative allegation is an essential part of the statement of the right or title
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on which the cause of action or defense is founded, nor even in such case when the allegation is a denial of the existence of a document the custody of which belongs to the opposite party.
Sec. 315. To what facts evidence may be given.In conformity with the preceding provision evidence may be given upon a trial of the following facts:
1. The precise fact in dispute;
2. The act, declaration, or omission of a party as evidence against such party;
3. An act or declaration of another in the presence and within the observation of a party, and his conduct in relation thereto, where the act or declaration is such as naturally to call for action or comment by such party;
4. The act or declaration, verbal or written, of a deceased person, or a person not in the Canal Zone, in respect to the relationship, birth, marriage, or death of any person related by blood or marriage to such deceased person or persons; the act or declaration of a deceased person done or made against his interests in respect to his real property;
5. After proof of a partnership or agency, the act or declaration of a partner or agent of the party within the scope of the partnership or agency during its existence. The same rule applies to the act or declaration of a joint owner, or joint debtor, or other person jointly interested with the party;
6. After proof of a conspiracy, the act or declaration of a conspirator relating to the conspiracy;
7. The act, declaration, or omission forming part of a transaction;
8. The testimony of a witness deceased or out of the jurisdiction, or unable to testify, given in a former action between the same parties, relating to the matter;
9. The opinion of a witness respecting the identity or handwriting of a person, when he has knowledge of the person or handwriting; his opinion on a question of science, art, or trade, when he is skilled therein;
10. The opinion of a subscribing witness to a writing, the validity of which is in dispute, respecting the mental sanity of the signer; and the opinion of an intimate acquaintance respecting the sanity of a person, the reason for the opinion being given;
11. Common reputation existing previous to the controversy, respecting facts of a public or general interest more than thirty years old, and in cases of pedigree and boundary;
12. Usage, to explain the true character of an act, contract, or instrument, where such true character is not otherwise plain; but usage is never admissible except as an instrument of interpretation;
13. Monument and inscription in public places, as evidence of
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common reputation; and entries in family bibles or other family books or charts; engravings on rings, family portraits and the like,
as evidence of pedigree;
14. The contents of a writing, when oral evidence thereof is admissible ;
15. Any other facts from which the facts in issue are presumed or
are logically inferable;
16. Such facts as serve to show the credibility of a witness by affecting his reputation for truth, and by showing his motives, and by evidence of contradictory statements made by him as to the subject-matter of his evidence.
Sec. 316. Public writings.The written acts or record of the acts of the sovereign authority, of official bodies and tribunals and of public officers, legislative, judicial, and executive of the Canal Zone, or of the United States, or of any State of the United States or of a foreign country, and public records kept in the Canal Zone of private writings are public writings. A copy of a public writing, duly certified to be a true copy thereof, is admissible evidence in like cases and with like effect as the original writing.
Sec. 317. Printed laws of the State or count,;/.Books printed or published under the authority of the United States, or one of the States of the United States, or a foreign country, and purporting to contain statutes, codes, or other written law of such State or country or proved to be commonly admitted in the tribunals of such State or country as evidence of the written law thereof, are admissible in the Canal Zone as evidence of such law.
Sec, 318. Attested copy of foreign law.A copy of the written law or other public writing of any state or country attested by the certificate of the officer having charge of the original, under the seal of the state or country, is admissible as evidence of such law or writing.
Sec. 319. Oral proof of United States or foreign unwritten law. The oral testimony of witnesses, skilled therein, is admissible as evidence of the unwritten law of the United States or of any State of the United States, or foreign country, as are also printed and published books of reports of decisions of the courts of the United States or of such State or country, or proved to be commonly admitted in such courts.
Sec. 320. Proof of domestic judicial records.A judicial record of the proceedings in a court of justice, or of official acts of a judicial officer in an action or special proceeding within the United States or any State or Territory thereof, or within the Canal Zone, may be proved by the production of the original or by a copy thereof, certified by the clerk or other person having the legal custody thereof, with the seal of the court annexed, together with a certificate of the
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chief judge or presiding magistrate that the attestation is in due form.
Sec. 321. Proof of foreign judicial records.A judicial record of a foreign country may be proved by the attestation of the clerk, with the seal of the court annexed, if there be a clerk and seal, or of the legal keeper of the record, with the seal of his office annexed, if there be a seal, together with a certificate of the chief judge or presiding magistrate that the person making the attestation is the clerk of the court, or legal keeper of the record, and, in either case, that the signature of such person is genuine and that the attestation is in due form. The signature of the chief judge or presiding magistrate must be authenticated by the certificate of a minister or ambassador, or a consul, vice-consul, or consular agent of the United States in such foreign country.
Sec. 322. Proof of foreign judicial record by examined copy.A copy of the judicial record of a foreign country is also admissible in evidence, upon proof:
1. That the copy has been compared by the witness with the original, and is an exact transcription of the whole;
2. That such original was in the custody of the clerk of the court, or other legal keeper of the same;
3. That the copy is duly attested with the seal, if there prove to be a seal of the court where the record remains, if it be the record of the court; or if there be no such seal, or if it be not the record of the court, by the signature of the legal keeper of the original.
