Citation
Translation of the Law of civil procedure for Cuba and Porto Rico

Material Information

Title:
Translation of the Law of civil procedure for Cuba and Porto Rico with annotations, explanatory notes, and amendments made since the American occupation
Creator:
United States -- Bureau of Insular Affairs
Place of Publication:
Washington, D.C.
Publisher:
U.S. G.P.O.
Publication Date:
Language:
English
Spanish
Physical Description:
1 online resource (xi, 544 pages) : ;

Subjects

Subjects / Keywords:
Civil procedure -- Cuba ( lcsh )
Civil procedure -- Puerto Rico ( lcsh )
Civil procedure ( fast )
Cuba ( fast )
Puerto Rico ( fast )
Genre:
legislation ( marcgt )
federal government publication ( marcgt )
non-fiction ( marcgt )

Notes

System Details:
Master and use copy. Digital master created according to Benchmark for Faithful Digital Reproductions of Monographs and Serials, Version 1. Digital Library Federation, December 2002.
General Note:
Title from PDF t.p. (LLMC Digital, viewed on Oct. 20, 2010).
Statement of Responsibility:
War department, Division of Insular Affairs, January, 1901.

Record Information

Source Institution:
University of Virginia Law Library
Holding Location:
University of Virginia Law Library
Rights Management:
The University of Florida George A. Smathers Libraries respect the intellectual property rights of others and do not claim any copyright interest in this item. This item may be protected by copyright but is made available here under a claim of fair use (17 U.S.C. §107) for non-profit research and educational purposes. Users of this work have responsibility for determining copyright status prior to reusing, publishing or reproducing this item for purposes other than what is allowed by fair use or other copyright exemptions. Any reuse of this item in excess of fair use or other copyright exemptions requires permission of the copyright holder. The Smathers Libraries would like to learn more about this item and invite individuals or organizations to contact Digital Services (UFDC@uflib.ufl.edu) with any additional information they can provide.
Resource Identifier:
612941040 ( OCLC )
ocn612941040
08243 ( LLMC )
Classification:
KGN2574 1901 ( lcc )
349.7291 Sp1 ( ddc )

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This item has the following downloads:

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Full Text

















This volume was donated to LLMC to enrich its on-line offerings and
for purposes of long-term preservation by

University of Virginia Law Library






TRANSLATION




OF THE





LAW OF CIVIL PROCEDURE



FOR


CUBA AND PORTO RIC0,



W ITH



ANNOTATIONS, EXPLANATORY NOTES, AND AMENDMENTS
MADE SINCE THE AMERICAN OCCUPATION.


WAR DEPARTMENT,
DIVISION OF INSULAR AFFAIRS,
JAXNIARY, 1901.


/.i-

\oA\


WASHINGTON:
GOVERNMENT PRINTING OFFICE.
1901.


















97088




I




CA-.















CONTENTS.


Page.
BooK I.-Provisions common to contentious and voluntary jurisdiction ------ 1
TITLE I.-Appearance in an action ---------------------- --------------- 1
Section 1. Litigants, solicitors, and attorneys ----------------------- 1
Section II. Legal aid to the poor ---------------------------------- 7
TITLE II.-Competeney and questions of jurisdiction --------------------15
Section 1. General provisions ------------------------------------- 15
Section II. Rules to determine competency ------------------------ 16
Section III. Questions of competency ------------------------------ 24
Section IV. Remedy of complaint against administrative authorities- 31
TITLE III.-Applications to civil courts for modification of actions of ecclesiastical courts --------------------------------------------------- 32
TITLE IV.-Consolidations ------------------------------------------- 36
Section I. Consolidation of actions -------------------------------- 36
Section II. Consolidation of records of proceedings ----------------- 37
TITLE V.-Challenges ------------------------------------------------ 42
Section I. General provisions ----- ------------------------------- 42
Section II. Challenge of justices, judges of first instance, and assessors- 43 Section III. Challenge of municipal judges ------------------------- 47
Section IV. Challenge of subordinate officials of superior and inferior
courts ------------------------.------------------------------- 49
TITLE VI.-Judicial procedure and periods of time --------------------- 52
Section I. Judicial proceedings in general -------------------------- 52
Section II. Legal working days and hours ------------------------- 53
Section III. Notifications, citations, summonses, and requisitions ..-- 54 Section IV. Service of notifications in court room -----_------------ 57
Section V. Letters requisitorial, letters rogatory, letters mandatory,
and mandates ------------------------------------------------- 58
Section VI. Judicial periods of time, compulsory process, and defaults. 61
TITLE VII.-Dispatch, hearing, voting upon, and decision of judicial
matters -----------_----.----------------------------------------- 64
Section I. Ordinary dispatch and hearing ------------------------- 64
Section IL Justices "ponentes" -- -------------------------------- 67
Section III. Voting and decisions in actions- .--------------------- 69
Section IV. Manner of adjusting disagreements --------------------- 71
TITLE VIII. Manner and form in which judicial decisions shall be rendered ----------------------------------------------------------- 72
Section I. Judgments -------------------------------------------- 72
Section II. Form in which judicial resolutions shall be rendered --- 74
TITLE IX. -Remedies against judicial resolutions and their effects ------- 76
Section I. Remedies against resolutions of judges of first instance .... 76 Section II. Remedies against resolutions of audiencias -------------- 81
Section III. Remedies against decisions of the Supreme Court ------- 82 Section IV. Provisions common to superior and inferior courts ------ 82 III





CONTENTS.


BooK I-Continued. Page.
TITLE X.-Extinetion of actions -------------------------------------- 83
TITLE XI.-Taxation of costs ----------------------------------------- 85
� TITLE XII.-Distribution of business ----------------------------- 87
TITLE XIII.-Disciplinary corrections - ---------------- ----------- 88
BoOK I.-Contentious jurisdiction ------------------------------------- - 93
TITLE 1-.Proceedings to avoid litigation ------------------------------ 93
TITLE II.-Declaratory actions ----------------------------------- --- 98
Chapter I. Provisions common to declaratory actions -------------- 98
Section I. Rules to determine the proper action ---------------- 98
Section IT. Preparatory proceedings -------------------------- 101
Section II1. Presentation of documents ----------------------- 103
Section IV. Copies of instruments and documents and their purp oses --- ---- ------ ----------------- -------- ------ ---------- 106
Chapter IT. Declaratory actions of greater import ------------------- 107
Section I. Complaint and summons --------------------------- 107
Section II. Dilatory exceptions .------------------------------ 109
Section III. Answers, counterclaims, replications, and rejoinders- 112
Section IV. Admission of evidence, time within which to be
taken, and general provisions relating thereto ---------------- 114
Section V. Means of proof ----------------------------------- 119
1. Confession in court ---------------------------------- 119
2. Public documents ----------------------------------122
3. Private documents, correspondence, and books of merchants ---------------------------------------------- 127
4. Comparison of handwriting --------------------------- 129
5. Opinion of experts ----------------------------------- 130
6. Judicial inspection ------------------------------------ 134
7. Evidence of witnesses --------------------------------- 135
8. Challenge of witnesses ------------------------------- 139
Section VI. Final pleadings, hearings, and judgments -----------141
Chapter 11. Actions of lesser import ----------------------------- 143
Chapter IV. Oral actions ----------------------------------- --- 148
TITLE III.-Incidental issues --------------------------------------- 152
TITLE IV.-Proceedings in default ------------------------------------ 155
TITLE V.-Settlements by arbitrators and amicable compounders -------- 160
Section I. Settlements by arbitrators ----------------------------- 160
Section II. Settlements by amicable compounders ------------------ 165
TITLE YI.-The second instance ------------------------------------- 168
Section I. General provisions ----------------------------------- 168
Section II. Appeals from final judgments rendered in actions of
greater import ----------------------------------------------- 171
Section III. Appeals from interlocutory judgments and rulings and in
actions other than those of greater import ----------------------- 176
TITLE VII.-The remedy of civil liability against judges and associate A
justices ----------------------------------------------------------- 4178
TITLE VIII.-Execution of judgments ------------------------------- 181
Section I. Judgments rendered by Spanish courts and judges ------- 181 Section II. Judgments rendered by foreign courts ------------------ 186
TITLE IX.-Intestate proceedings ------------------------------------- 187
Section I. Provisional measures ---------------------------------- 187
Section II. Designation of heirs ab intestato -----------------------191
Section III. Intestate proceedings -------------------------------- 195
Section IV. Administration of intestate successions .---------------- 196





CONTENTS.


Boon II-Continued. Page.
TITLE X.-Testamentary proceedings -------------------------------- 201
Section I. General provisions ------------------------------------ 201
Section II. Voluntary testamentary proceedings -------------------- 204
Section III. Necessary testamentary proceedings ------------------ 211
Section IV. Administration of testate inheritances ------------------ 211
TITLE XI.-Adjudication of property to persons not designated by name- 212 TITLE XII.-Insolvency proceedings --------- ------------------------ 217
Section I. Composition and respite ------------------------------- 217
Section II. Declaration of insolvency ----------------------------- 222
Section III. Proceedings consequent upon a declaration of insolvency- 224 Section IV. Citation of creditors and appointment of trustees -------- 228
Section V. First record Administration of the estate of the insolvent --------------.------------------------------------------. 234
Section VI. Second separate record-Acknowledgment, classification,
and payment of credits ---------------------------------------- 239
1. Acknowledgment of credits -------------------------------- 239
2. Classification of credits ------------------------------------ 242
3. Delay and its effects ---------------------------------------- 245
4. Payment of credits ---------------------------------------- 247
Section VII. Third separate record-Classification of insolvency proceedings ---------------- 7 --------------------------------------- 249
Section VIII. Settlements between creditors and the insolvent ------- 250 Section IX. -Maintenance of the insolvent ---------------------- 252
TTLyE XIII.-Proceedings in bankruptcy ----------------------------- 253
Section I. Declaration of bankruptcy ------------------------------ 255
Section II. Administration of the bankruptcy ---------------------- 265
Section III. Retroactive effects of bankruptcy --------------------- 268
Section IV. Examination, classification, and payment of credits
against the estate of the bankrupt ------------------------------ 271
Section V. Classification of the bankruptcy and discharge of the
bankrupt ----------------------------------------------------- 272
Section VI. Settlements between creditors and the bankrupt.. --------- 275
TrIE XIV.-Provisional seizures and security of property in litigation _ 278
Section I. Provisional seizures ------------------------------------ 278
Section II. Security of property in litigation -------------------- 283
TITLE XV.-Executory actions ........ 285
Section I. Executory process ------------------------------.-.--- 285
Section II. Compulsory process -------- --------------------------. 300
Section III. Intervention ..-------------------------------------- 310
TITLE XVI.-Compulsory process in comme'rcial affairs ----------------- 314
TITLE XVII.-Actions of unlawful detainer --------------------------- 318
Section I. General provisions - ---------------------------------- 318
Section II. Actions of unlawful detainer before municipal courts .... 320 Section III. Actions of unlawful detainer before courts of first instance 323 Section IV. Execution of judgments in actions of unlawful detainer- 325
TITLE XVIII.-Temporary maintenance ------------------------------- 327
TITLE XIX.-Redemptions (RIetractos) ------------------------------- 329
TITLE XX.-Summary proceedings relating to property -----------------331
Section I. Summary proceedings to acquire possession --------------332
Section II. Summary proceedings to retain or recover possession ---- 335 Section III. Summary proceedings based upon a new construction.. -- 337 Section IV. Summary proceedings against ruinous constructions --- 340





CONTENTS.


Boon IT-Continued. Page.
TITLE XXI.-Appeals for annulment of judgment ---------------------- 341
Section I. The court competent to take cognizance of appeals for annulment of judgment --------------------------------------------- 341
Section I. Cases in which appeals for annulment of judgment lie --- 342
Section III. Preparation of the appeal for annulment of judgment by
reason of a violation of law or of legal doctrine ------------------- 351
Section IV. Interposition and admission of an appeal for violation of
law or doctrine --------------------------------------------- 355
Section V. Hearing and decision of appeals admitted for violation of
law or legal doctrine ------------------------------------------- 361
Section VI. Interposition, admission of, and proceedings in an appeal
for breach of form ------------------------------------------- 363
Section VII. Appeals for breach of form and at the same time for violation of law or doctrine --------------------------------------- 366
Section VIII. Appeals from decisions rendered by amicable compounders ----------------------------------------------------- 367
Section IX. Appeals taken by the department of public prosecution.. 367
Section X. Provisions common to all appeals for annulment of judgment --------------------------------------------------------- 368
TITLE XXII.-Appeals for review ------------------------------------ 370
Section I. Cases in which an appeal for review lies ----------------- 370
Section II. Terms within which to interpose an appeal for review --- 371 Section III. Hearing and determination of appeals for review -------- 371 Section IV. Decisions rendered by virtue of appeals for review ------ 372 Boon III.-Voluntary jurisdiction --------------------------------------- 375
PART FIRST --------------------------------------------------------- 375
TITLE I.-General provisions ------------------------------------- 375
TITLE II.-Adoption and arrogation ------------------------------- 377
TITLE III.-Designation of tutors and curators and their appointment- 378
Section I. Designation of tutors ------------------------------ 378
Section II. Appointment of curators ad bona ------------------- 379
Section III. Appointment of curators for incapacitated persons.. 380 Section IV. Designation of curators ad litem -------------------- 381
Section V. Appointment to the office of tutor or curator -------- 382 Section VI. Provisions common to the foregoing sections -------- 384
TITLE IV. -Custody of persons ----------------------------------- 385
TITLE V.-Substitution for the consent of parents, grandparents, or
curators to contract marriage ----------------------------------- 389
TITLE VI.-Manner of elevating a verbal will or codicil to a public
instrument----.----------.------------------------------------ 394
TITLE VII.-Opening of sealed wills and the filing in protocols of testamentary memoranda ----------------.------------------------ 395
TITLE VIII.-Proceedings to dispense with the law- .--------------- 399
TITLE IX.-Investiture of power to appear in court ----------------- 01
TITLE X.-Proceedings to perpetuate testimony --------------_--- 402
TITLE XI.-Alination of the property of minors and incapacitated
persons and transactions with their rights ------------------------ 403
TITLE XII.-Administration of property of absent persons whose
whereabouts are unknown ------------------------------------- 406
TITLE XIII.--Voluntary judicial public sales ---------------------- 409
TITLE XIV.-Judicial possession in cases in which summary proceedings to acquire possession do not lie ---------------------------- 410
TiTLE'XV.-Surveys and demarcations --------------------------- 411




CONTENTS. VII

BooK III-Continued. Page.
PART sEcOND.-Acts of voluntary jurisdiction in commercial matters ----- 413
TITLE I.-General provisions ------------------------------------- 413
TITLE II.-The deposit and examination of commercial effects ------ 415
TITLE III.-Attachment and temporary deposit of the value of bills
of exchange -------------------------------------------------- 417
TITLE IV. -Classification of averages and liquidation of gross average
and contribution thereto ------------------------------------- 418
TITLE V.-Discharge, abandonment, and intervention of merchandise
and bond for cargo ------------------------------------------ 420
TITLE VI.-Sale and mortgage of merchandise in urgent cases and the
repairing of vessels ---------------------------------------------TITLE VII. -Other commercial acts requiring peremptory judicial intervention ------------------------------------------------------- 425
TITLE VIII.-Appointment or arbitrators and experts in insurance
contracts -------------------------------------------------- 426
APPENDIX I.-Changes in and amendments to the Civil Procedure for the Island
of Cuba made by the military government during the years 1899 and 1900_. 431
Order No. 41, April 14, 1899.-Organization of the supreme court -------- 431
Constitution and attributes of the supreme court ------------------- 432
President of supreme court -------------------------------------435
Secretary or chief clerk -------- -------------------------------- 436
Deputy clerks of the court --------------------------------------- 437
Fiscal and assistant fiscales -------------------------------------- 437
Subordinate employees -----.------------------------------------ 438
kAppointment, term of office, priority, possession of office, oaths of
office, and salaries of functionaries, employees, and subordinates of
the supreme court --------------------------------------------- 438
Qualifications and requirements for appointment to office in the
supreme court ------------------------------------------------- 439
Order No. 63, May 25, 1899.- Vtos reservodos -------------------------- 440
Order No. 66, May 31, 1899.-Civil marriages -------------------------- 441
Order No. 69, June 3, 1899.-Extension of time for collection and payment of obligations -----.------------------------------------------ 442
Order No. 92, June 26, 1899.-Appeals for annulment of judgment ------- 444
Order No. 96, June 29, -1899. -Administrative proceedings (contencioso
administrativo) ----------------------- 7 --------------------------- 463
Order No. 114, July 21, 1899.-Putting ordet No. 92 in force ------------- 464
Order No. 135, August 11, 1899.-Time for appearance in court changed. - 464 Order No. 157, September 5, 1899.-Court in full (tribunal en pleno) ------ 465 Order No. 176, September 21, 1899.-Legal holidays -------------------- 465
Order No. 42, January 26, 1900.-Birth certificates relating to marriage -_ 466 Order No. 166, April 23, 1900.-Intervention of solicitors abolished ------ 467 Order No. 141, April 7, 1900.--odifications of Civil Procedure --------- 469
Order No. 192, May 9, 1900.-Appeals for annulment of judgment ------- 470 Order No. 242, June 18, 1900.-Modifications of Civil Procedure --------- 471
Order No. 307, August 8, 1900.-Relating to marriages ------------------473
Order No. 427, October 15, 1900.-Writ of habeas corpus ---------------- 475
Order No. 438, October 21, 1900.-Apntamientos abolished -------------- 483
APPERNDIX II.-Changesinand amendments to the Civil Procedure for the Island
of Porto Rico made by the military government during the years 1898, 1899,
and 1900 -------------------------------------------------------------- 485
Order No. 19, December 2, 1898.-Establishment of the supreme court -- 485




VIII


CONTENTS.


APPENDIX II-Continued.
Order No. 71, May 31, 1899.-Writ of habeas corpus authorized --------Circular No. 17.-Instructions relative to habeas corpus ................
Order No. 88, June 27, 1899.-United States provisional court established.
Order No. 118, August 16, 1899.-Judicial districts of Porto Rico ......
Order No. 173, October 28, 1899.-Judicial acts to be paid for in advance.
Order No. 182, November 18, 1899.-Amendment of Order No. 118, relatingt o appeals -----------------------------------------------------Order No. 186, November 24, 1899.-Regulations for publishing legal
n o t i c e s . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Order No. 194.-Schedule of fees to be charged by judicial officers .....
Order No. 47, March 6, 1900.-Interpretation of certain articles of the
Treaty of Paris ....................................................


Page. 486 486 488 49f
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503

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INTRODUCTORY NOTE.


The translators of the present Code of Civil Procedure beg to call attention to the fact that there have been inserted as footnotes to the present translation over one thousand decisions rendered by the supreme court of Madrid, which serve to elucidate the language of the text. These decisions are authoritative interpretations, and in the Spanish courts have the force of law. The citations might have been more numerous, but only such decisions have been inserted as in the judgment of the translators would be useful in the prosecution of actions before the insular courts.
The references, also inserted as footnotes, calling attention to other laws in force, to royal decrees and military orders, which modify the procedure prescribed by the code, it is thought will also aid in making the work of practical use, both for those who desire to inform themselves as to the methods of Spanish procedure and those called upon to practice before the courts in the islands of Cuba and Porto Rico.
They beg further to explain that, as this translation was sent to the printer by parts, as fast as they were concluded, and then at once put into plates, it became impossible for them to modify in time some expressions, which may perhaps give occasion for criticism.
The principal changes intended by them to be made in their work are the following:
In the first title, on page 1, they said: "appearance in an action, while it might have been better to say "appearance in court," as it relates to voluntary as well as contentious jurisdiction.
Page 1, line 13, read: "may appear in court."
Page 2, line 1, read: " appearance in court."
Page 7, Section II: Instead of "legal aid to the poor" it might be better to say "proceedings in forma _pamteris."
Page 32, Title III, read: "Civil remedies against actions of ecclesiastical authorities."
Page 74, line 16, instead of "voted in chamber"' read "voted in court" as the former expression would lead one to'believe that the voting was secret.
5190ii




X INTRODUCTORY NOTE.
Page 106, Section IV: Read "copies of papers and documents and the purposes for which they are filed," instead of "and their purposes."
Page 106, article 514, first line: "every instrument" should be made to read "every petition."
Page 125, first line, subdivision 2, article 597: For "ancient public instruments" read "ancient deeds."
FRANK L. JOANNINI, Ofticial lTranslator. M. E. BEALL, Assistant. JANUARY, 1901.