Sec. 323. Effect of judgment.The effect of a judgment or final order in an action or special proceeding before a court or judge of the Canal Zone or of the United States, or of any State or Territory of the United States, having jurisdiction to pronounce the judgment or order, shall be as follows:
1. In case of a judgment or order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or relation of a particular person, the judgment or order is conclusive upon the title of the thing, the will or administration, or the condition or relation of the person: Provided, That the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate;
2. In oilier cases the judgment so ordered is, in respect to the matter directly adjudged, conclusive between the parties and their successors in interest by title subsequent to commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity.
Sec. 324. What is deemed to have been adjudged in a former judgment.That only is deemed to have been adjudged in a former judg-
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ment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.
Sec. 325. When principal bound by judgment against surety. When the party is bound by a record, and such party stands in the relation of surety for another, the latter is also bound from the time that he has notice of the action or proceeding, and an opportunity at the surety's request to join in the defense.
Sec. 326. Effect of judicial record of a court in the United States. The effect of a judicial record of a court of the United States or of a court of one of the States or Territories of the United States, is the same in the Canal Zone as in the United States, or in the State or Territory where it is made, except that it can only be enforced here by an action or special proceeding, and except, also, that the authority of a guardian, or executor or administrator does not extend beyond the jurisdiction of the Government under which he was invested with his authority.
Sec. 327. Effect of judicial record of a court of admiralty for a foreign country.The effect of a judicial record of a court of admiralty of a foreign country is the same as if it were the record of a court of admiralty of the Canal Zone.
Sec. 328. Effect of other foreign judgment.The effect of a judgment of any other tribunal of a foreign country, having jurisdiction to pronounce the judgment, is as follows:
1. In case of a judgment against a specific thing, the judgment is conclusive upon the title to the thing;
2. In case of a judgment against a person, the judgment is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title; but the judgment may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.
Sec. 329. How judicial record may be impeached.Any judicial record may be impeached by evidence of a want of jurisdiction in the court or judicial officer, of collusion between the parties, or of fraud in the party offering the record, in respect to the proceedings.
Sec. 330. Proof of other official documents.Official documents may be proved, as follows:
1. Acts of the Chief Executive of the Canal Zone, by the record of his office, certified by his secretary under the seal thereof, if there be one; acts of the Executive of the United States, by the records of the Departments of the United States Government, wherein are contained the records of such acts, certified by the heads of such departments. They may also be proved by public documents printed by order of the Chief Executive of the Canal Zone, or the President of the United States, or by order of Congress, or either House thereof, or by the order of the Isthmian Canal Commission, or by the order of
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any legislative assembly which may be provided for the Canal Zone. Acts of the Executive of the territory now known as the Republic of Panama under Colombian or Panamanian administration may be proved by the records thereof in the custody of the United States officials, or officials of the said Governments, certified by the legal keeper of the records. They may also be proved by public documents printed by the order of the Chief Executive of the said Canal Zone. Acts of the Chief Executive of the Republic of Panama may be proved by the records of any department of that Executive, certified by the head of the department in which the record is;
2. The proceedings of the United States Isthmian Canal Commission, or of any legislative body that may be provided for the Canal Zone, or of Congress, by the journals of those bodies, or of either House thereof, or by published statutes or resolutions, or by copies certified by the clerk or secretary, or printed by their order. The proceedings of the legislative branch of the Government of Colombia or Panama prior to the twenty-third day of February, nineteen hundred and four, may be proved by public documents, or statutes or resolutions, printed by the order of the executive or legislative departments of the said Governments, or commonly received in those countries as such, or by copy certified under the seal of either the executive or the legislative branch of said Governments, or by a recognition thereof in some public act of the Executive of the United States;
3. The acts of the executive or the proceedings of the legislature of any State or Territory of the United States, in the
provided in paragraphs one and two;
4. The acts of the executive or the proceedings of the legislature of a foreign country, by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by recognition thereof in some public act of the Executive of the United States;
5. The acts of a municipal corporation of the Canal Zone, or of a board or department thereof, by a copy certified by the legal keeper thereof, or by a printed book published by the authority of such corporation;
6. Official documents of any other class in the Canal Zone, by the original, or by copy certified by the legal keeper thereof;
7. Official documents of any other class in the United States, or in any State or Territory thereof' by the original, or by a copy, certified by the legal keeper thereof, together with the certificate of the secretary of state, judge of the supreme, superior, or county court, or a mayor of a city of the United States, or of such State or Territory, that the copy is duly certified by the officer having the legal custody of the original;
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8. Official documents of any other class of a foreign country, by the original, or by a copy certified by the legal keeper thereof, with a certificate, under the seal of the country or sovereign, that the document is a valid and subsisting document of such country, and that the copy is duly certified by the officer having the legal custody of the original;
9. Official documents in departments of the United States Government, by the certificate of the legal custodian thereof.
Sec. 331. Proof of public record of private writing.An authorized public record of a private writing may be proved by the original record, or by a copy thereof, certified by the legal keeper of the record.