I hereby certify that the following is a copy of the translation of the Law of Civil Procedure for Cuba and Porto Rico on file in the Division of Insular Affairs, War Department, made by the official translators thereof.
CLARENCE R. EDWARDS, Lieutenant- Colonel Forty-sventlb Infantry, U. S. .
Chief of Dilvision.












ROYAL DECREE.


EXCELLENCY: His Majesty the King (whom God preserve) has on this date deemed proper to issue the following decree:
"The General Codification Commission of the Colonial Department having concluded the study of the changes advisable in the Law of Civil Procedure in force in the Peninsula, for its application to the Islands of Cuba and Porto Rico, upon the recommendation of the respective Minister, with the advice and consent of said Commission, and making use of the authority granted my government by article 89 of the fundamental law of the Kingdom,
"I hereby decree the following:
"Article 1. The annexed Law of Civil procedure amended for the Islands of Cuba and Porto Rico is approved.
"Art. 2. Said law shall go into effect in both Islands upon the 1st day of January of the year 1886.
"Art. 3. For the survey and demarcation of estates owned in common (haciendas comnuneras), the Courts shall continue to apply the provisions of the Regulations of March 6, 1819, and the articles added thereto by the Audiencia of Puerto Prfncipe, in so far as not substituted or modified by the provisions contained in title 15, book 3 of the annexed law, without prejudice to the changes which the Government, after the proper investigation, may decree hereafter relating to said regulations.
"Given in the Palace on the 25th day of September, 1885.ALFONSO. Manuel Aguirre de Tejada, Minister for the Colonies."
Which I communicate to Your Excellency by Royal order for your information and other purposes. May God preserve Your Excellency many years.
Madrid, September 25, 1885.
TEJADA.
To the GOVERNOus-GENERAL OF CUBA AND, PORTO RIco.













LAW OF CIVIL PROCEDURE.



BOOK I.

PROVISIONS COMMON TO CONTENTIOUS AND VOLUNTARY JURISDICTION.'

TITLE I.
APPEARANCE IN AN ACTION.

ARTICLE 1. He who is obliged to appear in a proceeding in questions of contentious as well as in those of voluntary jurisdiction, shall do so before the competent judge or court in the manner prescribed by this law.

SEcTIoN I.-Litignts, solicitor.s, avnd attorneys.'

ART. 2. Only such persons as are in the full exercise of their civil rights may appear in an action.
The legal representatives, or those who, according to law, are to supply the want of capacity of persons not included in the aforesaid conditions, shall appear for them.
The legal representatives of corporations, associations, and other judicial entities shall appear for them.'

IContentious jurisdiction, that jurisdiction exercised when one invokes the aid of the law against one that disputes his demands, as distinguished from voluntary jurisdiction, when the person having the right to resist the demand appears as a consenting applicant. -Century Dictionary.
2 The distinction between procarador and abogado is not in every particular that between solicitor and attorney, but the translation conveys the idea. The promtrador is not a lawyer, although his signature to the pleadings is essential, excepting in certain cases as prescribed in the law.
I Without attempting a full enumeration, and referring to article 534 of this law, the persons who can not appear in an action, and consequently who can not grant powers of attorney to others to appear in their behalf, unless it be with the intervention of their legal represetatives, are the following: Minors wnho are orphans are legally represented by their guardians (Civil Code, art. 262), who in certain cages require theconsent of the family council. (id,R69,Nos.12 and 13.) If the interests of the guardian are opposed to those of the orphan, as, for example, in the case of number 9 of article 237 of the Civil Code, the representation the miitior in court pertains to the p)rotuitor. (iIbid, 286, number 2.)
(Childre,, not eanHocipated are represented by their parents ((Ciril Code, art. 156), and when said parents have an interest which is incompatible with those of their children,
5190 I 1





LAW OF CIVIL PIOCEDURE.


ART. 3. Appearance in an action shall be made through a solicitor, (procFrador) legally qualified to act before the stiperior or inferior court taking cognizance of the action, and having a power declared sufficient by an attorney.'

the latter shall be represented by the next friend referred to in article 165. If the parents are deprived of the parental authority, or if it be suspended (Civil Code, articles 70, paragraph 3; 73, par. 2, of number 2, and 168 to 171), the guardian appointed will represent the children.
Minors emancipated by the concession of the father or mother are represented in court by their parents, or, in their absence, by a guardian. (Articles 314, number 3, and 317 of the Civil Code.)
Minors who obtain the benefit of majority by concession of the family council are represented by a guardian. (Civil Code, articles 322 to 324 and 317, above referred to.)
Married persons over 18 years of age may appear in person in court in their own name and in that of their wives, according to articles 59 and 315 of the Civil Code, which must be understood in this manner, because the emancipation referred to in article 317 relates to that of number 3 of article 314.
Persons sufferring interdiction or undergoing a sentence. (See articles 228, 229, 262, 269, numbers 12 and 13, and 274 of the Civil Code, and the proper articles of the Penal Code.)
The deaf and dumb and the insane are legally represented by their guardian or, in a proper case, by the next friend appointed by the court or by the public prosecutor.-Civil Code, articles 215, number 3; 262, 269, numbers 12 and 13, and 274.
In actions relating to prodigals, when the defendant does not appear, he shall be represented by the public prosecutor or, in a proper case, by the next friend appointed by the court.-Civil Code, article 223.
MTarried woman.-The cases in which she does and does not require the permission of her husband to appear in an action are mentioned in articles 60 and 1387 of the Civil Code.
Bank-rupts.-After a declaration in bankruptcy, the bankrupts are disqualified from administering any of their property (1161 of this law and 1914 of the Civil Code), and consequently are deprived of the full exercise of their civil rights. The depositaryadministrator is the legal representative of the estate of the bankrupt (law, art. 1183) until trustees are appointed. After this has been done the trustees represent the bankrupt in court, defending his rights and taking the actions and exceptions incumbent upon them.-Civil Code, article 1188, rule 1.
Judicial persons (corporations, associations, and other judicial entities).-Towns and municipalities are represented by the procuradores sindicos, and in towns annexed to others in order to constitute a municipality, the presidents of their administrative boards also represent the respective towns, when actions or rights are involved which pertain exclusively to the said towns. -Articles 56 and 90 of the lau, of 1877, and Royal order of January 30, 1875.
Provinces were represented by the provincial deputy, appointed for the purpose in accordance with article 37 of the law of September 25, 1863; afterwards they were appointed by the governor, in accordance with articles 9 and 70 of the law of October 2, 1877, and subsequently by the vice-president of the provincial commission, in accordance with article 98, number 6, of the law of August 29, 1882.
The public treasury has been represented by the department of public prosecution in the manner prescribed by the decree of July 9, 1869, and by the order of the same date; but since the decree of March 16, 1886, it is represented by the state attorneys.
2According to a civil order, dated April 23, 1900, the intervention of solicitors has ceased to be obligatory in Cuba. (See order in Appendix.)





LAW OF CIVIL PROCEDURE.


The power must be attached to the first document submitted, which shall not be accepted without this requisite, even though it contains a promise to submit it.'
ART. 4. Notwithstanding the provisions contained in the foregoing article, the parties in interest may appear in person or through their administrators or general attorneys (but can not make use of the services of persons who are not qualified solicitors in towns where there are such):
1. In actions to avoid litigation (actos de conciliacin).
2. In actions of which municipal judges take cognizance in first instance.'
3. In actions involving interests of between 250 and 3,000 pesetas (de rer ottantia).
4. In actions before arbitrators or friendly compromisers.
5. In proceedings involving various interests (jticios univcrsale8) when the appearance is limited to the filing of creditors' claims or demands, or to attend meetings.
6. In pauper applications, incidental to an action, temporary support, cautionary attachments, and urgent measures preliminary to the action.
7. In proceedings of voluntary jurisdiction.
When the parties in interest do not appear in person, or by their general agents or representatives, they shall employ a duly qualified solicitor, in towns where there are such.
In the absence of a qualified solicitor, they shall appoint as their representative any resident of the town, of full age, in the enjoyment of his civil rights, and able to read and write correctly, giving him the proper power of attorney.
ART. 5. The acceptance of the power is presumed from the fact of its use by the solicitor.
After the power has been .accepted, it becomes the duty of the solicitor-'
'The appearance of a solicitor in an action shall not be justified by means of a certificate stating that a sufficient power is attached to other papers, when said certificate is not properly authenticated by the competent official.-Decision Qf November 21, 1892.
'Instania: The institution and prosecution of a suit from its inception until definite judgment. The first instance is the prosecution of the suit before the judge competent to take cognizance of it at its inception; the second instance is the exercise of the same action before the court of appellate jurisdiction, and the third instance is the prosecution of the same suit, either by an application of revision before the appellate tribunal that has already decided the cause or before some higher tribunal having jurisdiction of the same.-Bouvier's Lawe Dictionary, _Rawle's revision, Boston, 1897.
3 Solicitors can not acquire by purchase or cession any of the property or rights which may be the subject of an action in which they appear by reason of their office.Civil Code, art. 1459.




LAW OF CIVIL PIROCEDUIRE.


1. To prosecute the action until he ceases taking part therein for any of the causes mentioned in article 9.
2. To forward to the attorney selected by his client or by himself, when so authorized by the power, all documents, data, and instructions which may be transmitted to him or which he may acquire, doing everything possible to defend the interests of his client, under the liability imposed by law upon agents.
Should he have no instructions or should those given by his client not be sufficient, he shall take such action as may be required by the nature or character of the business.
3. To recover from the attorney who may have ceased administering a business, the copies of the instruments, documents, and other data which may be in his possession, for the purpose of delivering them to the person succeeding him in said administration.
4. At all times to keep his client and the attorney informed of the progress of the business entrusted to him, and deliver to the latter copies of all decisions of which he may be notified.
5. To pay all the expenses or costs caused at his instance, including the lawyers' fees, even though the latter should have been appointed by his principal.'
ART. 6. While the solicitor continues in the discharge of his duties he shall receive and sign the summons, citations, orders, and notifications of all kinds, including those of judgments served on him during the course of the action and until the judgment has been executed, which acts shall have the same force as if the principal had taken a direct part therein, and he can not request that said matters be sent directly to his principal.
The following are excepted:
1. The summons, citations, and orders which the law requires to be served on the parties interested in person.
2. Citations which require the compulsory presence of the person cited.'
ART. 7. If, after a legal proceeding has been instituted, the principal does not furnish to his solicitor the funds necessary to prosecute it, the latter may request that he be judicially compelled to do so.
This application shall be made to the superior or inferior court taking cognizance of the case, which shall grant the same, fixing the amount it considers necessary and the term within which it is to be furnished, under admonition of judicial compulsion (ap blndent(o de tpc t i~rmo). 2

'All costs specified in the schedule have the character of judicial costs (Deciqion of May 10, 1882), and they shall always he preferred and must not b;e confounded with credits of private iqdv iduas.-#'oo u;,iof AfTch 31, 1886. 2The citations, smmnnons, et(., served on the solicitor while he continues in his offlice have the same force of law as if served on the principal hinlself.-1eoiion of illay 23, 1878,





LAW OF CIVIL PROCEDURE. 5

ART. 8. When a solicitor is compelled to demand of his tardy principal the amiounts which the latter owes him for his fees and for the expenses he may have incurred in the action, he shall present to the superior or inferior court taking cognizance of the question a detailed account, with the proper vouchers, and shall take oath that the amounts appearing therein and claimed by him are due and unpaid; upon which the court or judge shall order that the principal be required to pay the same, with the costs, within a period not to exceed ten days, under admonition of judicial compulsion.
The heirs of solicitors shall have the same rights as the solicitors themselves with regard to credits of this character which may be left by the latter.
After the payment has been made, the debtor may demand satisfaction for any injury, and if it should appear that the solicitor has presented an excessive account he shall return double the amount of the excess, with all costs arising up to the time when full settlement for the injury is made.'
ART. 9. The solicitor shall cease to represent his principal1. By reason of the express or implied revocation of the power, as soon as said revocation is entered in the record. Said power shall be considered as impliedly revoked by the subsequent appointment of another solicitor who shall appear in the same proceeding.
2. When the solicitor shall voluntarily abandon the matter, or discontinue the practice of his profession; in either case he shall be obliged to give timely notice to his principals, either judicially or by means of a notarial instrument.
Until the cessation for either of the two above-mentioned reasons shall appear in the record and be declared, the solicitor can not abandon the representation he may have.
3. When the principal has withdrawn from the prosecution or defense made by him.
4. When the principal shall transfer to another his interests in the matter in litigation, as soon as the transfer has been recognized by a resolution or final ruling, with a hearing of the opposite party.
1 When a power is granted as a legal representative of a third person, the latter must be considered as the principal and his heirs are the real debtors against whom the solicitor must bring his action.-Decision of June 8, 1886. According to a royal decree of September 25, 1889, the provisions contained in this article are not applicable to municipalities, in accordance with the provisions of article 143 of the municipal law of October 2, 1877.-Deciio. of &Sptembe' 25, 1887. The chamber of the audiencia in requiring a solicitor to pay double the excess charged in a sworn account has correctly applied the third paragraph of article 8, on which the debtor based his right; because the declaration to the effect that the account was excessive necessarily carries with it as a penalty the return of double the excess and the payment of all the costs arising until full settlement for the injury is made.-Decision of October 4, 1888.





LAW OF CIVIL PROCEDURE.


5. When the character in which the principal appeared in the action has ceased.
6. Upon the conclusion of the action or proceeding for which the power was given, if given for that specific purpose only.
7. By reason of the death of the principal or of the solicitor.
In the former case the solicitor shall be obliged to inform the judge or court of the occurrence as soon as he receives notice thereof, duly proving the death, in order that his representation may be considered as ended, and if a new power executed by the heirs or representatives of the deceased should not be presented, the judge or court shall order that they be cited to appear in the proceedings within the period which may be fixed, under the proper admonition.
If the solicitor should die, the principal shall be informed thereof, for the purposes mentioned.'
ART. 10. The litigants shall be guided by attorneys legally qualified to practice their profession in the superior or inferior court taking cognizance of the proceedings. No petition shall be acted upon which does not bear the signature of an attorney.
The following are the only exceptions:
1. Proceedings to avoid litigation.
2. Actions of which municipal judges take cognizance in first instance.
3. Proceedings of voluntary jurisdiction.
In the last case the aid of attorneys is discretional.
4. Instruments for the purpose of entering an appearance in an action, requesting judgment in default, judicial corupulsion, extension of time, publication of evidence, fixing of hearings, their suspension, appointment of experts, and any other acts of mere practice.
When the suspension of hearings, extension of time, or action requested is based on causes which relate specially to the attorney, the latter shall also, if possible, sign the instrument.
ART. 11. Notwithstanding the provisions contained in articles 4 and 10, the solicitors as well as the attorneys may attend a proceeding t3 avoid litigation in the character of representatives or hwmbres buenos,2 or as assistants of the persons interested in oral actions, when the parties interested spontaneously desire to make use of their services.
In such cases, if the costs be taxed in favor of the party who has made use of a solicitor or attorney, they shall not include the fees of either.'
ART. 12. The attorneys may demand from the solicitor, and, if the 'The course of an action in which two persons have the same representative must not be interrupted on account of one of the parties revoking the power he has given the solicitor.1-Decision of October 20, 1882. 'In matters of conciliation, it applies to the two persons, one chosen by each party, to assist the constitutional alcalde in forming his judgment of reconciliation, Art. 1, chap. 3, Decree qf October 9, 1812.
See article 424 of this law.





LAW OF CIVIL PROCEDURE.

latter should not have taken part in the action, from the person whose defense they conduct, the payment of the fees they may have earned in the action, presenting a detailed memorandum thereof and taking oath that they are unpaid.
When this application is made in time, the judge or court shall admit it in the manner prescribed in article 8; but if the debtor should allege that the fees are excessive, they shall first be regulated, in accordance with the provisions of articles 426 et seq.1

SECTION II.-egal aid to thepoor.

ART. 13. Justice shall be gratuitously administered to poor persons who have been declared as entitled to this benefit by a superior or inferior court.'
ART. 14. Persons declared poor shall enjoy the following privileges:
1. The right to use in their defense stamped paper of their class.
2. The right to have an attorney and a solicitor appointed, without being obliged to pay them any fees or charges.
3. Exemption from the payment of all kinds of charges to the assistants and subaltern officials of the superior and inferior courts.
4. To give promise under oath to pay if their fortune should improve, instead of making the deposits necessary in order to request and obtain relief.
5. The right to have all letters rogatory and other communications requested by them acted upon, and complied with de oficio, should they demand it.'
ART. 15. The following only can be declared poor:
1. Those who depend for a living upon an uncertain wage or salary. 'This action is barred after three years (according to article 1967 of the Civil Code); but the appointment of an attorney at a stated salary for any services which may be required is an industrial lease contract, the actions relating to which are not barred for twenty years, as all personal actions according to law 5, title 8, book 11, of the Novfsima Recopilaci6n.-Decision qf December 91, 1885. The Civil Code fixes 15 years for the prescription of personal actions for which a special period of prescription is not fixed (art. 196.). I According to various administrative provisions and decisions of the supreme court, charitable institutions, as well as religious schools, must be considered poor persons (Royal Order of Decewber 21, 1857).
Parochial churches do not enjoy this privilege unless they prove that they are poor. With regard to foreigners there is some doubt as to this question; but the ordinary and reasonable interpretation is that they may enjoy this privilege, as they are granted the same civil rights as Spaniards; but in order to avoid doubts, some treaties make an express stipulation to this effect.
'According to the Royal order of August 31, 1863, still in force on the subject, there shall be inserted free of charge in the proper Diarios Ofiales such judicial notices which are required by the nature of the proceeding. When the publication is to take place in the Boletin Oficial, the announcement shall be forwarded to the governor of the respective province.





LAW OF CIVIL PROCEDURE.


2. Those who depend for a living upon a permanent salary or wage, from whatsover source derived, which does not exceed double that received by a laborer in the locality of the habitual residence of the applicant.
3. Those who depend for a living solely upon rents, farming, or stock raising the proportionate proceeds of which do not exceed the wages of two laborers in the place of their habitual residence.
4. Those who gain their livelihood solely through the exercise of an industry or from the product of any commerce on which they pay a tax lower than that fixed in the following scale:
In the city of Havana, 150 pesetas.
In the capitals of the other provinces of the island of Cuba, 100 pesetas.
In the capital of the island of Porto Rico, 100 pesetas.
In the seats of judicial, districts of the islands of Cuba and Porto Rico, 50 pesetas.
In the other towns of both islands, 25 pesetas.
5. Those who have all their property under attachment, or who have made a judicial assignment thereof to their creditors, and who are not engaged in any industry, trade, or profession, and not included in the provisions of article 17.
In such cases, if any property should remain after the creditors have been paid, it shall be applied to the payment of the costs incurred at the instance of the debtor represented as a poor person.'
1 (a) This article must be understood as subordinated to article 17, and therefore it is proper to refuse the benefit if the court shall deduce from the visible signs of wealth that the applicant has means which exceed double the wages of a laborer.Decisions of the Supreme Court of February 18, 1870; September 22, November 18 and 21, 1879; January 10, March 29, and June 24, 1880; February 11, 1881; December 15, 1888, and others.
(b) An appeal for annullment of judgment does not lie from the decision granting permission to prosecute or defend as a poor person. -Decision of M/iay 10, 1881.
(c) A person who lives exclusively on a pension of 20 reales per day, left her by will for herself and her three children, must be granted this right.-Decision of October 25, 1880.
(d) In order to decide whether the person requesting permission to prosecute or defend as a poor person who has acted in his own name is entitled thereto or not, there can not be taken into consideration the tax which he pays as the manager of an association.-Decision of September 9, 1882.
(e) The refusal to grant the benefit can not be based on the fact that the person interested should pay an industrial tax of 40 pesetas per annum, although he does not do so, the courts being obliged to consider only whether the tax is or is not paid or without being allowed to declare that it should or should not be paid, which is a matter of the exclusive jurisdiction of the administration. -Deision of October 31, 1884.
(f) The habitual residence referred to in article 15 of the Law of Civil Procedure, for the purposes of the benefit of poverty, must be that which the person interested has at the time he requests said benefit, and not the place where he may have resided for a longer period in former times.-Decision of May 30, 1883.





LAW OF CIVIL PROCEDURE. 9

ART. 16. When a person has two or more of the means of livelihood mentioned in the foregoing article, all of them shall be included in the computation of the income, and permission to prosecute or defend as a poor person shall not be granted him if the total thereof exceeds the amounts fixed in the foregoing article.
ART. 17. Permission to prosecute or defend as a poor person shall not be granted to a person included in any of the cases mentioned in article 15, when it appears to the judge from the number of domestics in his service, the rent of his residence, or from any other visible signs, that his means exceed an amount equal to twice the wages of a laborer in his respective locality.'
ART. 18. Neither shall permission to prosecute or defend as a poor person be granted to a litigant who enjoys an income which, added to that of his spouse, or to that arising from the property of his children, the usufruct of which he enjoys, amounts altogether to a sum equivalent to the wages of three laborers at the place of the habitual residence of the family.'

(g) All litigants shall be considered wealthy until they prove the contrary.Decision of November 12, 1883.
(h) It is incumbent upon the litigant to prove the amount of the wages of a laborer in his locality.-Decision of June 3, 1887.
(i) The children born of a first marriage of a woman whose husband is wealthy are entitled to the benefit of poverty, because the conjugal property of the second marriage is not liable for the litigation instituted in the interest of the issue of the first marriage.-Decision of April 18, 1893.
(j) The benefit of poverty is individual and does not extend, therefore, to any collectivity, such as industrial and commercial associations, unless each and every one of their members prove that they are poor. -Decisions of April 15, 187.9; June 3, 1880, and July 9, 1881.
(k) A person who is deprived of his property by virtue of a judicial attachment, and retains the product and rent thereof, can not allege that all his property is attached, as required by number 5 of article 15 of the Law of Civil Procedure, for the purpose of securing the benefits of articles 13 and 14 thereof.-Decision of October 14, 1886. The same is the case when the property is mortgaged or given as security.Decision of September 18, 1865.
'The words "when it appears to the judge" used in this article do not refer exclusively to the judge of first instance, but also to the superior or inferior court taking cognizance of the case.-Decision of September 23, 1882. '(a) The privilege to prosecute or defend as a poor person shall not be granted to a woman who has a wealthy husband, because the duties inherent to the marriage affect the latter.-Decision of Jane 3, 1865.
(b) Neither shall it be granted to the woman who receives an income which, together with that of her husband, is equivalent to the wages of two laborers (now of three) in the locality where they reside.-Decisions of June 17, 1865; September 18, 1865; Januory R6, 1869, and November 16, 1881.
(c) In legal proceedings between spouses, the unity of person and litigant disappears, and, as a necessary consequence, the incomes of each can not be added together, nor cal the external signs be considered in common for the purpose of obtaining a sun, of money, nor signs of wealth which do not exist separately; but in such cases the poor woman having a wealthy husband has a right to require the husband to




LAW OF CIVIL PROCEDURE.


ART. 19. When several persons individually entitled to defense as poor persons unite in an action, they shall be authorized to litigate as such, even though the united means of all of them exceed the amounts prescribed.
ART. 20. Permission to prosecute or defend as a poor person shall be granted only for the purpose of protecting one's own rights.
The assignee who has this right can not make use thereof to litigate the rights of the assignor, or those which he may have acquired from a third person not having said right, excepting when it was acquired by virtue of an inheritance.
ART. 21. The declaration of poverty shall always be requested of the superior or inferior court taking cognizance, or which is competent to take cognizance of the action or business with regard to which said permission is desired, and it shall be considered as an issue incidental to the principal question.'
ART. 22. When the person requesting the declaration of poverty intends to institute an action, said action shall not be commenced until the issue of poverty has been finally decided.
However, judges shall consent to the institution of proceedings without costs, which, if postponed, would cause irreparable injury to the plaintiff, but the course of the action must be suspended immediately thereafter.
ART. 23. When the application to prosecute as a poor person is made by the plaintiff or to defend as a poor person by the defendant at or after the time of answering the complaint, the same shall be passed upon as a separate issue at the cost of the person making the application.
In such case the continuation of the principal action may be suspended only with the consent of both parties.
make her an allowance for the purpose of paying the costs of her action, and even though the litigation with her husband extinguishes the personal unity, it does not extinguish the right of the wife to enjoy the common income which the husband retains.-Decision of June 14, 1887.
(d) When the father is wealthy, the son who is under his power can not be granted permission to litigate as a poor person with a third party, because, although the right to defend as a poor person is personal, this principle does not exclude the necessity of taking into consideration the attendant circumstances in special cases, as is the case with persons whose rights are inseparable from those of others, suih as married women and persons under the patental power, and others.-Decision of February 16, 1876.
A decision of September 21, 1888, repeats the doctrine that the benefit can not be granted to a wealthy father, in a legal sense, to appear in an action in the name of his poor children, because the duty to defend the property of the children in court is inherent to the parental authority.
'The issue of poverty raised and decided in a court does not determine the coinpetency of the same to take cognizance of the main issue, the competency for the poverty being subordinated to the jurisdiction of the principal action.-Decision of
-Ynrch 5, 1863.





LAW OF CIVIL PROCEDURE.


ART. 24. If the plaintiff should not have requested permission to prosecute as a poor person before bringing his action, and requests it subsequently, it can not be granted unless he duly proves that he has become poor after having brought his action.
ART. 25. The litigant who has not been represented as a poor person in the first instance, and desires to enjoy this privilegein the second, must prove that subsequently to the former, or during the course thereof, he has reached a condition of poverty. Should he not duly prove this fact, his application shall not be granted.'
ART. 26. The rule laid down in the foregoing article is also applicable to a person who, nothaving prosecuted or defended as a poor person in the second instance, makes the application to be so represented for the purposes of taking or prosecuting an appeal for annullment of judgment.
In such case he shall be required to make the deposit, if he should not have made his application for legal aid to the poor, before the citation for judgment in the second instance.
ART. 27. Any person making formal application for the declaration of poverty shall at once be defended as such, and an attorney and solicitor shall be assigned to him de qfcio if he should request it, without prejudice to what may subsequently be decided.
An attorney and solicitor shall also be assigned de qflcio to the person who requests it for the purpose of filing a petition to secure permission to prosecute or defend as a pqor person.
ART. 28. This petition shall be drafted in the manner prescribed in article 523 for ordinary petitions, and shall state in addition1. The native town of the petitioner, his present domicile, and his residence during the previous five years.
2. His status (whether married or single), age, profession or trade, and means of livelihood.
3. If married or a widower, the name and native town of his spouse and the children he may have.
4. The house or room in which he resides, stating the street and number and the rent he pays.
5. The property of his spouse and of his children, the usufruct of which he enjoys and the income it produces.
(a) Permission to prosecute or defend as a poor person may be requested after the conclusion of the second instance, and the decision, which does not so recognize violates the provisions of said article.-Decizion of December 9, 1882.
(b) The mortgage of all the property belonging to a person for the guaranty of a loan-that is, the contraction of a mortgage loan-is not sufficient to warrant the granting of this benefit, because said action may be explained by reasons of different kinds and does not prove that the person who appeared as a wealthy person in the first instance has become poor subsequently thereto, and for the reason that the mortgage, even though under the hypothesis that it affects all the property, can not be confounded with the total attachment of said property, depriving the person of the income therefroni.-Deai,,ion of March 12, 1887.





12 LAW OF CIVIL PROCEDURE.

6. And he shall attach a certificate issued by the competent authority or official that he has not paid a tax of any kind whatsoever during the current fiscal year and the preceding one, or of the amount he does pay, attaching in the latter case the receipts for the last quarter he may have paid, and another certificate, in a proper case, showing whether he does or does not appear in the electoral lists, and if so, in what character.
ART. 29. Petitions which do not contain the requisites mentioned in the foregoing article shall not be admitted.
If the petitioner shall allege that he could not procure the certificates mentioned in number 6 of said article, the judge shall call for them de o ficio, but the petition shall not be taken into consideration until they are attached to the record.
ART. 30. The petitions for permission to prosecute or defend as a poor person shall be heard and decided according to the procedur.e established for other incidental issues, with a hearing of the opposite party or parties and of the representative of the department of public prosecution on behalf of the State.
If this petition be filed before the action is brought, those who are to make answer thereto shall be summoned to appear for the purpose within nine days.
If the opposite party should not appear it shall be heard with the attendance of the representative of the department of public prosecution.
ART. 31. If the petition for permission to prosecute or defend as a poor person should be denied, the costs of the first instance shall be taxed against the petitioner.
In case of an appeal, those of the second instance shall be taxed against the proper person in accordance with law.
ART. 32. As soon as the judgment is final, the taxation of the costs shall be made, including that of the stamped paper, and they shall be collected by means of judicial compulsion.
ART. 33. The decision granting or refusing permission to prosecute or defend as a poor person does not produce the effects of a res j tdicata.
At any stage of the action the party in interest may raise a new issue for the revision or annulment thereof, provided that he secures to the satisfaction of the judge the costs which might be taxed against him if said action be not successful.
The department of public prosecution shall not be required to make this deposit if it raises said issue.
ART. 34. In the case of the foregoing article permission to prosecute or defend as a poor person shall not be granted to a person to whom it has once been denied, unless he shall fully prove that he has become poor subsequent to the decision which previously refused to grant him said privilege.




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His new petition shall not be accepted unless it is based on said reasons.
ART. 35. The declaration of poverty made during one action can not be made use of in another, if the opposite party should object.
If said party should object, the hearing of the issue must be renewed, a new decision with regard to the poverty being rendered in which the objecting party shall be cited and heard.
ART. 36. A declaration of poverty made in favor of any litigant shall not release him from the obligation of paying the costs taxed against him, if property should be found upon which to levy therefor.
ART. 37. If the person granted permission to prosecute as a poor person should be successful in the action which he may have brought, he shall be obliged to pay the costs incurred in protecting his interests, provided that they do not exceed one-third of the amount he may have obtained by virtue of the suit or complaint.
If the costs should exceed said one-third, they shall be reduced proportionately.
ART. 38. Should there not be sufficient property to cover the charges of the treasury and the fees of the attorneys, solicitors, and other persons interested in the costs, the proceeds shall be proportionately divided among them.
ART. 39. The person granted permission to prosecute or defend as a poor person shall also be obliged to pay the costs mentioned in article 37 if within three years after the conclusion of the action his fortune should improve.'
His fortune shall be considered to have improved1. If he has obtained a permanent salary, wages, income, or property, or become engaged in farming or stock raising, the profits of which exceed an amount equal to the wages of four laborers in the locality.
2. If he pays a tax amounting to twice the sum mentioned in nmnber 4 of article 15.2
ART. 40. A person who has been granted permission to prosecute or defend as a poor person may make use of the services of a solicitor and attorney selected by himself, if they accept the charge.
Should they not do so they shall be appointed by the court (de qfcio), but subject to the provisions contained in the following articles.
ART. 41. The person who has obtained permission to prosecute an action or file a complaint as a poor person must present to the court, on common paper or on stamped paper of poor persons, a detailed 'After three years have elapsed the obligation to pay attorneys, court clerks, etc., their charges and fees, is prescril)ed.-Ciil (ode, art. 1967, par. 1.
2 As an action demanding payment can not be brought before there exists the obligation to pay, and as poor persons are not obliged to pay the fees until their fortune betters, it is evident that the period of three years for its limitation must be counted from the latter date.-Decision of October 15, 1885.




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statement of the facts on which he bases his right, and the documents or a description of the manner in which he intends to prove the same.
ArT. 42. As soon as the person who has obtained permission to prosecute and defend as a poor person has fulfilled the provisions contained in the foregoing' article, he shall be assigned a solicitor and an attorney de ofcio to act on his behalf and in his defense, and the record shal be delivered to the solicitor, who shall hand it to the attorney for examination.
ART. 43. If the attorney should consider that the facts contained in the statement are insufficient, he may request, within ten days, that the person interested be required to amplify or elucidate the points which he may designate.
ArT. 44. When, with or without such amplification, the attorney should consider that the poor person has not a good cause of action, he may withdraw from the defense, informing the court thereof within ten days in a succinct document, with the reasons for his action.
ART. 45. In such case the court shall forward the record to the College of Attorneys (bar association) in order that two practicing attorneys of those who pay the three highest tax quotas may give their report as to whether or not the person who has been granted permission to prosecute as a poor person has a good cause of action.
Should there be no college, the judge shall designate two of the oldest attorneys of the same court to render said report, and if there should be no qualified attorneys he shall forward the papers in the case to the nearest College of Attorneys through the proper judge.
ART. 46. If the report of said two attorneys should agree with that of the attorney appointed dle qflcio, the person interested shall not be granted permission to prosecute or defend as a poor person in said matter, without prejudice to his right to bring the action as a wealthy person.
ART. 47. When the two attorneys, or one of them, should consider that there is a good cause of action, or that, at least, the right of the person declared poor is doubtful, another attorney shall be assigned him de ficio, who will be obliged to undertake the defense.
ART. 48. If the defendant should be granted permission to appear as a poor person, and if the attorney who is to undertake the defense should withdraw therefrom on account of his belief that said defendant has not a good cause of action, he shall inform the court within six days, which shall order the appointment of another attorney.
If the latter should also excuse himself for the same reason, the matter shall be placed in the hands of the _promotorflswa7 (if he should not be a party), for his statement as to whether the poor person has or has not a good cause of action.
If the department of public prosecution were a party this report shall be made by an attorney not of poor persons selected by the col-




LAW OF CIVIL PROCEDURE.


lege, where there is any, and in the absence of such college, by the judge.
If the promotorofiscal, or the third attorney in a proper case, should consider that the poor person has not a good cause of action, the obligation of the attorney to conduct the defense gratuitously shall cease; but if he considers that the claim is good, a third attorney shall be appointed de ofycio, who can not excuse himself from conducting the defense.
The same shall be done when the plaintiff applies by petition and receives permission to prosecute as a poor person after the complaint has been answered, or in the case of any of the parties during the course of the second instance.
ART. 49. Attorneys who should not make the statements referred to in articles 43, 44, and 48 within the period fixed, shall be considered as having accepted the defense and can not excuse themselves except for the reason of having ceased to practice their profession.
ART. 50. The attorney who has undertaken to conduct the defense of a party as a wealthy person, afterwards declared poor, shall be obliged to continue the defense in the latter character when there are no attorneys for poor persons in the court, qualified to conduct it.


TITLE II.
COMPETENCY AND QUESTIONS OF JURISDICTION.
SECTION I.- General provisions.
ART. 51. The ordinary judicial courts shall be the only ones competent to take cognizance of civil disputes occurring within the territory of the islands of Cuba and Porto Rico between Spaniards, between foreigners, and between Spaniards and foreigners.
ART. 52. The only exceptions from the provisions contained in the foregoing article are the preliminary steps in intestate and testamentary proceedings with regard to estates of soldiers dying in the field, and of sailors belonging to the navy dying at sea, whose cognizance pertains to the commanders and authorities of the army and navy.
These preliminary steps shall be confined to the burial of and obsequies over the remains of the deceased, the making of the inventory, and custody of his property, books, and papers, and their delivery to the legatees or devisees, or to the heirs of the intestate within the third civil degree, provided they are of age and there be no objections made.
Otherwise, and when the heirs have not appeared, or when it should be necessary to continue the proceedings, the papers shall be delivered to a court competent to take cognizance of the testamentary or intestate proceedings, the property, books, and papers inventoried being placed at the disposal of the court.





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ART. 53. In order that judges and courts may be considered as having jurisdiction it is necessary:
1. That the right to take cognizance of the action, or of the proceedings in which they take part, be vested by law in the authority they exercise.
2. That the right to take cognizance of the action or proceeding be vested in them in preference to other judges or courts of the same class.
ART. 54. Civil jurisdiction may be vested in any judge or court which, by reason of the matter, of the amount in litigation and of his or its rank in the judicial service, may be competent to take cognizance of the matter submitted to the same.
ART. 55. The judges and courts who are competent to take cognizance of an action shall also have jurisdiction over the exceptions taken therein, over counterclaims in proper cases, over all incidental issues, and to enforce their rulings and decisions.'

SECTION 1.-Rules to determine competency.

ART. 56. Any judge impliedly or expressly agreed upon by the litigants shall be competent to take cognizance of the suits arising from actions of all kinds.
This submission, however, can only be made to a judge exercising ordinary jurisdiction and who is competent to take cognizance of questions similar to and of the same kind as the one submitted.2
ART. 57. By an express submission shall be understood that made by the parties in interest clearly and in definite terms renouncing their own rights, and unequivocally designating the judge agreed upon to determine the question.'
(a) The cognizance of a claim of litis expensas in consequence of an ordinary action instituted by the wife to compel the husband to turn over to her the administration of the property in addition to the dowry or parapherna, pertains to the judge by whom the ordinary action should be heard.-Decision of September 27, 1890.
(b) In an action brought requesting the increase of alimony, the judge who originally fixed the alimony is competent, because it is an issue in the first proceeding.Decision of October 21, 1887.
2(a) The judge or court impliedly or expressly agreed upon by the litigants shall be competent to take cognizance of the suits arising from the exercise of civil actions, provided that he has jurisdiction, etc.-Decisions of April 2, 1877, April 13, 1891, February 5, 1892, and others.
(b) The judge agreed upon by the litigants shall be competent to take cognizance of suits arising from the exercise of all kinds of actions-Decisons of April 20, 1887, February 5, 1892, and otb'ers.
(c) The heirs of a person submitting to a court can not refuse to appear before the same.-Decision of October 23, 1882.
' If the submission is made by means of a public instrument, until said instrument is invalidated by a final judgment, it shall be of sufficient force to attribute competency in the court designated therein.-Deciions of February 20, JIee 26, September 27, and October 25, 1880.