Sec. 332. Entries in official book.Entries in public or other
official books or records, made in the performance of his duty
by a public officer of the Canal Zone; or by another person in the
Zone in the performance of a duty specially enjoined by law, are
prima facie evidence of the facts therein stated.
Sec. 333. Proof of judgment of justice of the peace.A transcript from the record or docket of a justice of the peace within the United
States, or any State or Territory thereof, or of a district judge within the Canal Zone, of a judgment rendered by him of the proceedings in the action before the judgment, of the execution and return, if any, subscribed by the justice or judge and verified in the manner prescribed in the next section, is admissible evidence of the facts stated therein. \ Sec. 334. Certificate attached to transcript of justice's record. There must be attached to the transcript a certificate of the justice or
district judge that the transcript is in all respects correct, and that he had jurisdiction of the action, and also a further certificate of the
clerk of the county, if within the United States, or a State or Territory thereof, under the seal of the county, certifying that the person subscribing the transcript was at the date of the judgment a justice of the peace in the said county, and that the signature is genuine. Such judgment, proceedings, and jurisdiction may also be proved by the justice or judge himself, on the production of his docket, or by a copy of the judgment and his oral examination as a witness.
Sec. 335. What certificate of copy of writing must state.AVhen-ever a copy of a writing is certified for the purpose of evidence, the certificate must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The certificate must be under the official seal of the certifying officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. ^_
Sec. 336. Historical works, books of science, and maps.Historical works, books of science, or art, published maps or charts, when
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made by persons indifferent between the parties, are prima facie evidence of facts of general notoriety and interest.
Sec. 337. Secondary evidence of the contents of a lost writing. An original writing must be produced and proved except as otherwise provided. If it has been lost, proof of the loss must first be made before evidence can be given of its contents. Upon such proof being made, together with proof of the due execution of the writing, its contents may be proved by a copy or by a recital of its contents in some authentic document, or by the recollection of a witness.
Sec. 338. Secondary evidence of writing in custody of adverse party.If the writing be in the custody of the adverse party, he must have reasonable notice to produce it. If he then fail to do so, the contents of the writing may be proved as in the case of its loss. But the notice to produce it is not necessary where the writing is itself a notice, or where it has been wrongfully obtained or withheld by
the adverse party.
Sec. 339. Party calling for writing not bound to offer it as evidence.Though a writing called for by one party is produced by the other, and is thereupon inspected by the party calling for it, he is not obliged to produce it as evidence in the case.
Sec. 340. Proof of writing.Any writing may be proved, either;
1. By anyone who saw the writing executed; or
2. By evidence of the genuineness of the handwriting of the maker; or
3. By a subscribing witness.
Sec. 341. Denial of execution by subscribing witness.If the subscribing witness denies, or does not recollect the execution of the writing, its execution may still be proved by other evidence.
Sec. 342. When other evidence of the execution of writing need not be produced.Where a writing is more than thirty years old, and evidence is given that the party against whom the writing is offered has at any time admitted its execution, or where the writing is one produced from the custody of the adverse party, and has been acted upon by him as genuine, no other evidence of the execution need be given.
Sec. 343. Proof of handwriting.The handwriting of a person may be proved by anyone who believes it to be his, and has seen him write, or has seen writing purporting to be his, upon which he has acted, or been charged, and he has thus acquired knowledge of his handwriting. Evidence respecting the handwriting may also be given by comparison, made by the court, with writings admitted ov treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. Where the writing is more than thirty years old, the comparisons may be made with writings purporting to be genuine and generally respected and
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acted upon as such by persons having an interest and knowing the fact.
Sec 344. Writings of a deceased person.The entries and other writings of a deceased person, made at or near the time of the transaction, and in a position to know the facts stated therein, may be read as a prima facie evidence of the facts therein stated, in the following cases:
1. When the entry was made against the interests of the person making it;
2. When it was made in a professional capacity, and in the ordinary course of professional conduct;
3. When it was made in the performance of a duty specially enjoined by law, or in the course of the ordinary and regular duties of the person making the entry.
Sec. 345. What are original entries.When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are equally regarded as originals.
Sec. 346. Original records not to be removed from office.The record of a conveyance of real property, or any other record, transcript of which is admissible in evidence, must not be removed from the office at which it is kept, except upon order of a court, in cases where the inspection of the record is shown to be essential to the just determination of the cause or action or proceeding pending, or where the court is held in the same building with such office.
Sec. 347. Proof of real-estate titles.Every instrument conveying or affecting real property situated in the Canal Zone acknowledged or proved and certified as provided by law, may, together with the certificate of the acknowledgment or proof, be read in evidence in an action or proceeding without further proof; also the original record of such conve}'ance or instrument thus acknowledged or proved, or a certified copy of the record of such conveyance or instrument thus acknowledged or proved, may be read in evidence with the like effect as the original instrument, without further proof.