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ART. 58. An implied submission is made:
1. By the plaintiff, by the act of filing his complaint before the judge.
2. By the defendant when, after his appearance is entered in the action, he takes any further steps therein, except to formally object to the jurisdiction of the judge by declinature.'
ART. 59. In towns where there are two or more judges of first instance, the distribution of the business shall determine the competency thereof, and the litigants can not for themselves select one of said judges to the exclusion of the others.
ART. 60. The express or implied submission to a court for the first instance shall be understood as having been made for the second instance to the hierarchical superior of the same, which is to take cognizance of the appeal.
ART. 61. In no cases can the parties submit any matter on appeal to a judge or court other than one to which the court which took cognizance of the case in first instance is subordinated.
ART. 62. With the exception of the cases of express and implied submission referred to in the foregoing articles, the following rules ,shall apply:
1. In personal actions, the competent judge shall be that of the place where the obligation is to be performed, and in his absence that of the domicile of the defendant or of the place of the contract, at the election of the plaintiff, if said defendant be found there, even accidentally, and process can be served upon him.
When the action is simultaneously brought against two or more persons residing in different towns who are severally or jointly liable, no place for the performance of the obligation having been agreed
'Declinati'e is the term applied to the privilege which a party has, in certain circumstances, to decline judicially the jurisdiction of the judge before whom he is cited.-Bell's Dic. and Digest of the Laow oScotland, 7th ed.
When the defendant has not entered his appearance in the action nor taken any part therein whatsoever it can not be said that he has impliedly submitted thereto.Decision of Deceoiber 20, 186.
When the defendant, in answering the complaint, takes the exception of incompetency there is no implied submission.-Decision qf April 17, 1886.
It is not sufficient to allege incompetency, but the defendant must make an issue of the incompetency in order not to be subjected thereto, as any other action subjects him to the jurisdiction of the court before which the action was brought.Decision qf 3ay 23, 1878.
A defendant who does not object to the conpeten'y of judge to whom the plaintiff applies for a declaration of poverty, acknowledges that he is competent to take cognizance of the principal action, in accordance with article 187 of the former law of civil procedure which accords with article 21 of the present procedure. -Decision of October 14, 1881.
A creditor who, before instituting an action, applies to the court requesting that his advrsary confess the debt, is subject to the jurisdiction of said court and can not enter suit for payment in another court-Decision of April 14, 1884.
5190-2





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upon, the judge of the domicile of any of the defendants shall be of competent jurisdiction, at the election of the plaintiff.
2. In real actions involving personal property or chattels, the judge of the place where it is located shall be of competent jurisdiction, or the judge of the domicile of the defendant, at the election of the plaintiff.
3. In real actions involving real estate the judge of the place where the thing in litigation is situated shall be of competent jurisdiction.
When a real action involves several real properties, or one only situated in different judicial districts, jurisdiction is vested in the judge of any of the places within the jurisdiction of which the property is situated, at the election of the plaintiff.
4. In mixed actions the competent judge shall be the one of the place where the things are situated, or that of the domicile of the defendant, at the election of the plaintiff.'
AnT. 63. In order to determine competency, in cases other than those mentioned in the foregoing articles, the following rules shall apply:
1. In actions involving the civil status of a person the judge of the domicile of the defendant shall be competent.
2. In actions involving the rendition and settlement of accounts of administrators of property of another, the judge of competent jurisdiction shall be the one of the place where the accounts are to be rendered, and if said place should not be determined, that of the domicile of the principal or owner of the property, or that of the. place where the duties of the administrator are performed, at the election of said owner.
3. In actions upon guaranties or upon the performance of obligations prior thereto, jurisdiction is vested in the judge competent to take cognizance, or who is already taking cognizance, of the principal obligation involved.'
4. In counterclaims or cross complaints (reconencitn) the competent judge is the one taking cognizance of the main action.
In the absence of submission the judge of the place where the obligation is to be performed shall be competent to take cognizance of personal actions, and said place, when not specified, shall be that where what has been stipulated has begun to be fulfilled. -Decision of April 16, 1888.
The judge of the place where the obligation is to be performed must always be preferred to that of the domicile of the defendant.-Decision of January 3, 1885. If no stipulation has been made to the contrary, the amount of the contract obligation must be paid in the place where the contract was executed.--Decision of Febr~ary 10, 1883, and June 11, 1889.
When a person dies and another pays the funeral expenses the debt must be paid in the place of the demise, and the judge thereof is competent. -Decision of May 5, 1885. The judge competent to take cognizance of actions brought to recover fees shall be the one of the place where the services were rendered for which the fees are charged..-Decision of Febrary ;?7, 1885.
' When the exercise of a real action is in question, the judge competent to take cognizance thereof shall be that of any of the places where the charged property is situated, at the election of the plaintiff.-Decision of anuary 24, 1889.





LAW OF CIVIL PIROCEDURE.


This rule is not applicable when the import of the counterclaim
exceeds the amount involved in actions over which the judge taking cognizance of the first claim has jurisdiction, in which case the counterclaimant or cross complainant shall reserve the right to bring the
action in the proper court.
'L 5. In testamentary or intestate proceedings the judge of the last
place of residence of the deceased shall be competent.
If the last place of residence should be a foreign country, then jurisdiction is vested in the judge of the last place of residence of the deceased within Spanish territory, or where the greater portion of his
property is located.
The foregoing shall not impair the power of the judges of first
instance or municipal judges of the place of demise, to take the measures necessary for the obsequies over the remains and the burial of the deceased; and, in a proper case, that of the judge within whose jurisdiction property of the deceased may be situated, to take the measures necessary to care for and safely keep the same, as well as his books and papers, forwarding an account of his action to the judge of competent jurisdiction in the testamentary or intestate proceedings and abandoning his jurisdiction in the matter.'
6. The foregoing rule shall also apply to testamentary proceedings
the object of which is the distribution of the property among the poor, relatives, or other persons designated by the testator, without indicating their names.
When the purpose of the proceedings is the adjudication of religious
bequests or other ancient institutions, the competent judge shall be that of any of the places within whose jurisdiction the property may
be situate, at the election of the plaintiff.
7. In proceedings relating to inheritances, their distribution, the disposition of legacies, universal and singular fideicommissa, or trusts
1The cognizance of testamentary and intestate proceedings is vested in the judge
of the last residence of the deceased.-Decision of February 4, 1889.
When a person dies in a foreign country and there is no information tending to
show that he is a resident thereof, and less that he took up his residence in the same with the intention of losing or abandoning his domicile in Spain, it must be presumed that his absence was temporary and that his domicile continued to be the place where his family was established, for the purposes of this article.-Decision of August
2, 1866.
When the last residence of the deceased is known, the judge of the same is competent to take cognizance of the testamentary proceedings, his having a business place in another district and that he paid a consumption tax in the latter and resided
there temporarily being no obstacle thereto.-Decigio of December 3, 1881.
'In the Roman law, a universal fideicommiss consisted in the appointment of an
heir with directions rerbis precativis that he should restore the inheritance to a third person mentioned, the heir being called fiduciarius, and the third person fideicommissaris. The singular fideicommiss was simply a trust legacy, differing from the common legacy in nothing but the form and the words employed.-Bell's Dictionary
and Digest of the Law of Scotland.





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claims of testamentary and hereditary creditors, during the pendency of thetestamentary or intestate proceedings, j arisdiction is vested in the judge competent to take cognizance of the last-named proceedings.1
8. In voluntary bankruptcy proceedings of merchants and of nonmerchants, the judge of competent jurisdiction shall be the one of the domicile of the bankrupt.
9. In bankruptcy proceedings instituted by creditors, that of any of the places where the judicial writs of execution are being enforced. Among the aforesaid courts shall be preferred that of the domicile of the debtor if he and a majority of the creditors request it. Otherwise the court which decreed the adjudication of insolvency shall be preferred.
10. In proceedings relating to the challenge of arbitrators and friendly compromisers when they do not agree to the challenges, the judge of the place where the party challenged resides shall be competent.
11. In appeals taken against arbitrators, in the cases where they lie according to law, the audiencia of the district within which the town is situated in which the action has been heard, shall be of competent jurisdiction.
12. In cautionary attachment proceedings the judge of the judicial district in which the property to be attached is situated shall be conipetent, and for precautionary purposes in cases of urgency the municipal judge of the town in which they are situate.'
13. In actions of unlawful detainer or of redemption, the competent judge shall be the one of the place where the thing in litigation is situate, or the one of the domicile of the defendant, at the election of the plaintiff.
14. In summary proceedings to acquire possession of property' the
IWhen the claims deduced relate to obligations inherent to an intestate, involving the expenses incurred during the last illness, burial, and funeral, the court taking cognizance of the intestate proceedings shall also be competent to pass on and determine said clains.-Decaision of December 22, 1886.
2 With the exception of the cases referred to in article 1409 of the Law of Civil Procedure, when the cautionary attachment is requested after the institution of the principal action, or as an issue of tile same, and of cases of implied or express submission of the parties, to which are applicable articles 55 and 56, respectively, the coipetency to take cognizance of said attachments must be determined by rule 12 of article 63 of the said law. Consequently, if a cautionary attachment is requested before the institution of the principal action, and the submission has not been alleged, the judge of the district in which the property is situated shall be competent to take cognizance of the proceedings, no matter what judge may be competent to take cognizance of the action which may subsequently be instituted.-Deciion of March 15, 1887.
'loterdieto de adquicir. These proceedings lie when no one possesses the property, whose possession is desired, as an owner or usufructuary, because the person possessing the samne can not be deprived of his possession without having his right heard and determined in court; and it is furthermore necessary that a copy of the will giving him a right thereto be presented, or of the designation of heirship by virtue of which ie claims the same.-lcubila, Diecionaio de la Adminietreaci6l espaimoht.





LAW OF CIVIL PROCEDURE.


competent judge shall be the one of the place where the property is situate, or where the testamentary or intestate proceedings are instituted, or that of the last domicile of the deceased.
15. In summary proceedings to retain or recover possession of
property . to prevent the construction of a new work, or to secure the demolition or strengthening of a work, building, or tree about to collapse or fall, and in proceedings to settle boundaries, the judge of competent jurisdiction shall be the one of the place in which the thing which is the object of the summary proceedings or settlement of
boundarios is situated.
16. In proceedings for adoption or arrogation the judge of competent jurisdiction shall be the one of the domicile of the adopter or
arrogator.'
17. In the selection and appointment of guardians of persons and "I property, and excuses from accepting them, jurisdiction is vested in
the judge of the domicile of the father or mother whose death gives rise to the appointment, and, in their default, that of the minor or incapacitated person, or that of any of the places where they may
have real estate.'
18. In the appointment and selection of guardians ad itein, jurisdiction is vested in the judge of the place where the minors or incapacitated persons have their domicile or that of the place where
the action is to be instituted.
19. In actions based upon the conduct of the guardianship of person or property, in the resignations therefrom after having begun to perform the duties thereof, and in actions to remove suspicious guardians, the judge of competent jurisdiction shall be that of the place where the principal part of the guardianship has been administered, or that of the domicile of the minor.
20. In proceedings for the custody of persons, jurisdiction shall be
vested in the judge taking cognizance of the main action or cause
which gave rise to said proceedings.
When there is no prior action pending, the competent judge shall be
the one of the domicile of the person sought to be placed in custody.
'It'rdlctos de retener y recobrar were different according to the law of 1855; but the
present law has abolished the difference of procedure between the same. It lies when the person in possession of the thing has been disturbed therein by acts which show the intention of disturbing him or depriving him of possession, or when he has
already been deprived thereof.-AlcUbilla, Diccionario de la Adininitraci(n e.paiola.
'The Civil Code has abolished the difference between adoption and arrogation
observed in the Roman law and which was retained in the Spanish laws, as may be
seen in Law 7, Title VII, Partida Fourth, and in article 1830 of this law.
'The Civil Code, besides having abolished the difference between guardianship of
person and guardianship of property (tutela y curaduna), has made the provisions of rules 17 to 19 inapplicable by reason of having assigned the appointment and selection, ag well as the removal and excuses of the same, to the family council.
(Articles 239, 240, and 249.)





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When special circumstances so require, the municipal judge of the place where the person sought to be placed in custody is found, may order such custody temporarily, and shall forward a statement of his action to the competent judge of first instance, subjecting the person in custody to the orders of said court.'
21. In proceedings for maintenance, when collaterally requested in an action, or in proceedings for the custody of a person, the judge of competent jurisdiction shall be that of the place of residence of the person of whom said maintenance is requested.'
22. In proceedings for the reduction to public instruments of wills, codicils or bequests made verbally, or documents executed without the intervention of a notary public, and in proceedings instituted for the opening of sealed wills or codicils, the judge of competent jurisdiction shall be that of the place where said documents may have been executed.
23. In authorizations for the sale of property of minors or incapacitated persons, the competent judge shall be that of the place where the property may be situated, or that of the domicile of the persons to whom it belongs.'
24. In proceedings for the administration of the property of an absentee, whose whereabouts is unknown, jurisdiction is vested in the judge of the last place of residence of said absentee within Spanish territory.
25. In proceedings to dispense with the law, and in proceedings for authority to appear in an action, when required by law, the judge of competent jurisdiction shall be the one of the domicile of the person requesting it.
26. In proceedings to perpetuate testimony the judge of competent jurisdiction shall be that of the place where the facts occurred, or the one where the witnesses who are to testify may be, even accidentally.
I If the person has been placed in charge of his mother, the judge of the domicile of the latter shall be competent to determine the custody and support of the minor.-Decision of July1 2, 1878.
2 (a) Not this rule, but the first one of article 62 is applicable, to a suit for the reduction or release from the payment of maintenance, paid by virtue of a judgment.-Deci.4ion of , ebrtry 28, 1878.
(b) This rule does not make any distinction between a voluntary and contentious proceeding, nor between temporary and definite support.-Decision Qf October 29, 1879.
'This rule is modified by article 164 of the Civil Code, according to which the authorization to the father, or to the mother, in a proper case, to alienate or encumber the property of the child for proper causes of profit or necessity, and whose usufruct or management they enjoy, must be granted by the judge of the domicile. The authorization to the guardian to alienate or encumber property which constitutes the capital of the minors or incapacitated persons, etc., must at the present time be granted by the family council. (Cihil Cbde, articles 269, 270, (we 271.)





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When these proceedings relate to the actual condition of real estate,
the judge of competent jurisdiction shall be the one of the place where
it may be situate.
27. In proceedings for surveying, for partition of forosj and for
possession of property, by an act of voluntary jurisdiction, the competent judge shall be that of the place where the greater portion of
the estate is situated.
ART. 64. The domicile of married women not legally separated from
their husbands is that of their husbands.2
That of the children under the parental authority is the residence of
their parents.
That of minors or incapacitated persons subject to guardianship is
the residence of their guardians.'
ART. 65. The legal domicile of merchants, in all that relates to commercial acts and contracts and the consequences thereof, shall be the
town where their principal place of business is located.
Persons who have commercial establishments situated in different
judicial districts may be made defendants in personal actions in the place where their principal establishment is located or where the obligation was incurred, at the election of the plaintiff.
ART. 66. The domicile of civil and commercial corporations shall be
the town designated as such in the articles of incorporation or in their h by-laws.I
Should this circumstance not be apparent the provisions applicable
to mer chants shall be observed.
Joint-stock companies are excepted from the provisions contained
in the foregoing articles in all that relates to litigation between the members, with regard to whom the general provisions of this law shall
be observed.
ART. 67. The legal domicile of employees shall be the town where
they discharge the duties of their employment. When the character of their employment is such as to require them to be traveling continuously from place to place, their domicile shall be considered the
place where they most frequently reside.
ART. 68. The legal domicile of soldiers in active service shall be
that of the town in which the corps to which they belong may be at
the time when service of summons is made.
Emphyteutic rents.-Schill., C. L., 309.
'The application of this rule is not affected by the fact that the wife resides in a
town different from that of the residence of the husband, nor that she is registered
in said town.-DeColion of October 30, 1878.
'See notes to rules 17 and 19 of article 63.
The fact of the establishment of L branch in a place not the domicile of the company, according to the articles of incorporation, does not affect said domicile.-Decision of June 4, 1883.





IA'W OF CiVIL PIOCEDIURP.


ART. 69. In cases in which the designation of the domicile is necessary in order to determine jurisdiction, if the defendant has no domieile in the islands of Cuba or Porto Rico, jurisdiction is vested in the judge where said defendant resides.
Those who have no fixed domicile or residence may be sued in the place where they may be, or in their last place of residence, at the election of the plaintiff.
ART. 70. The foregoing jurisdictional provisions shall be applicable to foreigners who may seek the aid of the Spanish courts in acts of Voluntary jurisdiction, or who appear in an action as plaintiffs or defendants against Spaniards or against other foreigners, when the Spanish jurisdiction is authorized according to the laws of the Kingdom or by treaties with other powers.
ART. 71. The rules established in the foregoing articles shall be understood without prejudice to the provisions of law in special cases.

SECTION III.-Questions of competency.

AnT. 72. Questions of competency may be raised by inhibition or declinature.
The inhibition shall be presented to the judge or court considered competent, requesting that a writ be issued forbidding the court not considered as having jurisdiction to proceed in the cause and ordering it to transmit the record.
The declinature shall be submitted to the judge or court considered incompetent, requesting that he or it cease to act in the matter and to transmit the record to the judge or court considered competent.'
ART. 73. The inhibition and the declinature may be interposed by the parties cited to appear before the incompetent judge, or by those who may be the legitimate parties in the action brought."
'It is not sufficient to allege incompetency, but it is necessary to formally raise the question, and if this is not done the benefit of number 6 of article 1693 of the law in force can not be taken advantage of in order to base thereon an appeal for annullment of judgment.-Decision of October 26, 1861. When the differences between two judges do not involve any question of jurisdiction, but only the interpretation of a legal text, it is not a question of competency, and the parties may make use of their right before whom they wish and in the proper manner.-Decision of November 14, 1884. In order that there may be a question of competency it is necessary that two judges allege that they desire to take cognizance of the same matter, believing themselves competent to do so; and this is not the c'e when each of the judges agrees that the cognizance of the case brought before him pertains to his colleague and they dispute only the validity of the attachment decreed by one of them with full powers in the suit which he is hearing.-Deision of Juli,12, 1887. 2In civil matters questions of competency may be raised only by persons who appear as litigants, either having brought the actions or being defendants therein.Decision of August 30, 1866.





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ART. 74. In no case shall questions of competency in civil matters
be raised by the court on its own motion; but the judge who considers himself incompetent in the matter may abstain from taking cognizance thereof, after consulting with the department of public prosecution, admonishing the parties to submit their questions to the
proper court.
This ruling of the court may be appealed from for review and for a
stay of proceedings.
AnT. 75. The litigant who has submitted himself expressly or inpliedly to the court or judge before whom the matter is brought,
can not interpose an inhibition or a declinature.
ART. 76. Neither can questions of competency be raised in judicial
matters which have been closed by a final ruling or judgment.'
AnT. 77. He who interposes one of the pleas mentioned in article
72 can not abandon it and seek the other plea, nor take advantage of both simultaneously or successively, but must submit to the determination of the plea he may have preferred.
ART. 78. He who raises a question of competency by either of the
pleas above mentioned, shall state in his plea that he has not interposed
the other one.
If the contrary shall appear, he shall be taxed the costs of the issue, 1, even though the question of competency be decided in -his favor.2
Airs. 79. The practice prescribed for dilatory exceptions shall be
followed in declinatures as prescribed in article 536.
The practice prescribed in the following articles shall. be applicable
to inhibitions.
ART. 80. The following may hear and determine questions of competency raised by the parties:
1. Municipal courts.
2. Courts of first instance.
3. Audiencias.
ART. 81. No judge or court can raise the question of the competency of his next hierarchical superior, but hie may state, at the instance of the party and after hearing the department of public prosecution,
Although, according to this article, questions of competency can not be raised in
judicial mnatters which have been closed by a final ruling or judgnt, when the municipal judge who rendered the same received the writ of inhibition after doing so, and the defendant had requested it on the same (ay on which he was cited to appear, this article is not applicable, because the delay in the matter on account of
said writ can not prejudice him.- ecision of Jntwry 10, 188"J.
After a cautionary attachment has been ratified without the debtor having made
use of his right, no question of competency can be raised with regard to the attachment, it being a closed judicial matter.-Deision of Mfarch 3, 1885.
2When a declinature has been unsuccessfully interposed in an issue of poverty, an
inhibition can not afterwards be interposed in the main action, and the person doing so must be taxed the costs in accordance with the provisions of this article.Decision of December 31, 1891.





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his reasons for believing that the cognizance of the matter pertains to him.
The superior court or judge shall deliver the statement and data to the representative of the department of public prosecution, for a report thereon, and without further proceedings shall decide within three days what he or it may consider proper, communicating the decision to the lower court for its guidance.
ART. 82. When any judge or court is taking cognizance of a matter, jurisdiction over which belongs to his or its immediate hierarchical superior or to the supreme court, the latter shall confine themselves to order the former, also at the instance of a party, and after hearing the department of public prosecution, to abstain from proceeding in the matter and to forward the record to the same.
ART. 83. In the cases of the two foregoing articles, the judges and courts shall always comply with the order of their next hierarchical superior, without further remedy, when the latter is the supreme court. From the decisions of the audiencias, but without prejudice to their fulfillment, the parties who may consider themselves injured and the department of public prosecution, may appeal within eight days to the third chamber of the supreme court. This chamber shall call for a detailed report, or for the record of the proceedings, from the audiencia which may have rendered the decision, and after hearing the department of public prosecution shall decide what it may consider proper.
A similar appeal may be taken to the civil chamber of the proper audiencia by the parties who consider themselves injured by the resolutions of judges of first instance in their relations with municipal judges.
ART. 84. Pleas for inhibition shall always be interposed in writing, subscribed by an attorney.
The only exceptions from this rule are those relating to oral actions, when the interest involved therein does not exceed 1,000 pesetas, which exceptions may be interposed and heard verbally before the municipal judge, or in writing, without the necessity of the subscription of an attorney; but the municipalfiseal must be heard in writing.'
ART. 85. The judge or court before whom an inhibition is interposed shall hear the representative of the department of public prosecution, unless the latter should have advanced said plea himself, as a party to the action. The department of public prosecution shall conclude the hearing within three days.
ART. 86. After the department of public prosecution has been heard, the court shall decree the issue of a writ of inhibition, or shall declare that the plea was not well taken.
'The absence of -the. signature of an attorney to an inhibitory plea constitutes a breach of form which prevents the decision of .the competency.-Decision of July 5, 1880.





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AiT. 87. The decree of a municipal judge or judge of first instance declaring that the inhibitory plea was not well taken, may be appealed from for review and for a stay of proceedings.
Only an appeal for annulment of judgment by reason of breach of form lies, in a proper case, from similar decisions of audiencias, whether rendered on appeal or in first instance.
ART. 88. To the writ of inhibition there shall be attached a certified copy of the instrument in which it was requested, of the statements of the representative of the department of public prosecution, of the decision rendered thereon, and anything else which the judge or court may deem necessary to sustain his or its jurisdiction.
ART. 89. As soon as the judge or court inhibited receives the writ of inhibition, he or it shall suspend the proceedings and shall hear the party or parties who may have appeared in the action, and if said parties should not agree to the inhibition, said judge or court shall also hear the representative of the department of public prosecution.
ART. 90. The hearing of the parties referred to in the foregoing article shall only be had during three days, after which, if the record be not returned, it shall be officially recovered by or without a writ, and after the representative of the department of public prosecution has been heard, in a proper case, the judge or court shall decide whether or not he shall be inhibited from proceeding in the matter.1
ART. 91. The appeals mentioned in article 87 lie against the rulings of courts or judges inhibiting themselves from taking cognizance of a question.
ART. 92. After the ruling by which a court or judge shall have inhibited himself or itself from taking cognizance of a matter has been agreed to or made final, the proceedings shall be forwarded to the judge or court which interposed the inhibition, with a citation of the parties to appear before him or it within fifteen days and assert their rights.
ART. 93. If the inhibition should be refused, the decision shall be communicated to the judge or court which interposed it, with certified copies of the instruments filed by the parties in interest and by the representative of the department of public prosecution, in a proper case, and anything else which may be considered advisable.
ART 94. In the communication which the judge or court sought to be inhibited, addresses in the case of the foregoing article, he shall demand an answer in order to continue the proceedings, if allowed to do so, or to forward the record of the same to the proper court for the decision of competency.
ART. 95. After the communication referred to in the foregoing article has been received, the judge or court which interposed the The decision must declare whether the inhibition is proper or not, and the judge illhibited can not declare that the competent court is a third one which has not taken Part in the question.-Decision of Deeembere,8, 1877.





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inhibition shall, within three days, make an order without further proceedings insisting on or abandoning the inhibition.
ART. 96. The appeals mentioned in article 87 lie against a decision desisting from an inhibition.
ART. 97. After the decision by which the judge or court interposing the inhibition desists therefrom has been consented to or becomes final, it shall be communicated in writing to the one sought to be inhibited, together with the proceedings taken, in order that it may be attached to the record thereof and the proceedings continued.
ART. 98. If the judge or court issuing the writ of inhibition should insist on the inhibition, he or it shall communicate the same to the judge sought to be inhibited, and both shall forward by first mail their original proceedings to the superior court which is to determine the competency.
ART. 99. Questions of competency shall be decided1. Those arising between municipal judges of their respective judicial districts, by the judges of first instance.
2. Those arising between judges of first instance and municipal judges who exercise their jurisdiction within the respective territory, with the exception of those comprised in the foregoing number, by the civil chambers of the audiencias.
3. Those arising between judges of first instance or other judges or special courts existing in the respective territory, whether among themselves or with another of a different jurisdiction, by the civil chambers of the audiencias.
4. Those arising between the said judges or special courts, among themselves or with others of a different jurisdiction, when any of the contending parties holds an office within the territory of the audiencia of Puerto Prineipe or that of Porto Rico, by the civil chamber of the audiencia of Habana.
5. All other cases, by the third chamber of the supreme court.
ART. 100. The transmission of the records of proceedings shall always be made with a citation to the parties to appear within ten days, if the records are to be forwarded to the court of first instance, within fifteen days, if to be forwarded to the andencia, and within sixty, if they are to be transmitted to the supreme court.
When the transmission of the record of the proceedings is to be made to the supreme court, a certified copy thereof shall be forwarded.
ART. 101. After the record has been received by the court, it shall be delivered for a period of three days to the jwonotor ,/scal, and in view of his report the judge shall render his decision within a similar period, if the parties should not have appeared.
If said parties have appeared, they shall be cited to be present within a period not to exceed six days, and shall in the meantime have access to the records in the clerk's office.
Should they appear on the (lay fixed, they or their attorneys shall





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be heard, and within three days thereafter a decision shall be rendered
deciding the question of competency.
Against this decision there shall be no remedy whatsoever, except an
appeal for annullnent of judgment for breach of form in actions of
unlawful detainer.
AnRT. 102. As soon as the audiencia or the supreme court receives
the record of proceedings, it shall be delivered to the relator' in
order that he may prepare an abstract thereof as soon as possible.
ART. 103. After the abstract has been prepared, it shall be delivered,
together with the record, to the public prosecutor, in order that he
may make his written report thereon within the period of four days.
ART. 104. If the parties, or any of them, have appeared, the record
shall be delivered to each of them for their examination for three t days, which period can not be extended, after which they shall be
officially recovered and the day for the hearing shall be fixed.
This hearing must take place, with or without attorneys, within
eight days after the return of the records.
ART. 105. From the rulings of audiencias deciding questions of
competency the only remedy shall be an appeal for annulnuent of judgment by reason of breach of form, which shall be allowed after
the action has been definitely settled.
Against the rulings of the supreme court there shall be no further
remedy.
ART. 107. The decisions of the supreme court on questions of cornpetency shall be published within the ten days following the date of their rendition in the Gaceta de .adrid and in due time in the Coleceidn
_" erlIativa.
ART. 108. The supreme court may tax the costs of the inhibition
against the judge or eourt and against the party willfully raising or opposing it, determining, in a proper case, the proportion in which they shall pay the same, or whether they are to be paid by the parties exclusivelv.
When the person who has raised the question of competency is
included within the provisions of the second paragraph of article 78,
all the costs shall be taxed against him.
The audiencias and judges of first instance may make the same declarations when they decide questions of cbmpetency.
Should they not make any special taxation of costs, those arising in
the question of competency shall be considered as defrayed by the
Government (de oflco).
'The person appointed in each superior court to make the briefs of the causes.1 ,cHeicke, Diccionario de Legislacidn y Jmispredeocia.
,In accordance with the provisions of this law, the taxation of costs against the
litigant and the municipal judge is proper when they willfully and improperly raise and sustain an inhibition, giving the law an interpretation against its spirit and that of the constant jurisprudence of the supreme court, to which they should have conlormed.-Decisio of July 3, 1884.





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ART. 109. The court which may have decided the question of competency shall forward the cause and the proceedings had before it, for decision to the judge or court which has been declared competent, with a certificate of the judgment rendered, and shall inform the one considered incompetent thereof.
Said court shall also see that its decisions relating to costs be enforced, and shall, after the taxation thereof, issue the proper orders for the purpose.
ART. 110. When the question of competency between two or more judges or courts should be negative, by reason of the refusal of all of them to take cognizance of a cause, the common superior court or the supreme court, in a proper case, shall decide the question of competency, the same procedure that is prescribed for other questions of competency being pursued.
ART. 111. The questions of competency or of powers arising between two chambers of a court, shall be decided by the chamber of administration of the same, the public prosecutor being heard in writing, without any other proceeding and without further remedy, unless it be an appeal for annulment of judgment, when proper, from the definite judgment of the cause.
ART. 112. Questions of jurisdiction interposed by secular judges or courts, against ecclesiastical judges or courts, shall be heard and decided in accordance with the rules established for appeals for review to civil courts from decisions of ecclesiastical courts.1
ART. 1f3. When ecclesiastical judges or courts consider that jurisdiction over a matter pending before secular courts or judges belongs to them, they may issue a writ of inhibition, and should said courts not inhibit themselves they may complain to the immediate superior of the said civil courts or judges, who, after hearing the representative of the department of public prosecution thereupon, shall decide what he may consider proper.
Against this decision there shall be no remedy whatsoever.
ART. 114. The inhibitions and declinatures shall stay all proceedings until the question of competency is decided, except in the case referred to in the foregoing article.
During the stay of proceedings, the judge or court inhibited may, at the instance of a legitimate party, take any steps which may be absolutely necessary in his or its judgment which, if delayed, would cause irreparable injury.
ART. 115. All proceedings had before the decision of the questions
'Becurso defuerza en conocer: The complaint made by a person who considers himself unjustly treated by an ecclesiastical judge to a secular judge, imploring his protection, and requesting that the former be ordered to repair the injustice done the appellant. -Novisima Recopilaci6n, book 2, title 2, law 1.






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of competency, shall be valid without requiring ratification by the judge
or court which is declared competent.'

SECTION IV.--Remedy of complaint against administratve authorities.
ART. 116. The governors-general of the islands of Cuba.and Porto
Rico are the only authorities which may raise questions of positive or negative competencies in the name of the administration against superior or inferior courts exceeding their jurisdiction, in cases where
they invade the powers pertaining to administrative officials.2
ART. 117. Positive or negative questions of competency which the
administration may raise against judges or courts, shall be heard and determined in the manner prescribed by the laws and regulations
relating thereto.
ART. 118. Judges or courts can not raise questions of competency
against the officials of the administrative service.
Nevertheless, they may maintain the jurisdiction and powers vested
in them by the constitution and laws, and they may complain against the invasions of said authorities, by means of appeals to the Government.
ART. 119. Remedies of complaint may be sought1. At the instance of the party injured.
S~A 2. At the instance of the department of public prosecution.
3. Officially (de qftcio).
ART. 120. The chambers of administration of the audiencias and
that of the supreme court only may seek the remedy of complaint
against the invasions of the administration in judicial powers.
ART. 121. Municipal courts and those of first instance, when their
powers are invaded by the administrative authorities, shall inform the chamber of administration of the audiencia thereof, in order that the
latter may seek the remedy of complaint, if it considers it proper.
For this purpose the municipal courts shall forward to those of first
instance of their judicial district the record of the proceedings containing the facts relative to the abuse of power committed by the agent.
of the administrative service, and the latter shall forward the same
with their report to the proper audiencia.
'(a) Judges of ordinary as well as of the privileged jurisdiction must bear in mind
the jurisprudence established by the supreme court in decisions of questions of competency and conform thereto and not act in contravention of jurisprudence already
established for cases of the same character.-Deision of May 24, 1862.
(b) Decisions of the supreme court, besides deciding the concrete questions to which
they refer, must serve as rules to judges in similar cases, and the latter shall not be permitted to insist on their own particular rulings in order to raise or prosecute questions of competency against the express and decisive declarations of said court.Decision of fanuaIy 30, 1861.
IThis precept was subsequently confirmed by the princia. law of 1882, axticle 27,
and by the Royal decree of November 28, 1883.





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K When the proceedings have been initiated in the courts of first instance, they shall be forwarded directly to the audiencia.
If they should have been instituted in the chambers of justice of the faudiencias or of the supreme court, they shall be referred to the respective chamber of administration after their conclusion.
ART. 122. The chambers of administration of the audiencias, after receiving the proceedings referred to in the foregoing article, or in view of the proceedings commenced or prosecuted before them, and that of the supreme court, in a proper case, shall forward the same to the department of public prosecution for a report thereon with precedence over everything else.
ART; 123. In view of said report, and after completing the proceedings, if necessary, the chambers of administration of the audiencias, or that of the supreme court, in a proper case, shall decide whether the remedy of complaint should or should not be sought.
If they decide that said remedy should be sought, they shall do so in a statement containing the reasons, unless they should accept the report of the department of public prosecution without any other addition.
ART. 124. The Govermnent shall decide these disputes in the manner prescribed in the laws and regulations.'

TITLE III.
APPLICATIONS TO CIVIL COURTS FOR MODIFICATION OF ACTIONS OF ECCLESIASTICAL COURTS.'
ART. 125. An application for the modification of the action of an ecclesiastical court may be made when an ecclesiastical judge or court hears, or attempts to hear, a secular cause not subject to ecclesiastical jurisdiction, or attempts to execute any judgment, by attachment or sale of property, pronounced in any matter within his or its jurisdiction, without seeking the aid of the ordinary jurisdiction.
ART. 126. The audiencias of Cuba and Porto Rico shall pass on applications for the modification of the action of the Nunciature or of the higher ecclesiastical tribunals of the court; and the audiencias on those relating to the action of other ecclesiastical judges or courts of their respective districts.
Against the decisions rendered thereon by the supreme court, or by the audiencias, there shall be -no further remedy.
ART. 12 7. The following persons may apply for the modification of the action of ecclesiastical courts:
1. Those who consider themselves injured by the usurpatiofil of powers made by an ecclesiastical judge or court.
',See note to article 116.
The subsequent proceedings are indicated in the organic law of the judiciary.
2See note to article 112.





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2. The public prosecutors of the audiencias at their own instance or
upon the request of that of the supreme court.
ART. 128. The municipal public prosecutors (Aqscales), deputy public
prosecutors (proniotores fiscale,), and the judges and courts of the ordinary jurisdiction can not directly make application for the modification of the action of an ecclesiastical tribunal.
When the above-mentioned officials should learn that some ecclesiastical judicial authority has interfered in any matter foreign to its A jurisdiction, they shall apply to the public prosecutors of the audiencias
or to the one of the supreme court, according to their respective powers, furnishing the data and information they may have in order that they
may make the application, should they consider it proper.
ART. 129. Persons who consider themselves injured by an ecclesiastical judge or court, and who desire to make an application for the modification of his or its action, shall do so in the manner prescribed
by this law.
ART. 130. The department of public prosecution shall make the
application directly and without any preparation whatsoever.
ART. 131. The person injured shall prepare the application before
the ecclesiastical judge or tribunal, requesting, in a signed petition, that said ecclesiastical court desist in the hearing of the matter and forward the record or the proceedings already had to the competent judge, stating that if this be notdone, royal protection against his
action will be sought.
ART. 132. When the ecclesiastical judge or court should deny the
petition made in accordance with the foregoing article, the person injured may demand a certified copy of the ruling of denial, and after it has been obtained the application shall be considered as prepared.
ART. 133. If the eclesiastical judge or court should refuse to issue
said certificate, or not issue an order desisting from hearing the matter, the person injured may file a complaint in the audiencia within the territory of which the former exercises his or its jurisdiction, in
accordance with the provisions of this law.
ART. 134. The court before which the complaint is made, if competent to pass upon the application, shall order the ecclesiastical judge or court to deliver the certificate to the appellant within three days after the receipt of the royal order addressed to him for that purpose.
ART. 135. If the ecclesiastical judge or court should not comply with
the order mentioned in the foregoing article, a second royal order shall be sent to the same, threatening said ecclesiastical judge or court with
the penalty prescribed for this case in the Penal Code.AnT. 136. If the second royal order should not be obeyed, the court
taking cognizance of the application shall order the judge of first
See article 388 of the Penal Code for Cuba and Porto Rico.
5190-3





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instance of the judicial district in which the ecclesiastical judge or tribunal resides, to recover the record of the proceedings and forward the same, and immediately begin the institution of the proper criminal action.
In such case the application for modification of the action of the ecclesiastical court shall be considered as made by the transmission of said record.
ART. 137. When proof of the denial decreed by the ecclesiastical judge or tribunal has been presented before the proper court, or when the application has been directly made by the department of public prosecution, a decision shall be rendered admitting or denying the admission of said application.
ART. 138. The court shall order the admission when there are reasons leading it to believe that the ecclesiastical judge or tribunal has gone beyond the limits of his or its jurisdiction and powers. Otherwise it shall declare that the appeal was not well taken.
ART. 139. In the same order in which the court admits the application, it shall require by royal order that the ecclesiastical judge or tribunal transmit the records within three days, unless they should already be before the court as a consequence of the fulfillment of the prescriptions of article 136.
ART. 140. In the royal order issued in accordance with the provisions of the foregoing article, the ecclesiastical judge or tribunal shall be requested to cite the parties to appear within ten days, if willing, which period can not be extended, before the court hearing the application, for the purpose of asserting their rights.
ART. 141. If the parties appear by virtue of the provisions of the foregoing article, they shall be considered as parties to the application. Should they not do so, the application shall be heard without their attendance in the same manner and with the same effect as if they had been present.
ART. 142. The ecclesiastical judges and courts may cite their respective prosecuting attorneys to appear as parties before the ordinary jurisdiction.
The said ecclesiastical judges or courts shall have the same character of parties when they appear at the hearing of the application to sustain their acts and competency.
ART. 143. If the ecclesiastical judge or court should not forward the records of the proceedings demanded of him, the provisions of article 136 shall be observed.
ART. 144. If the judge of first instance, in compliance with the provisions of article 136, should forward the record to the court, he shall order notice thereof to be given to the parties thereto, citing them to appear for the purposes prescribed in article 140.
ART. 145. After the records of the proceedings have been for-





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warded by the judge of first instance, in accordance with the provisions contained in the preceding articles, the application shall be considered as admitted by the mere fact that said record is before the court of competent jurisdiction.
ART. 146. In any case, after the records have been received by the audiencia, the application shall be heard and determined in themanner prescribed in this law for appeals upon incidental issues.
ART. 147. The representative of the department of public prosecution shall also be a party to the applications not made by the same, and he must in all cases attend the hearing thereof.
ART. 148. The court shall render a decision within eight days following the hearing, limiting itself to the following declarations:
1. That the application is not well taken, taxing the costs against the person making it and ordering that the record be returned to the ecclesiastical judge or court for the continuation of the proceedings according to law. In no case can the costs be taxed against the department of public prosecution.
2. That the ecclesiastical judge or court has wrongfully assumed jurisdiction in the matter, and ordering the same to vacate any impositions or punishments he or it may have imposed. In such case the
costs may be taxed against the ecclesiastical judge or court, if he or it should, with well-known temerity, have assumed powers and jurisdiction which said ecclesiastical judge or tribunal did not have.
This order shall be communicated in writing to the ecclesiastical judge or court.
ART. 149. A report of every decision declaring that an ecclesiastical judge or court has wrongfully assumed jurisdiction shall be made to the government, a copy of said decision being also forwarded.
ART. 150. When it should be declared that an application is not well taken, the records of the proceedings shall be returned to the ecclesiastical judge or court, with the proper certificate, in order that he or it may proceed in the matter according to law.
ART. 151. After the return of the records of the proceedings, the costs shall be appraised and taxed. The audiencia shall issue the proper orders for their collection by judicial compulsion.
AnT. 152. If it be declared that the ecclesiastical judge or court has wrongfully assumed jurisdiction, the records of the proceedings
shall be forwarded to the judge of competent jurisdiction, and the parties who have appeared before the court shall be cited to appear before the competent judge, the ecclesiastical judge being given written notice thereof.





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TITLE IV.
CONSOLIDATIONS.
SECTION I.- Consolidat n of actions.