Sec. 348. View of an object by the court.Whenever an object has such a relation to the fact in dispute as to afford reasonable grounds of belief respecting it, such object may be exhibited to the court, or its exist (Mice, situation, or character proved by witnesses, as the court in its discretion may determine.
Sec. 349. Conclusive presumption.The following presumptions or deductions, which the law expressly directs to be made from particular facts, are deemed conclusive:
1. Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he can not, in any litigation
76 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.
arising out of such declaration, act, or omission, be permitted to falsify it;
2. The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them;
3. The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate, if not born within the one hundred and eighty days immediately succeeding the marriage, or after the expiration of three hundred days following its dissolution;
4. The judgment or order of a court, when declared by the court to be conclusive.
Sec. 350. Disputable presumptions.-The following presumptions are satisfactory, if uncontradicted, but they are disputable, and may be contradicted by other evidence:
1. That a person is innocent of crime or wrong;
2. That an unlawful act was done with an unlawful intent;
3. That a person intends the ordinary consequence of his voluntary act;
4. That a person takes ordinary care of his own concerns;
5. That evidence willfully suppressed would be adverse if produced ;
6. That money paid by one to another was due to the latter;
7. That a thing delivered by one to another belonged to the latter;
8. That an obligation delivered up to the debtor has been paid;
9. That former rent or installments had been paid when a receipt for the later ones is produced;
10. That things which a person possesses are owned by him;
11. That a person is the owner of property from exercising acts of ownership over it, or from common reputation of his ownership;
12. That a person in possession of an order on himself for payment of money, or the delivery of anything, has paid the money or delivered the thing accordingly;
13. That a person acting in a public office was regularly appointed or elected to it;
14. That official duty has been regularly performed;
15. That a court, or judge acting as such, whether in the Canal Zone or elsewhere, was acting in the lawful exercise of his jurisdiction ;
16. That all the matters within an issue in an action were laid before the court and passed upon by it; and in like manner that all matters within a submission to arbitration were laid before the arbitrators and passed upon by them;
17. That private transactions have been fair and regular;
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18. That the ordinary course of business has been followed; 10. That a promissory note or bill of exchange was given or indorsed for a sufficient consideration;
20. That an indorsement of a negotiable promissory note or bill of exchange was made after the time and at the place of making the
note or bill;
21. That a writing is duly dated;
22. That a letter duly directed and mailed was received in the regular course of the mail;
23. Identity of person from identity of name;
24. That a person not heard from in seven years is dead;
25. That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact;
2G. That things have happened according to the ordinary course of nature and the ordinary habits of life;
27. That persons acting as copartners have entered into a contract of copartnership;
28. That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage;
29. That a child born in lawful wedlock, there being no divorce, absolute or from bed and board, is legitimate:
30. That a thing once proved to exist continues as long as is usual with things of that nature;
31. That the law has been obeyed;
32. That a document or writing more than thirty years old is genuine, when the same has since been generally acted upon as genuine by persons having an interest in the question, and its custody has been satisfactorily explained;
33. That a printed or published book, purporting to be printed or published by public authority was so printed or published;
34. That a printed or published book, purporting to contain reports of cases adjudged in tribunals in the State or country where the book is published, contains correct reports of such cases;
35. That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed to him when such presumption is necessary to perfect the title of such person or his
. successor in interest;
36. That there was a good and sufficient consideration for a written contract;
37. When two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is presumed from the probabilities resulting from the strength and age of the sexes, according to the following rules:
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First, If both those who have perished were under the age of fifteen years, the older is presumed to have survived;
Second. If both were above the age of sixty, the younger is presumed to have survived;
Third. If one be under fifteen and the other above sixty, the former is presumed to have survived;
Fourth. If both be over fifteen and under sixty, and the sexes be different, the male is presumed to have survived. If the sexes be the same, then the older;
Fifth. If one be under fifteen or over sixty, and the other between those ages, the latter is presumed to have survived.
38. That a writing written merely as a receipt or acknowledgment is true, but the same, if produced in evidence, may be shown to have been given by mistake, or procured by fraud, or explained as to its legal effect.
Sec. 351. Agreements invalid unless made in writing.In the following cases an agreement hereafter made shall be unenforceable by action unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement can not be received without the writing, or secondary evidence of its contents :
1. An agreement that by its terms is not to be performed within a year from the making thereof;
2. A special promise to answer for the debt, default, or miscarriage of another;
3. An agreement made upon the consideration of marriage, other than a mutual promise to marry;
4. An agreement for the sale of goods, chattels, or things in action, at a price not less than fifty dollars, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them of such things in action, or pay at the time some part of the purchase money; but when a sale is made by auction and entry is made by the auctioneer in his sales book, at the time of the sale, of the amount of property sold, terms of sale, price, names of the purchasers, and person on whose account the sale is made, it is a sufficient memorandum;
5. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein, and such agreement, if made by the agent of the party sought to be charged, is invalid unless the authority of the agent be in writing and subscribed by the party sought to be charged;
C>. No evidence is admissible to charge a person upon a representation as to the credit of a third person, unless such representation, or some memorandum thereof, be in writing, and either subscribed by or in the handwriting of the party"to be charged.