ART. 153. The plaintiff may consolidate in his complaint as many causes of action as he may have against the defendant, even though they proceed from different titles, provided that said actions are not incompatible with each other.
ART. 154. The simultaneous exercise of two or more causes of action in one and the same action shall be incompatible, and they can not, therefore, be consolidated, in the following cases:
1. When said causes of action mutually exclude or are antagonistic to each other, to such an extent that the selection of one prevents the exercise of the other or renders it invalid.
2. When the judge who is to take cognizance of the main action should be incompetent, by reason of the matter or amount in litigation, to take cognizance of the consolidated actions.
3. When, in accordance to law, the causes of action must be heard and decided in actions of a different character.
ART. 155. Causes of action which by reason of the amount litigated are subjects of oral actions, may be joined in actions of greater or of lesser import.'
In such cases the competency of the judge and the kind of declaratory' action to be brought shall be determined by the accumulated value of all that may be-the object of the complaint.
APT. 156. Causes of action against several persons, or by several per ]ons against one, arising from the same source of title or based upon the same cause of action, may be joined and brought in one action.8
IMfayor cuantia: Greater import. These actions are such as involve interests valued at more than 3,000 pesetas, questions relating to political or honorary rights, those in which the interest involved can not be appraised or determined,. personal exemptions and privileges, filiations, paternity, and other questions involving the civil status and condition of persons.
Afenor cuantia: Lesser import. Actions involving interests of over 250 and not exceeding 3,000 pesetas. -Alcubilla, Diccionario de la Adrninistra(ien espahola. SJTuicio declarativo: That involving doubtful and controverted rights which must be judicially decided.-Esriche, Diecionario razonado de legislaci6n y jursprudencia. Article 156 is limited to permitting a consolidation when one person has several causes of action against another, and when several persons have a cause of action against one person, fixing the kind of causes of action which may be joined in either case, without determining the effects of the consolidation; and article 159 provides that all the causes of action must be heard in the same suit and decided by the same judgment. Therefore, there is no appeal for the violation of article 156 when taken





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ART. 157. The consolidation of actions shall not be permitted after answer to the complaint has been made, but the plaintiff reserves the right to institute the proper independent actions.
ART. 158. If, before answer is made, the complaint be extended in order to consolidate new causes of action in addition to those already included in the complaint, the period of time to answer -shall be counted from the time of the filing of the extension of the complaint.
ART. 159. When the consolidation of causes of action can take place and is made at the proper time by the plaintiff, it shall produce the
effect of their being heard in one and the same action and being decided in one and the same judgment.

SECTION II.-(Jonsoidation of records of proceedings.

ART. 160. Consolidation of records of proceedings may only be ordered at the instance of a proper party to the action.
Proper parties for this purpose shall be those who may have appeared as litigants in any of the causes, the consolidation of which is desired.1
ART. 161. The consolidation may be ordered in the following cases: 1. When the judgment to be rendered in one of the actions, the consolidation of which is requested, would raise the exception of res judicata in the other.
2. When an action is pending before the competent court on the same matter which is the object of that instituted subsequently.
3. When bankruptcy or insolvency proceedings are pending and the property of the insolvent or bankrupt is the subject of the action instituted.'
4. When testamentary or intestate proceedings are pending and the property of the estate is the subject of the action instituted and
under the wrongful assumption that it grants to one colitigant the right to maintain an action which another may have abandoned after having brought it.-Decision of May 18, 1891.
The causes of action can not be consolidated when their origin and the persons against whom they are directed are different.-Decision of April 14, 1886.
The consolidation can not take place when the actions which the plaintiff exercises arise from different private contracts entered into by him with different fire insurance companies.-Decision of April 20, 1887.
1Records of proceedings can not be consolidated when they relate to acts which are not connected with each other.-Decision of Kay 9, 1864. The decree ordering the consolidation of appeals of which a court of justice is taking cognizance is not final. -Decision of March 29, 1889. The decision declaring the consolidation of two appeals not proper, is not final for the purposes of appeals for annuinent of judgment.-Decision of February 3, 1888. 'The law does not make any distinction between voluntary and involuntary bankruptcy for the purposes of the consolidation of proceedings pending, which involve the property of the bankrupt.-Decis ion of March 12, 1869.





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said action is declared to be subject to consolidation with said proceedings.1
5. When the unity of the action would be destroyed if the actions should be prosecuted separately.
ART. 162. The unity of the action is understood as destroyed, for the purposes of the last paragraph of the foregoing article1. When there is identity of persons, things, and causes of action between two actions.
2. When there is identity of persons and things, even though the causes of action be different.
3. When there is identity of persons and causes of action, even though the things be different.
4. When the actions are based upon the same cause, even though they be instituted against many persons, thereby causing diversity of persons.
5. Then the actions are based upon the same cause, even though persons and things be different.
6. When there is identity of causes of action and of things, even though the persons should be different.'
ART. 163. The consolidation may be requested at any stage of the action before the citation for final judgment.
ART. 164. Ordinary actions, executory actions,3 summary proceedings relating to possession (irterdictos), and in general all actions and proceedings of the same kind may be consolidated, provided that any of the causes mentioned in article 161 is attendant.
ART. 165. Neither records of proceedings had in different instances nor ordinary proceedings ready for judgment can be consolidated.
ART. 166. Executory actions dan neither be consolidated with each
1The law requires, in order to permit the consolidation, that the action be brought against the property involved in the testamentary proceedings and that it be of those which can be consolidated; and if according to this rule, the action against the testamentary property may be consolidated to said proceedings, such is not the case when said action does not affect property which does not belong to the estate, as is the case of property sold after the period agreed upon has elapsed.-Decision of Janu ry 3, 1872.
A personal action against a debtor can not be joined to the testamentary proceedings of his deceased wife. -Decision of January 3, 1872. 2The unity and identity of a thing in litigation are indispensable, among other requisites, for a consolidation under the same order of procedure; but it is not a doctrine of jurisprudence that the consolidation of actions is always proper whenever there is said unity and identity.-Decisions of fay 3, 1871, and January 25, 1875. The consolidation can not take place when the actions are terminated.-Decision of May 12, 1871.
',Juiao ejecutivo: An action the purpose of which is to enforce what is already determined or which appears from a title which has the same force of law as a judicial decision.-E8criche, Diccionario de Legislaci6n y Jurisprudencia.





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other nor with proceedings for the settlement of estates' when only the property mortgaged is the object thereof, excepting the case mentioned in articles 147 or 141 of the mortgage law respectively in
force in Cuba and Porto Rico.
ART. 167. A final order of public sale is not an obstacle to the consolidation 6f executory actions. For this purpose such actions shall not be considered as closed until the execution creditor has been paid,
or until the insolvency of the execution debtor is declared.2
VART. 168. If the same judge is taking cognizance of the actions
sought to be consolidated and the records thereof are kept by the same clerk, the judge shall order that the clerk make a statement of
all of said records.
If said records are kept by different clerks, the judge shall order
that said clerks include the records in one and the same statement.
ART. 169. For the purpose of making the statement referred to in
the foregoing article, the parties shall be cited to appear at a fixed day
and hour, within eight days following the order.
ART. 170. After the statement is made, and after hearing the counsel of the parties thereupon, if they should have appeared, the judge shall, within the two days following, render the decision he may consider proper. This decision may be appealed from for review and for
a stay of proceedings.
ART. 171. If the actions are prosecuted before different courts, the
consolidation shall be requested before the judge competent to take
cognizance of all of them.
This competency shall be vested in the judge or court before whom
the oldest action is pending, with which the latter actions shall be
consolidated.
From this rule are excepted testamentary, intestate, general assignment, and bankruptcy proceedings, with which all other records of
proceedings shall be consolidated when proper.'
'uiio universal 6 general: The proceedings in which all the actions and rights which
all creditors have against the property of another are heard and determined, such as bankruptcy, testamentary, and intestate proceedings.-Escriche, Diccionario de
Legislaci6n y Jurisprudencia.
IThe provisions contained in this article shall not be an obstacle to the consolidation of the records of executory actions when proper if a final order of public sale has been made, and the proceedings shall not be considered closed until the execution creditor has been paid in full or the execution debtor has been declared insolvent.-Decision of Ma(y 10, 1887.
"The general provisions of this law relating to the consolidation of records are
applicable to the consolidation of proceedings for the settlement of estates. If there should arise a question between testamentary and bankruptcy proceedings, the judge of the proceeding which has been pending longest shall take cognizance of both.Decision of April 17, 1889.




40 LAW OF CIVIL PROCEDURE.
ART. 172. The written request for the consolidation shall be accompanied by as many copies thereof as there may be parties to the action in which the request is made, to whom said copies shall be delivered, in order that within three days thereafter they may object to said request, if they consider it advisable.
ART. 173. After the expiration of the period above mentioned the judge shall, without further proceedings, render a decision allowing or denying the consolidation, whether written objections thereto have been made or not.
There shall be no remedy whatsoever against the decision allowing the consolidation. An appeal for review only shall lie against the decision denying the consolidation.
ART. 174. When the judge considers the consolidation proper, he shall, in the same decision, order a communication addressed to the one hearing the causes, requesting the records. To this communication there shall be attached a certified copy of such data as may be considered by the judge as sufficient to furnish information of the reasons on which the request for consolidation is based.
ART. 175. When the requisition and certificate have been received by the other judge, within a period of three days, which can not be extended, a hearing before him shall be had of all matters which have arisen in the action.
AnRT. 176. Upon the expiration of said period, the records shall be officially recovered, if necessary, and the judge shall render a decision granting or denying the consolidation.
The decision granting the consolidation may be appealed from for review only, but against the decision denying the consolidation there shall be no remedy whatsoever.1
AnT. 177. If the consolidation has been granted, the record shall be forwarded to the judge who may have requested it, and the parties shall be cited to appear within fifteen days and assert their rights.
ART. 178. If the consolidation should be denied, the judge upon whom requisition has been made shall communicate said denial without delay to the judge requesting the consolidation, attaching to his communication a certificate of the data which he may consider necessary to justify his decision, with a request for an answer, in order to continue proceeding in the action, if permitted to do so, or to forward the record to the person who is to decide the question.
ART. 179. The judge who may have requested the consolidation, as soon as he receives said communication, shall cease hearing the action without any further proceedings, if he finds that the reasons advanced in support of the denial are well founded, and shall answer the other 'A decision, whether granting or denying the consolidation, is not final for the purposes of an appeal for annulhnent of judguent.-Derisiois of S(ptember 28, 1866, October 15, 1868, January 12, 1870, September 29, 1871, and September 2W, 1872.




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judge without delay in order that he may continue proceeding in the action.
This decision may be appealed from for review only.
ART. 180. If the judge who is requested to transmit the record should refuse to do so, basing his refusal upon a belief that the consolidation should be made with the actions pending before him, the requesting judge, after receiving the communication and certificate, shall, within the period of three days, which can not be extended, hear. the party who has requested the consolidation, after which, or after recovering the records, he shall render the decision thereupon which he may consider proper.
ART. 181. In the case of the foregoing article, if the judge requesting the consolidation should believe that said consolidation should be made with the records pending in the other court, he shall order said consolidation made in the manner prescribed in article 17'T.
This decision may be appealed from for review only.
ART. 182. If the judge requesting the consolidation should find that the reasons advanced by the other for his refusal or claim are unfounded, he shall forward the records to the proper superior authority, with a citation of the parties, and shall notify the other judge in order that he may also transmit his records to the same authority.
By said superior authority is understood the authority having jurisdiction to decide questions of competency.1
ART. 183. The subsequent steps in this issue shall be according to the provisions prescribed for questions of competency, but the department of public prosecution shall not be heard therein.
ART. 184. The hearing of the actions involved in the consolidation shall be suspended during the pendency of the request for consolidation.
ART. 185. If neither of the judges should desist from their purpose, the suspension shall not be raised until the proper superior may have rendered his decision'.
However, the suspension shall be considered raised when any decision has been rendered which may be appealed from for review according to articles 173, 176, 179, and 181, without prejudice to what may be proper after a decree to carry out the decision has been issued in view of the appeal taken.
ART. 186. By virtue of the consolidation, the proceedings consolidated shall be continued in one and the same action and shall be determined in one judgment.
ART. 187. When two or more actions are consolidated, the course of the one nearer completion shall be suspended until the others arrive at the same stage.
From a ruling deciding a question of consolidation there lies only an appeal for breach of form, as in cases of questions of competency.-Decision of May 27, 1886.




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This rule is not applicable to consolidations with proceedings relating to the settlement of estates, in which cases those consolidated thereto shall immediately be advanced to the same stage.

TITLE V.
CHALLENGES.
SECTION I.- Generc provisions.
ART. 188. Justices and judges, whatever be their rank or hierarchy, and assessors' to municipal judges who substitute those of first instance, and subordinate officials of superior and inferior courts, may be challenged only for a legitimate cause.'
ART. 189. The following are legitimate causes of challenge:
1. Relationship by affinity or consanguinity within the fourth civil degree with any of the litigants.
2. The same relationship within the second degree with the attorney of any of the parties to the action.
This shall be understood without prejudice to the prohibition which is imposed upon attorneys to act as such in actions in which any of their relatives within the same degrees are to act as judges.
3. To be or have been denounced by any of the parties as the principal, accomplice, or accessory in a crime, or as a principal in a misdemeanor.
4. To have been the counsel for any of the parties, to have made a report on the suit as an attorney, or to have taken part therein as the public prosecutor, or as an expert or witness.
5. To be or have been the guardian, or having been under the guardianship of any person who is a party to the action.
6. To be or have been the denouncer or private accuser of the challenging party.
7. To have an action pending against the challenging party.
8. To have a direct or indirect interest in the action, or in another similar action.
9. Intimate friendship.
10. Manifest enmity.
'Assessors to municipal judges: The municipal judges or their substitutes take the place of judges-of first instance and examination in accordance with article 69 of the organic law of the judicial service of September 15, 1870. If they are not attorneys they require an assessor who is an attorney, in accordance with article 71.-Alcubilla, Diccionario de la administraci6n espaiola.
Assessors to a judge are persons possessed of knowledge in the law who are appointed to advise and direct the decisions of the judges in certain inferior courts.-Sweet's Law Dictionary.
2An appeal for anullment of judgment does not lie from a decision on the challenge of judges, because they do not have the character of definite decisions, nor do they terminate an action, nor render its continuation impossible.-Decision of Jcnuary 19, 1885.




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ART. 190. Justices, judges, and assessors in whom any of the circumstances mentioned in the foregoing articles is attendant, shall abstain from hearing the matter without waiting to be challenged.
The same rule shall apply to the subordinate officials of audiencias and courts in similar cases.
There is no appeal whatsoever frpm these resolutions, without prejudice to the provisions of article 216.
ART. 191. Only legitimate parties to an action or persohs having a right to be such, and who appear in the matter involving the challenge, shall have a right to interpose a challenge.1
ART. 192. The challenge shall be interposed in the first instrument submitted by the challenging party, if the cause on which it is based is prior to the action and he has knowledge thereof.
If subsequent thereto, or even though prior to the same, the challenging party should not have had knowledge thereof until after the institution of the action, he must interpose said challenge as soon as the cause conies to his notice.
Should this not be done, the challenge shall be disallowed.
ART. 193. In no case shall the challenge be interposed after the parties have been cited for judgment in first instance, nor after the hearing of the case has begun before the audiencia.
Neither shall said challenge be interposed in the proceedings for the execution of the judgment, unless it is based on legitimate causes which it is well known have arisen after judgment was rendered.
SECTION II. - Challenge of justices, judges of first instance, and assessors.
ART. 194. The challenge of the presiding and associate justices of the supreme court and of the audiencias, as well as of judges of first instance and municipal judges and their assessors, in a proper case, when they substitute those of first instance, shall be made in writing and subscribed by an attorney, by the solicitor when one takes part in the proceedings, and by the challenging party if able to sign and if he be at the place where the action is pending.
If the challenging party should not be present, the challenge shall be subscribed by the attorney and solicitor only, if the latter should be expressly authorized to challenge.
In any case the cause of the challenge shall be clearly and explicitly stated.'
1If the instrument requesting a challenge does not contain the signature of the attorney and that of the person challenging, it can not be considered as made.-I)ecision of February 7, 1862.
2If the presiding judge of an audiencia attends the hearing of a case, if there be cause for challenge, he must be challenged as soon as he is seen to preside over the chamber.-Decision of November 9, 1863.
See amendments, etc., made for Cuba in orders Nos. 166 and 242, series of 1900, in Appendix.




LAW OF CIVIL PROCEDURE.


ART. 195. If the litigant interposing the challenge be at the place where the action is pending, said challenge must be sworn to by him, without which requisite it shall not be heard.
ART. 196. Said written challenge shall be accompanied by as many copies of the same as there are other litigants, to whom they shall be delivered at the time the first order made is served upon them, for the purposes mentioned in articles 514 et seq.1
ART. 197. If the judge challenged should consider the cause of challenge proper, being true and included among those mentioned in article 189, whatever be the form the challenging party may have adopted, said judge shall immediately render a decision allowing the challenge and shall order that the record be transferred to whomsoever is to take his place.
If the challenge should be interposed against a justice, if he considers the cause alleged as true, and the chamber deems it well taken, it shall render a decision allowing the challenge.
There shall be no remedy whatsoever against these decisions, without prejudice to the provisions of article 216.'
ART. 198. The decision admitting or denying the challenge shall be communicated only to the solicitor of the challenging party, even though the latter be at the place where the action is pending and has signed the written challenge.
ART. 199. If the challenged party should not consider himself included in the cause alleged for the challenge, he shall disallow it, and a separate record shall be ordered made at the cost of the challenging party for the hearing of the issue.
Said record shall contain the original written challenge with the proceedings had thereupon, a memorandum thereof being inserted in the main record. '
ART. 200. During the hearing of the challenge the party challenged can not take part in the main action nor in the hearing of the said challenge, and shall be substituted by the proper judge, according to law.
ART. 201. The interposition of the challenge shall not suspend the course of the action, the proceedings of which shall be continued until the action is ready for citation for final judgment, at which stage it shall be suspended until the challenge is decided, if it has not yet been determined.
ART. 202. For the purposes of the foregoing article and of article 197, when the party challenged is a judge of first instance, he shall transfer the principal record and the separate record of the challenge' to the judge who is to hear the latter, in accordance with the last paragraph of the following article.
'See in Appendix order -o. 242, series of 1900, for change made for Cuba. 'A judge who, after disallowing a challenge shall not order a separate record made and shall continue hearing the case, rendering final jaIgnient, violates this provision and that of the following article. -Decision of December 17, 1886.




LAW OF CIVIL PROCEDURE. 45

ART. 203. The following shall hear and determine challenges:
If the party challenged should be the presiding judge, or the presiding judge of a chamber of an audiencia or of the supreme court, the senior presiding judge of the chamber; and if the one challenged should be the senior, then the one next below hin in length of service. If the party challenged should be an associate justice of an audiencia or of the supreme court, the senior associate justice of his chamber; and if the one challenged should be the senior justice, the one next below him in length of service.
If the party challenged should be a judge of first instance or a person acting as such, the substitute judge of the court, with the concurrence of the assessor, should the former not be an attorney, unless there should be another judge of first instance in the same town, in which case the latter shall hear and determine the challenge; should .there be three or more, the one senior to the judge challenged, and if the latter should be the senior judge, then the junior judge.
ART. 204. After the separate record has been prepared, a copy thereof shall be given to the opposite party in the action, in order that within three days he may allege what he may deem proper with regard to the challenge.
If there should be two or more opposite litigants, said period of time shall be common for all of them, and they shall allege what they may deem proper in view of the copy of the written challenge.
ART. 205. After the foregoing copy has been served, or after the period has elapsed without the persons having appeared to assert their rights, evidence on the issue shall be received for a period of ten days, which can not be extended, when the challenge is based on facts not proven and not admitted by the party challenged.
In all other cases the challenge shall be heard and determined in the manner prescribed for incidental issues.
ART. 206. Issues of challenge shall be decidedIf the party challenged-were the presiding judge, or a presiding judge of a chamber of the supreme court or of an audiencia, by the court in bane of which the challenged party is a member.
If he were an associate justice, by the chamber to which he belongs.
If the party challenged were a judge of first instance, by the judge hearing the challenge issue, in accordance with the last paragraph of article 203.
ART. 207. The declaration admitting or disallowing a challenge shall be made in a written decision within three days.
ART. 208. There shall be no remedy whatsoever against the decisions rendered by the supreme court.
From those rendered by an audiencia, an appeal for annulment of judgment only shall lie in a proper case.
Decisions rendered by judges of first instance, or by their substitutes, admitting a challenge, can not be appealed from.




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Decisions disallowing a challenge may be appealed from for review and for a stay of proceedings.'
ART. 209. After an appeal from a decision disallowing a challenge is filed and allowed, the parties shall be cited to appear before the proper audiencia within the period of ten days, for the purpose of asserting their rights; and the original separate record of the challenge shall be forwarded to the said audiencia.
ART. 210. These appeals shall be heard and determined in accordance with the procedure established for incidental issues.
ART. 211. If the challenge should be disallowed, the costs thereof shall always be taxed against the person interposing said challenge.
ART. 212. In addition to the costs mentioned in the foregoing article, the challenging party shall be fined not less than 125 or more than 250 pesetas, if the person challenged should be a judge of first instance and from 250 to 500 pesetas when the challenged party should be the presiding judge or an associ-ate justice of an audiencia.
ART. 213. If the fines respectively mentioned in the foregoing article should not be paid, imprisonment shall be imposed upon the person in default in the manner and for the time prescribed by the penal code for criminal causes.
ART. 214. Upon the disallowance of the challenge, as soon as the ruling has become final, the case shall be returned to the original judge in order that he may proceed with the hearing thereof in accordance with law.
ART. 215. If the challenge be allowed, and the party challenged should be the presiding judge or an associate justice of a court, he shall not take further part in the hearing of the proceedings.
If the challenged party should be a judge of first instance, he shall also cease taking further part in the action, the hearing of which shall be continued by the judge to whom the records may have been transferred in accordance with the provisions of article 203.
If the judge challenged has ceased to perform his duties in the original court, on account of a transfer or for any other reason whatsoever, the case shall be returned to the said court in order that the hearing thereof may be continued by the new judge who may have taken the place of the one challenged.
ART. 216. If a judge of first instance shall voluntarily, or at the instance of a legitimate party, abstain from proceeding in an action, in
A decision confirming a declaration that the challenge of a judge is disallowed does not have a final character, because it neither closes the action, nor does it make its continuation impossible.-Decision of October 19, 1889. Neither is a ruling deciding a challenge of a judge or associate justice final for the purposes of annulment of judgment-Decision of Tanuary 19, 1885. See number 7 of article 1691 of this law, which auth6rizes an appeal for annulment of judgment by reason of a violation of these provisions.




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accordance with the provisions contained in articles 190 and 197, he shall render a true report thereof to the presiding judge of the audiencia, who shall communicate the same to the chamber of administration thereof.
If said chamber should deem that the abstention is improper, it may impose disciplinary correction upon said judge, if there be sufficient cause therefor, communicating it in such case to the colonial department in order that the same may be entered in the personal record of the judge, for the proper purposes.
ART. 217. If the audiencia should reverse the decision disallowing the challenge, it shall send a copy of its ruling to the said department for the purposes of the foregoing article.

SECTION III.- Cliallenge qf municipal judges.
ART. 218. In oral and other actions of which municipal judges take cognizance in first instance, the challenge shall be interposed at the time of the appearance.'
ART. 219. In view of the challenge, if the cause alleged should be of those mentioned in article 189 and be true, the municipal judge shall allow the same, transferring the cognizance of the cause to the judge who is to take his place.
If the challenge should be disallowed, he shall enter his ruling in the record and shall also transfer the cognizance of the cause to the proper judge.
There shall not be any remedy whatsoever against these decisions.' ART. 220. For the purposes of the foregoing articles, municipal judges who may have been challenged shall be substitutedBy their respective substitutes, in towns where there is no other municipal judge.
Where there are two municipal judges, by the one not challenged.
If there should be three or more municipal judges, by the one next above him in length of service; should this seniority not be judicially determined, by the one next senior in age; and if the one to be substituted should be the oldest in length of service, by the junior one in point of appointment.
ART. 221. The secretary of the municipal judge challenged shall communicate the same to the judge who, in accordance with the provisions of the foregoing article, is to take cognizance of the question, so that he may order what he deems proper.
In the case of the second paragraph of article 219, the judge who is to pass upon the challenge shall require the parties to appear at a day and hour fixed within the next six days. He shall hear the parties at the time of said appearance, and shall at the same time receive the evi'See in Appendix order No. 242, Havana, June 18, 1900, amending this article.




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dence they may submit with regard to the cause for the challenge, when the question is a question of fact.
ART. 222. Upon the admission of the evidence, or when the same is not necessary because the question is one of law, the municipal judge substituting the one challenged shall decide, allowing or disallowing the challenge, at the same proceeding, if possible, in which case his decision shall be entered in the record to be made thereof.
Otherwise he must render his decision within two days, which shall be written immediately after the record.
ART. 223. There shall be no remedy whatsoever against a decision allowing a challenge.'
From the decision disallowing a challenge an appeal lies to the judge of first instance of the judicial district in which the court of the municipal judge challenged is situated.
ART. 224. Said appeal shall be interposed verbally at the time of the appearance, when the substitute judge renders a decision therein disallowing the challenge.
If he should make use of his privilege to defer the decision until the second day, the appeal shall be interposed at the time of said decision or within the following twenty-four hours. In such cases the appeal shall also be interposed verbally before the secretary of the court, an entry thereof being made.
ART. 225. If no appeal should be taken within the period fixed in the foregoing article, the decision shall become final.
If an appeal should be taken in time, the record shall be transmitted without delay to the court of first instance, at the cost of the appellant, and the parties shall be cited to appear.
ART. 226. As soon as the record has been received by the court of first instance, the day for the hearing shall be immediately set, and shall be within the eight days following, the parties being notified thereof if they shall have appeared, or when they do appear.
The judge shall hear the parties or any of them appearing at the hearing, and on the same day, and if that be not possible, then within the two days following, he shall render his decision thereon in writing.
There shall be no remedy whatsoever against this decision.
ART. 227. If the decision be in the affirmative, the costs shall be taxed against the appellant.
ART. 228. If the challenge be disallowed, the costs shall be taxed against the challeging party, and a fine of from 65 to 125 pesetas, shall in addition be imposed upon him with regard to which the provisions of article 213 shall be applicable.'
ART. 229. When the challenge is allowed by a final judgment, and upon the return of the record with a certificate of the decision to the
See in Appendix Cuban order No. 242 of July 18, 1900, amending this article.




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municipal court from which the appeal was taken, the subsequent proceedings in the action shall be had before the municipal judge or before the substitute who shall have heard the challenge, in accordance with article 220.
If the challenge be disallowed also by final judgment, the judge challenged shall again proceed with the action.
ART. 230. If the challenge of the municipal judge or of his substitute should occur at a proceeding to avoid litigation (aeto de coneiliacidn) said proceedings shall be considered as attempted without further action, as prescribed in article 463.
If the municipal judge, without being challenged, should voluntarily abstain from proceeding in the case on account of the attendance of any of the causes mentioned in article 189, his ordinary substitute shall continue the hearing of the proceeding to avoid litigation.
ART. 231. When a municipal judge is challenged in proceedings which he is hearing by delegation of the judge of first instance, the challenge shall be interposed before the latter in writing, in the manner prescribed in article 194.'
The judge of first instance shall forward the written challenge to the municipal judge challenged in order that he may suspend the pro'eedings and immediately report as to whether or not the cause of challenge is true; and the former shall hear and determine the issue in accordance with the procedure established in Section II of this title.
ART. 232. In the case of the foregoing article, if any injury is liable to be caused by the suspension of the proceedings, the judge of first instance shall take the action necessary at the request of a party; and if that be not possible, he shall transfer the matter to another municipal judge, or to the substitute of the one challenged.
ART. 233. If a municipal judge should abstain from proceeding in a matter which may have been intrusted to him by a judge of first instance, by reason of the attendance of some of the legal causes for challenge, he shall so state at the end of the communication of the judge of first instance and shall return it to the latter, who, if he shall consider that the cause alleged is proper, may give the same commission, without further proceedings to the substitute of the former or to another municipal judge.
SECTION IV.- Challenfge o.t bor(Idnate officials of supol'or andnf rior cotf1s.

ART. 234. The provisions of articles 194 et seq., of Section II of this title, shall be applicable to the challenge of relators,' secretaries,
See order above mentioned, in appendix.
' See note to article 102.
For a description of the duties of relators see Book II, title 22, of the Recopilaci6u de bindias.
5190-4





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clerks of chambers, and officials of the chambers of the supreme court; to relators, secretaries, and clerks of chambers of an audiencia, and to the clerks and secretaries of the courts of first instance, with the modifications established in the following articles.1
ART. 235. After the written challenge has been presented and the party presenting it has ratified it, in a proper case, the official challenged shall immediately after said challenge make a statement as to whether or not the cause alleged is true and legitimate, and shall transmit the papers to the proper person, who shall report thereon to the chamber or judge hearing the cause.
ART. 236. If the official challenged shall acknowledge the cause of challenge as true, the judge or court shall issue a written order, without further proceedings, allowing the challenge, if he deems that the cause alleged is one of those included in article 189.2
If he should consider that the cause alleged is not a legal one, the said judge or court shall disallow the challenge.
ART. 237. In such cases there shall be no remedy whatsoever against the decision allowing the challenge.
Against a decision disallowing a challenge, if rendered by the supreme court or by an audiencia, the only remedy is a petition for review before the same chamber, and if the decision were rendered by a judge of first instance, an appeal may be taken for review and for a stay of proceedings.
Upon the admission of the appeal, the original record relating to the challenge shall be forwarded to the audiencia, with a citation to the parties to appear within 10 days, the records of the main action remaining in the court.
ART. 238. When the subordinate official challenged should deny the truth of the cause alleged as a basis for the challenge, separate proceedings shall be ordered instituted in accordance with the provisions of article 199.
The party challenged may be a party thereto if he requests it, and such pertinent evidence which he may submit shall be admitted.
ART. 239. The separate challenge proceedings shall be heard:
In the supreme court and the audiencias, by the junior associate justice of the chamber hearing the proceedings in which the official was challenged, and said associate justice may delegate to the proper judge of first instance the power to carry on such proceedings in regard thereto which said justice may not be able to attend to.
In courts of first instance, by the judge hearing the main question.
ART. 240. Issues of challenge of assistants shall be decided by the same chambers or courts which are taking cognizance of the question

See in Appendix Cuban order No. 242, July 18, 1900, amending this article.
2 See order above mentioned in appendix.





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in which the said assistant is acting, without further remedy, when the decision shall have been rendered by the supreme court or by an audiencia.
Neither shall there be any remedy against the rulings of judges of first instance admitting a challenge.
Decisions disallowing a challenge may be appealed from for review and for a stay of proceedings (en ambos efeetos), the provisions of article 209 being observed.
ART. 241. In the case of the challenge of a secretary of a municipal court, the procedure prescribed for the challenge of municipal judges shall be pursued, the proceedings of challenge being heard and determined by the judge of the court in which the person challenged is performing his duties.
ART. 242. The assistants challenged, from the moment they are challenged, can not act in the respective proceedings nor in the challenge proceedings, and shall be substituted by the official of the same class, who may be senior to them in length of service, and if the official challenged should be the senior, he shall be substituted by the junior in point of appointment.
The secretaries of the municipal courts shall be replaced by their substitutes. Should they have no substitutes they shall be replaced by the person whom the judge may appoint.
ART. 243. In addition to the provisions contained in article 193, the assistants can not be challenged during the performance of any proceeding or act intrusted to them.
ART. 244. The challenge of assistants shall not suspend the course nor the decision of the cause or matter in which it has been interposed.
ART. 245. When a challenge is allowed the assistant challenged shall be taxed the cost of the issue, should he have denied the truth or legality of the cause alleged.
If a challenge should be disallowed, said costs shall be taxed against the challenging party in addition to the fees and charges mentioned in article 247.
ART. 246. As soon as a decision allowing a challenge becomes final the assistant challenged shall definitely cease taking part in any manner whatsoever in the proceedings, and the person who substituted him during the hearing of the issue shall continue acting, and the said assistant shall not be permitted to charge anyv fees whatsoever from the time the challenge was interposed.
ART. 247. If the challenge be disallowed, as soon as the decision becomes final, the assistant challenged shall reenter upon the discharge of his duties, and the challenging party shall pay him the fees for the work performed in the proceedings, without prejudice to paying the same fees to the person who may have substituted the assistant challenged.
97088





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TITLE VI.
JUDICIAL PROCEEDINGS AND PERIODS OF TIME.
SECTION I. -hJitd?.Wel _J,)Iceedflng8 i l eneral.

ART. 248. All judicial proceedings shall be written upon the stamped paper prescribed by the laws and regulations, subject to the penalties fixed therein.
Rulings which must be rendered de qcio in the cases prescribed by this law, and the proceedings for their fulfillment, shall be drafted on official stamped paper, without prejudice to payment therefor, when and in the manner proper.
AUT. 249. Judicial proceedings shall be authenticated, under penalty of annulment, by the public official who is charged with the duty of attesting or certifying to the act.
AnT. 250. The secretaries and recording clerks (escuibanos de actuac(oneh) shall make a note of the day and hour of the presentation of instruments only in cases where a time certain is prescribed therefor.
Whenever a party requests it, a receipt shall be given him on common paper and at his expense for any instrument or document delivered to said clerks, stating the day and hour of its presentation.
AuT. 251. Judicial decisions shall be rendered before the secretary or clerk charged with the duty of authenticating them.
The judges shall place their full signature on the first order made in each matter, as well as upon rulings and judgments, and their surnames on other orders of mere practice which they may render, and on the declarations and acts in which they may take part.
The judgments and decisions of an audiencia shall be signed with the full signature of the justices who may have rendered the same, and the presiding judge of the chamber shall affix his rubric to all orders.
The justice whose turn it is to prepare the case for decision (magisttadoponente) shall affix his surname to all proceedings had before him.
ART. 252. The secretaries and recording clerks shall authenticate with their full signature, preceded by the words "Before me," judicial decisions and other acts in which a judicial authority takes a personal part and the certificates or copies of papers which they may issue. Notices and other proceedings shall be authenticated with their surnames.
AUT. 253. Rulings and orders made in proceedings in which relators take part shall be signed by them with their full signatures and with a statement of their official title before the signature of the clerk.
ART. 254. The judges and, in a proper case, justices charged with the duty of preparing the case for decision, shall personally receive the declarations and shall prbside over the proceedings for the taking of evidence.




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Said justices, nevertheless, may intrust these duties to a judge of first instance, and the latter to a municipal judge, when the proceedings are to be had in a town other than at their respective place of residence.
None of said judges., however, shall be permitted to intrust these duties to secretaries or recording clerks, except in the cases authorized by this law.
ART. 255. Proceedings which can not be had within the-judicial district where the action is pending, must be committed to the judge of first instance of the district where said proceedings are to be had.
The latter shall comply with the provisions contained in the foregoing article.

SE cTIoN I.-Le/al s'ork;ng day.s and kour.

ART. 256. All judicial proceedings must take place on legal working days and during legal working hours, under penalty of nullity.'
ART. 257. Legal working days are all days of the year excepting Sundays, full religious or civil holidays, and the days when courts are ordered closed.'
ART. 258. Legal working hours are those between sunrise and sunset.'
ART. 259. Courts and judges may legalize illegal days and hours, at the instance of any party, should there be an urgent cause therefor.
For this purpose urgent causes shall be considered such proceedings in which delay may cause serious injury to the persons interested or to the good administration of justice, or which would nullify the effect of a judicial order.
The judge shall determine the urgency of the cause and shall decide what he may consider proper, without further remedy.
'The mere filing of an instrument can not be classified as a judicial proceeding for the purposes of a declaration of nullity.-Decisions of November 16, 1860, and December 12, 1861.
'The provisions of this section are explained by the decisions of Noveniber 16, 1860, and December 12, 1861, according to which in judicial terms days are to be understood as natural (lays, that, is, of the twenty-four hours between midnight of one day and that of the next, and consequently an appeal may be admitted provided that it is filed before 12 o'clock midnight on the last day of the term. According to the organic law of the judicial service courts are closed on full holidays, on the feast, days of the King, Queen, and Prince of Asturias, on Thursday and Friday of Holy Week, and on national holidays. 'If the greater portion of a judicial proceeding had taken place before sunset, and should be signed by artificial light, it would not be invalidated thereby.-Decigion of April 19, 1865.




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SECTION III.--otflcations, citations, summonses, and requisitions.

ART. 260. Notice of all orders, rulings, and judgments shall be given to the parties to the action on the day of their rendition, and should this not be possible, on the day following.
The same notice shall be given, when required, to persons referred to therein or who may be prejudiced thereby.
ART. 261. If, by reason of the length of the judgment, it should not be possible to prepare copies thereof for service within the period above mentioned, said service may be delayed for the time absolutely necessary, which period can in no case exceed five days.
ART. 262. Notices shall be served by the clerk, secretary, or official of the chamber authorized therefor, who shall read in full the order to the person upon whom service is made, and shall at the same time deliver to him a true copy thereof, signed by the recording clerk, even though said copy should not be demanded, stating the matter to which it refers.
A statement of the foregoing must be made in the proceeding.
ART. 263. The notices shall be signed by the clerk and by the person on whom service is made.
If the latter were not able to sign, a witness shall do so at his request.
Should he not wish to sign or provide a witness to sign for him, in a proper case, two witnesses summoned by the clerk for the purpose shall do so.
These witnesses can not refuse to sign under the penalty of a fine of from 15 to 65 pesetas.
ART. 264. Notices shall be served at the office of the clerk or in the place assigned in each court for this purpose, if the persons interested should appear in the same.
Should they not appear at the proper time, said service shall be made at their residence, for which purpose said residence shall be designated in the first instrument which may be filed.
ART. 265. If solicitors should not appear at the proper time in the office of the clerk or place assigned for the purpose, service shall be made upon them at their residence, but in such case the increase of costs arising from the proceeding shall be paid by them personally and can not be charged to their principals.
ART. 266. When the residence is known of the person upon whom service is to be made and at the first attempt he should not be found, whatever be the cause or the time of absence, service shall be made by writ (edduida) at the same time and without the necessity of a judicial mandate therefor.
ART. 261. Writs for notifications shall contain the following:
1. A statement of the character and object of the action or matter, and the names and surnames of the litigants.




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2. A true copy of the order or resolution which is to be notified.
3. The name of the person upon whom notice is to be served, with a statement of the reason for making it in that manner.
4. A statement of the hour at which said person was sought and not found at his residence, and the date and signature of the serving clerk.
ART. 268. Said writ shall be delivered to the nearest relative, member of his household, or servant, over 14 years of age, who may be found within the dwelling of the person who is to be served, and if no one be found there, delivery shall be made to the nearest neighbor who may be found.
The delivery shall be vouched for in the records by means of a statement containing the name, status, and occupation of the person who received the writ, his connection with the party to be served, and the obligation of the former of delivering said writ upon his return to the residence, or to inform him thereof, if said person knows his whereabouts, under a penalty of from 15 to 65 pesetas. The obligation of the party receiving the writ shall be made known to him by the clerk.
Said statement shall be signed by the clerk, and by the person receiving the writ; and if the latter should not be able to sign or not wish to do so, the provisions of article 263 shall be observed.
ART. 269. When the residence of the person to be served is unknown, or if his whereabouts is unknown by reason of his change of residence, a statement shall be made thereof and the judge shall order that the service be made by posting the writ at the usual public place and by publishing it in the Official Gazette and in the official bulletins of the provinces where there may be such.
He may also order the publication of the writ in the Gaceta de
_M1adrid when he deems it necessary.
ART. 270. The foregoing provisions relating to notices shall also be applicable to citations, summonses, and requisitions, with the modifications contained in the following articles.'
ART. 271. Service of citations and summonses upon those who are or who should be parties to the action, shall be made by writ delivered to the person to be cited instead of the copy of the order, a statement of said service being made in the proceedings.
'The provisions contained in articles 270, 271, and 274 of this law are of general application with regard to the manner of issuing summonses, and therefore, all summonses issued by municipal courts to appear before the supreme court or before any other superior court must conform io these prescriptions.-Decisions of July 23, August 27, September 13 and 22, 1884.
When a certified copy of a judgment is delivered to a party requesting it, for the purpose of taking an appeal, the opposite party only has to be summoned to appear before the supreme court.-Decision of October 30, 1884,




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ART. 272. The writ of citation shall contain1. The name of the judge or court issuing the order, the date of the latter, and the matter upon which it is based.
2. The name and surnames of the person upon whom service is to be made.
3. The purpose of the citation and the name of the party who requested it.
4. The place where and the day and hour when the person cited is to appear.
5. The admonition that if he fails to appear he shall suffer the penalty imposed by law; closing with the date and the signature of the clerk.
If the appearance is obligatory this admonition shall be made, and if a second citation becomes necessary by reason of the failure of the party cited to appear, he shall be warned in said citation that if he fails to appear, or if he does not show good cause for nonappearance, he shall be prosecuted for the offense of serious disobedience to the authorities.
ART. 273. The citation of the witnesses and experts, and other persons not parties to the action, when to be made officially, shall be made by a bailiff (alguacil).
For this purpose the clerk shall prepare duplicate writs, and the bailiff shall deliver one copy to the person cited, who shall sign his receipt on the other copy, which shall be attached to the record.
These citations may also be made by means of an official communication when the judge considers it advisable.
ART. 274. The writ of summons shall contain all the statements mentioned in numbers 1, 2, 3, and 5 of article 272, and shall contain in addition a statement of the period within which the person cited is to appear, and the superior or inferior court before whom said appearance shall be made.'
ART. 275. Requisitions shall be served by the delivery of a notice upon the person interested of the order in which it is made, in the form prescribed; the clerk shall make an entry in the proceeding stating that the requisition has been served as ordered.
ART. 276. No answer of the person interested shall be allowed nor stated in notifications, citations, and summonses, unless required in the order of the court.
In the case of requisitions the answer made by the person requested shall be allowed and succinctly entered in the proceeding.
ART. 277. If the citation or summons is to be made by means of letters rogatory or letters mandatory, the proper writ shall be attached thereto.
iCourt clerks who (o not comply with the prescriptions of this article shall be disciplined, incurring a fine of from 25 to 50 pesetas.-Deisioi of f1aqy 20, 1886.