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Sec. 352. Alteration in writing.The party producing a writing as genuine which has been altered, and appears to have been altered after its execution, in a part material to the question in dispute, must account for the appearance of the alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of parties affected by it or otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he do that he may
give the writing in evidence, but not otherwise.
Sec. 353. Lead hi g questions.A question which suggests to the witness the answer which the examining party desires is a leading question. On direct examination, leading questions are not allowed, except in the sound discretion of the court under special circumstances making it appear that the interest of justice require it.
Sec 354. Witness may refer to memorandum.A witness may be allowed to refresh his memory respecting a fact, by anything written by himself or under his direction at the time when the fact occurred, or immediatelv thereafter, or at any other time when the fact was fresh in his meniorv and he knew that the same was correctly stated
in the writing; but in such case the writing must be produced and may be seen by the adverse party, who may, if he choose, cross-examine the witness upon it, and may read it in evidence.
So, also, a witness may testify from such writing, though he retain no recollection of the particular facts, if he is able to swear that the writing correctly stated the transaction when made: but such evidence must be received with caution.
Sec 355. Leading questions on cross-examination.The opposite party may cross-examine a witness to any facts stated in his direct examination, or connected therewith, and in so doing he may put leading questions. But, if he examine him as to other matters, such examination is to be subject to the same rules as a direct examination.
Sec 356. Party may not impeach his own witness.The party producing a witness is not allowed to impeach his credit by evidence of a bad character, but may contradict him by other evidence, and in the discretion of the court, in order to show that the witness has misled him into calling him to the stand, may also show that he has made at other times statements inconsistent with present testimony, and may, if the court permit, cross-examine said witness as to such conflicting statements.
Sec 357. Recalling witness.After the examination of a witness by both sides has been concluded, the witness can not be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require.
Sec 358. Impeaching witness.A witness may be impeached by the party against whom he was called, by contradictory evidence, or
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by evidence that his general reputation for truth, honesty, or integrity is bad; but not by evidence, of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of a crime.
Sec. 359. Impeachment of witness by inconsistent statements.A witness may also be impeached by evidence that he has made at other times statements inconsistent with his present testimony; but before this can be done, the statement must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and, if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them.
Sec. 360. Evidence of good character of the witness.Evidence of the good character of the party or witness is not admissible in a civil action until the character of such party or witness has been impeached, or unless the issue involved is character.
Sec. 361. Right of opposite party to inspect writing shown to a witness.Whenever a writing is shown to a witness, it may be inspected by the opposite party.
Sec. 362. Offer to compromise.An offer to compromise is not an admission that anything is due, and is not admissible in evidence.
Sec. 363. Unaccepted offer in writing equivalent to tender.An offer in writing to pay a particular sum of money, or to deliver a written instrument or specific personal property is, if rejected, equivalent to the actual production and tender of the money, instrument, or property. .
Affidavits and depositions.
Sec. 364. Use of affidavit.An affidavit is a written declaration under oath, made without notice to the adverse party, and may be used to verify a pleading, or paper in a special proceeding, to prove the service of a summons, notice, or other paper, in an action or special proceeding to obtain a provisional remedy, examination of witnesses, or stay of proceedings, or upon a motion, and in any other case specially permitted by any other provision of this Code. Evidence of the publication of a document, or notice required by law, or by an order of a court or judge, to be published in a newspaper, may be given by the affidavit of the printer of the newspaper, or his foreman, or principal clerk, annexed to a copy of the document or notice specifying the times when and the paper in which the publication was made. If such affidavit be made in an action or special proceeding pending in a court, it may be filed with the court or the clerk thereof. In such case the original affidavit or a copy thereof, certi-
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fied by the judge of the court or the clerk having it in custody, is prima facie evidence of the facts stated therein.
Sec. 365. Who may administer oath for affidavit to be used in the Zone.An affidavit to be used before any court, judge, or officer of the Canal Zone, may be taken before any judge of any court, or any
notary public in the Zone.
Sec. 366. Who may administer oath for affidavit taken in the United States.An affidavit taken in the United States, or in any State or Territory thereof, to be used in the Canal Zone, may be taken before a commissioner, appointed by the Chief Executive of the Canal Zone, to take affidavits and depositions in the United States, or in such State or Territory, or before any notary public in the United States, or in such State or Territory, or before any judge, or clerk of a court of record having a seal.
Sec. 367. Affidavit taken in a foreign country.An affidavit taken in a foreign country, to be used in the Canal Zone, may be taken before an ambassador, minister, consul, or vice-consul, or consular agent of the United States, or before anj^ judge of a court of record having a seal, in any foreign country.
Sec. 368. Certification of affidavit taken in the United States or a foreign country.When an affidavit is taken before a judge or a court in the United States, or in any State or Territory thereof, or in a foreign country, the genuineness of the signature of the judge, the existence of the court, and the fact that such judge is a member thereof must be certified by the clerk of the court under the seal thereof.
Sec. 369. Depositions may be used.In all cases other than those expressly provided in this Code, where a written declaration under oath is used, it must be a deposition, as prescribed by this Code.
Sec. 370. Testimony of a witness out of the Zone may be taken by deposition.Testimony of a witness out of the Canal Zone may be taken by deposition in an action at any time after the service of a summons or the appearance of the defendant; and, in a special proceeding, at any time after a question of fact has arisen therein.
Sec. 371. Depositions of a witness within the Canal Zone.The testimony of a witness in the Canal Zone, may be taken by deposition, in an action, any time after the service of the summons or the appearance of the defendant, and, in a special proceeding after the question of fact has arisen therein, in the following cases:
1. When the witness is a party to the action or proceeding, or an officer, or a member of a corporation which is a party to the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended;
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2. When the witness is about to leave the Canal Zone and will probably continue absent when the testimony is required;
3. When the witness otherwise liable to attend the trial is nevertheless too ill or infirm to attend;
4. When the testimony is required upon a motion, or in any other case, when the oral examination of a witness is not required;
5. When the witness is the only one who can establish facts or a fact material to the issue: Provided, The deposition of such witness shall not be used if his presence can be procured at the time of the trial of the cause.
Sec. 372. How deposition of a witness out of the Canal Zone may
be taken.The deposition of a witness out of the Canal Zone may be taken upon a commission issued from the court in which the action or proceeding is pending, under the seal of the court, upon an order of the court, or a judge or justice thereof, on the application of either party, upon five days' previous notice to the other. If the court be that of a district judge, the commission shall have attached to it a certificate under seal by the clerk of the Circuit Court of the circuit in which the court is held, to the effect that the person issuing the same was an acting district judge at the date of the commission. If issued to any place within the United States, or any State or Territory thereof, it may be directed to a person agreed upon by the parties, or, if they do not agree, to any justice of the peace, or notary public, or to any Federal or State judge, or to any commissioner authorized by the laws of the United States to administer oaths and write depositions. If issued to any country out of the United States, or the territories thereof, it may be directed to a minister, ambassador, consul, vice-consul, or consular agent of the United States in such country, or to any person agreed upon by the parties.
Sec. 373. Interrogatories may be annexed to the commission. Such proper interrogatories, direct and cross, as the respective parties may prepare, to be settled, if the parties disagree as to their form, by the judge or officer granting the order for the commission, at a day fixed in the order, may be annexed to the commission; or, when the parties agree to that mode, the examination may be oral and without written interrogatories.
Sec. 374. Duties of official taking the deposition.The commission must authorize the commissioner to administer an oath to the witness and to take his deposition in answer to the interrogatories, or, when the examination is to be without interrogatories, in answer to oral questions, in respect to the question in dispute, and to certify the deposition to the court, in a sealed envelope directed to the clerk or other person designated or agreed upon, and forwarded to him by mail or other channel of conveyance.
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Sec. 375. Trial not necessarily delayed pending taking of deposition.A trial or other proceeding must not be postponed by reason of a commission not returned, except upon evidence satisfactory to the court that the testimony of the witness is necessary, and that proper diligence has been used to obtain it.
Sec. 376. Such deposition may be used by either party.The deposition mentioned in the four preceding sections may be used by either party on the trial or other proceeding against any other party giving or receiving a notice, subject to all just exceptions.
Sec. 377. Taking depositions within the Canal Zone.Either party
may have the deposition taken of a witness in the Canal Zone in
either of the cases mentioned, before any judge, or notary public,
on serving on the adverse party previous notice of the time and place
of examination, together with a copy of an* affidavit showing that
the case is within such section. Such notice must be served at least
two days before the time is fixed for taking the deposition, and must
in all cases give the party reasonable time after notice to be present
at the taking thereof, and without a notice of such reasonable length
of time the deposition shall not be admissible in evidence The court
shall determine, if the deposition is offered in evidence, whether a reasonable notice of taking has been given.
Sec. 378. Manner of taking, certifying, and transmitting depositions.Either party may attend the examination and put such questions, direct and cross, as may be proper. The deposition, when completed, must be carefully read to the witness and corrected by him in any particular, if desired; it must then be subscribed by the witness, certified by the judge or officer taking the deposition, inclosed in an envelope or wrapper, sealed, and directed to the clerk of the court in which the action is pending, or to such person as the parties in writing may agree upon, and either delivered by the judge or officer to the clerk or such person, or transmitted through the mail, or by some other private conveyance, and thereupon such deposition may be used by either party upon the trial or other proceedings against any party giving or receiving a notice, subject to all legal exceptions, which may be taken when the deposition is read; except that objections to the form of a question which might be corrected if the adversary party's attention were invited thereto at the time, shall be deemed to have been waived unless noted at the time the deposition is taken. The deposition thus taken may be also read in case of the death of the witness; but the deposition may be excluded if the court finds that the taking was in any respect unfair or fraudulent.
Sec. 379. A stenographer may be employed in taking deposition. The deposition shall be written by the judge or officer taking it, or
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by some disinterested person in the presence and under the direction of the judge or officer. Such disinterested person may be a stenographer and may take the deposition in shorthand, but must forthwith reproduce it in longhand, and then it shall be subscribed by him and certified, inclosed and forwarded as provided.
Sec. 380. Deposition may be read at any stage of action.When a deposition has been once taken, it may be read by either party in any stage of the same action or proceeding where the reception of evidence is proper, or in any other action between the same parties upon the same subject-matter, and is then deemed the evidence of the party reading it.
Sec. 381. Deposition to be used outside of the Canal Zone.Any party to an action or special proceeding in a court, or before a judge of the United States, or any State or Territory thereof, or of any foreign country, may obtain the testimony of a witness residing in the Canal Zone, to be used in such action or proceeding, in the cases mentioned in the next two sections.
Sec. 382. Summoning witnesses to appear before commissioner. If a commission to take such testimony has been issued from the court, or a judge thereof, before which such action or proceeding is pending, on producing the commission to any judge in the Canal Zone, with an affidavit satisfactory to him of the materiality of the testimony, he may issue a subpoena to the witness, requiring him to appear and testify before the commissioner named in the commission, at a speci-.fied time and place.
Sec. 383. When com/mission has not been issued.If a commission has not been issued, and it is made to appear to any judge by an affidavit satisfactory to him:
1. That the testimony of the witness is material to either party;
2. That a commission to take the testimony of such witness has not been issued;
3. That according to the law of the State or country where the action or special proceeding is pending, the deposition of a witness
s taken under such circumstances and before such judge or justice, will be received in the action or proceeding; he must issue his subpoena requiring the witness to appear and testify before him, at a specified time and place.
Sec. 384. Taking the deposition.Upon the appearance of the witness, the judge or justice of the peace, or commissioner, as the case may be, must cause his testimony to be taken in writing, and must certify and transmit the same to the court or judge before whom the action or proceeding is pending, in such manner as the law of that State or country requires.
Sec. 385. Oath of witness giving deposition.Every witness giving a deposition shall take an oath that the deposition by him subscribed
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contains the truth, the whole truth, and nothing but the truth, and the authority taking the deposition shall certify that such oath has been administered.
Sec. 386. Perpetuation of testimony.The testimony of any witness may be taken for perpetual preservation, when the party desiring to take it shall present to any judge of the Supreme Court, or Circuit Court, a petition verified by oath of the applicant, stating:
1. That the applicant expects to be a party to an action in a court in the Canal Zone, and giving the names of the persons who he expects will be adverse parties; or
2. That the proof of some fact is necessary to perfect the title of property in which he is interested, or to establish marriage, descent, heirship, or any other matter which may hereafter become material to establish, though no action may at the time be anticipated, or, if anticipated, the names of the parties thereto may not be known; and
3. The name of the witness to be examined, his place of residence, and a general statement of facts expected to be proved.
Sec. 387. Order of judge for perpetuation of testimony.The judge to whom such petition is presented shall make an order allowing the examination, before himself, and prescribing the time and place for taking the testimony, and the notice to be given, which notice, if the parties expectant are known to reside within the Canal Zone, must be personally served, or, if unknown, must be served on the clerk of the Circuit Court where the property to be affected by such evidence is situated, and by publication thereof in some newspaper of general circulation on the Isthmus where the property is situated, to be designated by the judge, for three successive weeks prior to the time of taking the testimony.
Sec. 388. Taking the testimony.At the time and place designated in the notice provided in the last preceding section the judge shall require proof that the order of notice has been complied with, and certify that fact, and shall thereupon proceed to take the deposition named in the order of the judge; or, if more than one witness is thus named, such of them as appear before him at the time designated, but the taking of the same may be continued from time to time.
Sec. 389. Manner of conducting examination.The examination must be by question and answer. The deposition when completed, must be carefully read to and subscribed by the witness, and certified by the judge taking the same, who shall also certify that the witness was duly sworn, and the deposition shall then, together with the petition and order of the judge for taking the testimony, be sealed up and delivered or transmitted to the clerk of the Circuit Court of the circuit in which the applicant resides. The clerk shall indorse on the deposition the date when the same with its accompanying papers was
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filed in his office, and shall securely retain the same, for the use hereinafter provided.
Any party having a legal interest in the subject-matter of the deposition shall be entitled to receive from the clerk of the court having the lawful custody thereof a certified copy of the deposition, upon payment of lawful fees for making and certifying such copy.
Sec. 390. Papers filed prima facie evidence of regularity.The petition and order, and certificate of service, and papers filed by the judge as provided in the last preceding section, are prima facie evidence of the facts stated therein, to show compliance with the provisions of the four preceding sections.
Sec. 391. Use of such deposition.If a trial be had between the parties named in the petition as parties expectant, or their successors in interest, or between any parties wherein it may be material to establish the facts which such deposition proves or tends to prove and whose interest was unknown to the party taking the deposition at the time of taking, upon proof that the witnesses whose depositions have thus been taken are dead or insane, or can not be found, or are unable, by reason of age or other infirmity, to give their testimony in court, the depositions, or certified copies thereof, may be used by either party, subject to all legal objections.
Sec. 392. Effect of testimony so taken.The deposition so taken and read in evidence shall have the same effect as the oral testimony of the witness. Any objection which would be proper to take if the witness were testifying orally may be taken to the witness or to any part of his deposition when the same is read upon the trial.
venue of actions.
Sec. 393. Venue of actions.Actions to confirm titles to real estate, or to secure a partition of real estate, or to cancel clouds, or remove doubts from the titles of real estate, or to obtain possession of real estate, or to recover damages for injuries to real estate, or to establish any interest, right, or title in or to real estate, or actions for the condemnation of real estate for public use, shall be brought in the judicial circuit where the land, or some part thereof, is situated; actions against executors, administrators, and guardians touching the performance of their official duties, and actions for account and settlement by them, and actions for the distribution of the estates of deceased persons among the heirs and distributees, and actions for the payment of legacies, shall be brought in the circuit in which'the will was admitted to probate, or letters of administration were granted, or the guardian was appointed. And all actions not herein
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otherwise provided for may be brought in any circuit where the defendant or necessary party defendant may reside or be found, or in any circuit where the plaintiff or one of the plaintiffs resides, at the election of the plaintiff, except in cases where other special provision is made in this Code. In case neither the plaintiff nor the defendant resides within the Canal Zone and the action is brought to seize or obtain title to property of the defendant within the Canal Zone, the action shall be brought in the circuit where the property which the plaintiff seeks to seize or to obtain title to is situated or is found: Provided, That in an action for the foreclosure of a mortgage upon real estate, when the service upon the defendant is not personal, but is by publication, in accordance with law, the action must be brought in the circuit where the land lies. And in all cases process may issue from the court in which an action or special proceeding is pending, to be in force in any circuit to bring in defendants and to enforce all orders and decrees of the court. The failure of the defendant to object to the venue of the action at the time of entering his appearance in the action shall be deemed a waiver on his part of all objection to the place or tribunal in which the action is brought, except in the actions referred to in this section relating to real estate, and actions against executors, administrators, and guardians, and for the distribution of estates and payment of legacies.
proceedings when judge is disqualified or disabled.
Sec. 394. Proceeding when judge disqualified.Whenever a judge in a Circuit Court is disqualified, under the provisions of the Code, to sit in any action, the judge shall immediately notify the Chief Justice of the Supreme Court of his disqualification, and thereupon the judges of the Supreme Court shall designate some other judge of a Circuit Court, to hold such a term of court, or such part thereof as may be necessary where such action may be pending, and to preside at the trial thereof, and the judge so designated shall in all respects have the same power in the action as though he had been the regular judge whose duty it was to preside in the court. But if the judges of the Supreme Court shall certify to the Chief Executive that it is inconvenient to assign any other judge to hold a term, or to try the action, the Chief Executive shall thereupon commission some person learned in the law to attend and hold said court, with the same power as though he had been the regular judge thereof. Any special judge ordered under the provisions of this section, shall receive a compensation of fifteen dollars, United States money, per day, and necessary expenses for the time actually employed in the trial.
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Sec. 395. Proceeding where judge is physically disabled.When a judge of a Circuit Court is unable, from sickness or other physical disability, to attend and hold any court, at the time and place required by law, temporary provision for a judge to hold the term of court shall be made, as provided in the preceding section.
Sec. 396. Witnesses.The testimony of all witnesses, except such as has been taken in writing in the form of depositions as provided by law, shall be given on oath in open court orally, and each witness may be orally cross-examined by the adverse party or his counsel with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. The court shall be liberal in allowing cross-examination, but shall have the power to restrict it so as to confine it to the purposes last above specified and to prevent irrelevant or insulting interrogatories.
Sec. 397. Qualification of witness.All persons, without exception, otherwise than as specified in the next section, who, having organs of sense, can perceive, and, perceiving, make known their perceptions to others, may be witnesses. Neither the parties nor other persons, who have an interest in the event of an action or proceeding shall be excluded; nor shall those who have been convicted of crime; nor shall any person be excluded on account of his opinion on matters of religious belief. But in every case the credibility of the witness may be drawn in question by competent evidence, and the court in weighing the testimony of anv witness shall make due allowance for the interest or credibility of the witness, as the facts disclosed may require.
Sec. 398. Incompetency of witnesses.The following persons can not be witnesses:
1. Those who are of unsound mind at the time of their production for examination, to such degree as to be incapable of perceiving and making known their perceptions to others;
2. Children who appear to the court to be of such tender age and inferior capacity as to be incapable of receiving the just impressions of the facts respecting which they are examined, or of relating them truly;
3. A husband cannot be examined for or against his wife without her consent; nor a wife for or against her husband without his consent; nor can either, during the marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not