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ART. 278. The writs for notifications, citations, and summons shall be written on ordinary paper.
ART. 279. All notifications, citations, and summonses not made in accordance with the provisions contained in this section shall be null.
Nevertheless, when the person notified, summoned, or cited shall have obeyed the same in the action, the proceeding shall from that time have the same effect as if said service had been made in accordance with the provisions of law.
The clerk shall not be relieved thereby from the disciplinary correction prescribed in the following article: I
ART. 280. The assistant or subaltern official who shall delay discharging the duties intrusted to him in this section, or should neglect to comply with any of the formalities established in the same, shall be disciplinarily corrected by the judge or court in whose service he- may be, with a fine of from 65 to 125 pesetas.
He shall furthermore be liable for any damages or costs which may have been caused by his neglect.
SECTION IV.-SG'i&o of ,not caions 6 , th eou0 t ,Poom.
ART. 281. In all actions and proceedings in which a litigant shall place himself or be declared in default for not appearing in the action after he has been formally cited, no further effort shall be made to secure his appearance.
All orders thereafter made in the action, and all citations and summonses which are thereafter to be served upon him, shall be served within the limits of the court room, except in such cases as is otherwise provided for.
ART. 282. The notifications, citations, and summonses referred to in the foregoing article shall be served by reading the orders which are to be served, or those ordering the citation to be made, at a public session of the judge or court issuing the same, and in the presence of two witnesses, who shall sign the proceeding which shall be attached to the record and authenticated by the court clerk.
ART. 283. The judgments and rulings of which notice is given within the limits of the court room and the writs of citations and summnons to be served in the same, shall also be published by means of edicts, which shall be posted at the door of the place where the sessions of the judge or court are held, a statement thereof also being made in the proceedings.
'Articles 279, 292, 295, 306, 314, 317, and 327 of this law refer to the order of the proceedings, and even though it should be violated it does not give rise to an appeal.Decision of Febro.acy 3, 1883.
As soon as the plaintiffs enter an appearance in an action, any breach of forL in their citation is corrected, without, prejudice to the disciplinary correction of the proper party.-ecisioe of December 1, 1880.




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The adjudging part of definite judgments shall also be published in the official newspapers in the cases and in the manner prescribed by law. In such a case a copy of the newspaper in which the publication was made shall be attached to the record.

SECTION V.-Letters re!Zuisitorial, letters rogatory, letters mandatory, and mandates.

ART. 284. Judges and courts shall aid each other in the execution of all proceedings necessary and ordered in civil actions.
ART. 285. When a judicial order is to be executed other than at the place of trial of the action, or by a court or judge other than the one making the order, the latter shall commit the execution thereof to the proper person by means of letters requisitorial, letters rogatory, or letters mandatory.
Letters requisitorial shall be used when he applies to a court or judge higher in degree; letters rogatory when said execution is directed to one of equal degree, and letters mandatory when directed to a subordinate court or judge.
ART. 286. The provisions of the foregoing article shall be understood without prejudice to the right of judges of first instance to go to any place.or town within their judicial district, for the purpose of executing their judicial orders (diligencias) in person, if they deem it advisable.
ART. 287. The judge or court which shall have ordered the execution of a judicial proceeding, can not address for this purpose judges or courts of a category or degree lower, who are not his subordinates, but be must deal directly with such of their superiors as exercise a degree of jurisdiction equal to his own.
ART. 288. A mandate shall be employed for the purpose of ordering the issue of certificates, or transcripts, or the fulfillment of any judicial order, the execution of which is imposed upon registrars of property, notaries, assistants, or subordinate officials of inferior or superior courts.
ART. 289. When judges or courts are obliged to direct requests to authorities or officials of another department, they shall do so by official communications or statements, as the case may require.
ART. 290. Letters rogatory and other letters shall be received by the superior or inferior court to which the request is addressed, without requiring the exhibition of a power of attorney of the person presenting the same, nor shall he be allowed to present any writing with said requests, unless it should be indispensable to do so for the purpose of giving explanations or information to facilitate their execution.
The proper clerk shall draft a statement at the end of the letters




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rogatory or other letters, stating the date of their presentation and the person presenting the same, to whom he shall give a receipt; both shall sign this memorandum, and information thereof shall be given to the court or judge on the same day, and if this were not possible, on the next legal working day.
Ani. 291. Letters rogatory and the other letters aforementioned, shall be delivered to the party at whose request they were issued, in order that he may superintend their execution.
If the opposite party requires it, a time shall be set for their presentation to the person to whom they are to be transmitted.
ART. 292. The person requesting letters rogatory or other letters, shall be obliged to furnish the stamped paper necessary, and shall pay the costs that may be incurred in their execution.
ART. 293. The provisions contained in the three preceding articles are not applicable to letters rogatory and other letters issued at the court's own motion (de oficio) or at the instance of a poor person. A receipt shall be given to the judge issuing said letters rogatory or other letters, and the action or proceedings requested shall also be performed officially and drafted upon official stamped paper:
ART. 294. The requesting judge may directly forward to the judge upon whom the request is made, letters rogatory issued at the instance of a well-to-do party, when the latter should request it, by reason of not having sufficient acquaintance at the place where the request is to be complied with.
In such cases said party must furnish the stamped paper which may be considered necessary for securing the information required, which shall be forwarded with the letters rogatory; he shall pay the postage and registration charges, and also all the expenses incurred in the compliance therewith, as soon as the bill therefor is received, as well as any other costs which may be incurred in enforcing payment by compulsory process, which shall be resorted to for their recovery, if said payments are not made within eight days.
All these facts shall be stated in the communication accompanying the request, and the judge of whom the request is made, shall cause the request to be complied with without delay.1
AR.T. 295. The judge or court who shall receive, or to whom are presented, letters requisitorial, letters rogatory, or letters mandatory, in proper form, if his own competency should not be affected thereby, shall order what may be proper for the execution of the request made therein, within the period fixed in the letters themselves, or otherwise, as soon as possible.
1 When a judge, in com)lying with the request of another, exceeds the instructions received, his action does not produce any legal effect whatsoever, because he took the same without having jurisdiction.-Decision of June 6, 1886'.




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After the commission has been fulfilled, the letters shall be returned to the requesting party through the same channels by which they were received.
ART. 296. When the judge upon whom the request is made shall be unable to fulfill personally, either in whole or in part, the commissions entrusted to him, he may delegate the same to an inferior judge subordinate to him, by transmitting the original letters, or a communication containing all necessary statements, if he were obliged to retain the former for the performance of other proceedings which it should be necessary to undertake simultaneously.
ART. 297. The judge upon whom the request is made may also order that the letters rogatory be forwarded to another court, without returning them to the requesting judge, when he can not comply with said request for the reason that the person with whom the judicial proceedings are to be had, is in another jurisdiction.
ART. 298. The bearer of letters rogatory, letters requisitorial, or letters mandatory shall not be informed of the orders issued for the execution thereof, except in the following cases:
1. When it is requested in the said letters that some proceedings be had with the citation, intervention, or attendance of the person who may have presented the same.
2. When it is necessary to summon him to furnish some data or information which may. facilitate the execution of the request.'
ART. 299. When the execution of letters rogatory or letters requisitorial shall be delayed, attention shall be called thereto by means of an official communication, transmitted at the instance of the party interested.
If, notwithstanding the communication, the delay continues, the requesting judge shall inform the immediate superior of the judge requested thereof, by means of letters requisitorial, and said superior shall impose a disciplinary correction upon the tardy judge, without prejudice to the greater liability which he may incur.
The same means shall be employed by the person issuing a request or letters mandatory to compel his tardy inferior to return the same fully executed.
ART. 300. When service of summons is to be made or any other judicial proceeding is to be performed in a foreign country, the letters rogatory shall be transmitted through diplomatic channels, or by the means and in the manner prescribed in treaties, and in the absence of treaties, as prescribed in the general provisions of the supreme government.
In any ease, principles of reciprocity shall be observed.
'Omly in the two cases mentioned shall the bearer of letters rogatory, not a party to the proceedings, be informed of the orders issued for the fulfillment thereof,-_De.iioms of onvary 8, lfcbroar! .I afd 6, 1886,




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The same rules shall be observed for the execution in the islands of Cuba and Porto Rico of the letters rogatory of foreign courts, requiring the performance of some judicial proceeding.1
SECTION VI. -Jd0cfal prid.s Of tume, eorny nsory/prores. and d faults.
ART. 301. Judicial acts and proceedings shall take place within the period fixed for each of them.
When no time is fixed, it shall be understood that they are'to take place without delay.
Any violation of the provisions of this article shall be disciplinarily corrected, according to the gravity of the case, without prejudice to the right of the party injured to demand any indemnity which may be proper for damages or other liabilities.'
ART. 302. Judges and courts shall, in a proper case, impose said disciplinary correction upon their assistants and subalterns without the necessity of said correction being requested by a party, and should they not do so, they shall in their turn incur liability.
Judges and courts shall also impose said correction upon their subordinates, when the matter in which said violation has been committed has been brought before them on appeal, or in any other manner, or when proper complaint has been made by any of the litigants.
ART. 303. Judicial periods of time shall commence on the day following the service of a summons, citation, or notification, and the last day of said period shall be counted.
ART. 304. In no period of time designated by days, shall days be counted upon which judicial proceedings can not be taken.
Neither shall the days of the summer recess be counted in the period of time within which to take an appeal to the supreme court for annulment of judgment for breach of law, unless actions of unlawful detainer are in question, or proceedings of voluntary jurisdiction, or any other
By royal order of March 9, 1888, it is prescribed that no letters rogatory or letters requisitorial shall be directed to foreign countries in civil matters, unless the person interested shall previously deposit in the central treasury an amount considered sufficient, in the judgment of the presiding judge of the audiencia, to cover the costs of the service and all other expenses which may arise in the matter. Letters rogatory must be addressed to the foreign judges who are to execute them, and it is forbidden to forward them to the consuls, legations, or diplonmatic representatives in the country where they are to be executed. In letters rogatory of this character, it is prescribed that the clause offering reciprocity for the execution in Spain of similar requests be not onitted. 'Judicial periods of time are binding upon the parties, whatever be the judicial character of the litigant, even though he be the representative of the State. -Decision of May 24, 1887.
'These days are and must be understood as natural days, including the twentyfour hours from midnight to midnight, so that on the day of the expiration of a period instruments may be filed until twelve o'clock midnight.-Deciion of Decewber 12, 1861.





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urgent matters which may be decided in the vacations chamber (sala de vaeaciones).'
ART. 305. Periods of time designated by months shall be counted by natural months, without excluding illegal working days.
In such cases, if the period should terminate on a Sunday or other holiday, it shall be understood as extended to the following legal working day.
ART. 306. Periods of time, the extension of which is not expressly forbidden by this law, may be extended.
In order to grant an extension it is necessary1. That it be requested before the expiration of the period.
2. That good cause be shown therefor, to the satisfaction of the judge or court, without there being any remedy against his decision on the subject.
ART. 307. Not more than one extension can be demanded or granted; said extension may be granted for the period of time which the judge or court may consider reasonable, but in rio case shall it exceed onehalf that fixed by law for the term extended.
ART. 308. After the extendible periods, or the extension granted at a proper time, has elapsed, if the records be in the clerk's office, the provisions contained in article 520 shall be observed.
If the records should be in the possession of any of the parties, as soon as they are requested by the opposite party, the former shall be ordered to return them within twenty-four hours, under a penalty of not less than 25 nor more than 65 pesetas for every day upon which he shall fail to so return them. This fine shall be imposed personally upon the solicitor, if one should take part in the case, unless he shall prove his blamelessness.
If three days should elapse without the records being returned, the clerk shall, under his liability and without requiring a new order, proceed to recover them of the person in whose possession they may be; and if they should not at once be delivered to him upon demand, he shall inform the judge or court, so that an order may be issued for such proceedings to be instituted as are proper for concealment of process.
AnT. 309. More than one writ for compulsory process shall not be allowed. The costs thereof and of the other proceedings until the return of the records, shall in every case be on the account of the person against whom said process is issued.
ART. 310. The periods fixed for the following can not be extended:
1. For appearance in an action.
I For the purpose of taking an appeal for annulment of judgment the days of the summer recess are counted in proceedings of voluntary jurisdiction.-Decisioa of Xovernbr 11, 1889.
Periods which can be extended which elapse before an extension has been applied for, become final.-Decision of December 10, 1864.





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2. For the taking of dilatory exceptions.
3. For motions for a rehearing, appeals or petitions for modification or revocation of judgment (recurso de s.@l/ca), and for the preparation and interposition of the remedy of complaint against the refusal to allow an appeal.
4. To request the elucidation of some judgment, or to supply an omission therein.
5. For an appellant to appear before the superior court in obedience to the summons served in consequence of the admission of an appeal.
6. To appear before the superior court with the proper proof, for the purpose of enlarging an appeal allowed for a review of the proceedings (en ,an efecto).
7. To request a certificate of judgment for the purpose of taking an appeal for annullment of judgment, for breach of law or of legal doetrine, and to prepare it for presentation before the Supreme Court.
8. To take an appeal for annullment of judgment for breach of form.
9. To appear before the Supreme Court in consequence of the allowance of the appeal for annullment of judgment, or for interposing the remedy of complaint against the order by which the granting of a certificate of the judgment is denied, or the appeal disallowed.
10. In any other matter with regard to which there may be a clear and express declaration, to the effect that after a certain time has elapsed, no action, exception, remedy, or rights upon which the same are based, be litigated.
ART. 311. Periods of time which can not be extended, can not be suspended nor reopened by restoration or otherwise, after the expiration thereof.
Said periods of time can only be suspended during their course by reason of force majeure which prevents their utilization.'
ART. 312. After periods of time which cannot be extended have elapsed, the proceeding or remedy which could have been advanced, shall be considered as lapsed and forfeited by law, without the neces'If an action is brought against a municipality, and if the mayor is cited and summoned and should not enter an appearance, and a judgment is rendered in his absence and default, against the municipality, the latter has the benefit of restitution in integrun, the defence having been abandoned without article 31-1 of the law of civil procedure being opposed thereto.-Dcision of June 11, 1883.
Restitution in itegrut. for damages caused to minors is not of those included in this article.-Decitios of January 31, 1882, ad Jtne 2, 1886.
The law of civil procedure does not establish any differences between colitigants, because the periods of time within which to appeal from orders, etc., can not be extended for any reason whatsoever, and can not be suspended after their termination by way of restitution nor for any other reason. The department of public prosecution is subject to the provisions of said articles.-Deciion of M11ay 21, 1870.
Restitution in integruab is not recognized in the Civil Code. (See articles 1299 and 1301.)





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sity of compulsory process nor of entry of default, except in the case referred to in number I of article 310.
No petition or claim of any kind shall be admitted which conflicts with this provision, and if it should become necessary to recover the record in order to properly continue the proceedings, the procedure established in article 308 shall be followed.

TITLE VII.
DISPATCH, HEARING, VOTING UPON AND DECISION OF JUDICIAL MATTERS.
SECTION I.-Ordinay dispatch and hearing.

ART. 313. Proceedings for the taking of evidence and the hearing of actions and other judicial matters, shall be held in open court.
The ordinary dispatch of business shall also be publicly performed when requested by one of the parties.
ART. 314. Notwithstanding the provisions contained in the foregoing article, judges and courts may order, at their own instance or at the instance of a party, that the dispatch and hearing of matters be had behind closed doors, when so required by good order or good morals.
If this action is to be taken at the beginning of the hearing, after hearing the parties briefly thereupon, the court shall immediately decide what it may deem proper.
There shall be no remedy whatsoever against a decision on this point.
ART. 315. Secretaries and clerks shall, in the ordinary dispatch of business, make a verbal report on the same day on which instruments are presented or the decisions rendered, and should this not be possible, on the day following.
ART. 316. Orders for proceeding in a matter shall be issued at the time a report is made thereon, or within the two days following, at the utmost.
In audiencias, only in cases where a decision has to contain a statement of the reason for its rendition, or when there is necessity of examining data for the purpose of rendering it, can the respective chamber order that a report be made thereon by a relator.
ART. 317. Chambers shall meet with at least three and not more than five justices for the ordinary dispatch of business and for the decision of incidental issues. An agreement can only be reached by an absolute majority of votes.
ART. 318. Judges of first instance shall personally examine the causes and proceedings, before rendering decisions and rulings.
In an audiencia a report shall be made by the clerk of the chamber or by the relator, in a proper case, who shall prepare the proper brief when prescribed by law.






LAW OF CIVIL PROCEDURE.


ART. 319. The relator shall state, at the end of the brief, under his personal liability, whether or not in the previous proceedings the prescriptions of this law with regard to periods of time and continuances, compulsory process, recovery of the record, and others relating to the order and form of procedure, have been observed, as well as whether or not unnecessary or unauthorized acts have been performed, and shall make a note of all defects or omissions which may appear, o" state, otherwise, that the legal prescriptions have been observed in the procedure in the cause.
ART. 320. The relator shall make the briefs, strictly observing the the regular order in which they were ordered made. They shall only give preference to the matters mentioned in the following article.
ART. 321. Hearings of actions and incidental issues shall be set in the order in which they are at issue, and without the necessity of a request of the parties therefor.
From the foregoing are excepted proceedings for temporary maintenance, questions of competency, proceedings for consolidation, challenges, matters of unlawful detainer, summary proceedings relating to property, proceedings for the custody of persons, actions of lesser import and executory actions, denials of justice or of proof, and other matters which, by provision of law or by an order of the chamber, are to be preferred for very special reasons, and the hearing of which, after they are at issue, shall be set ahead of other matters which may be unset at the time.
It shall be the duty of the presiding judge of the chamber to set matters for hearing.
ART. 322. All actions shall be heard on the day set therefor.
If at the end of the hours set for hearing some matter, it should not be concluded, it may be suspended and continued to the following day or days, unless the presiding judge shall extend the time therefor.
ART. 323. The hearing of an action on the day set therefor can only be suspended in the following cases:
1. When the continuation of another cause from the preceding day shall prevent it.
2. On account of there not being a sufficient number of justices to render judgment.
3. On account of the death or cessation in the action of the solicitor of any of the parties.
I. By reason of the death of any of the litigants.
5. When a unanimous request is made therefor by the solicitors of the parties, alleging good cause in the judgment of the court.
6. On account of the illness of the attorney of the party requesting the suspension sufficiently proven to the satisfaction of the chamber, provided that said request be made 48 hours previous to that set for the hearing, unless the illness should have occurred after this period.





LAW OF CIVIL IIROCEDURE,


7. On account of the death of the spouse., or of any of the ascendants or descendants of an attorney in the action, occurring before the nine days prior to that set for the hearing.
8. When an attorney in the action is required to attend two hearings on the same day before different courts, which fact shall be properly proven, in which case the superior court shall have preference over the inferior one.
ART. 324. In the ease of a suspension of a hearing, another day shall be set as soon as the reason for the suspension shall have disappeared, without altering the order of hearings already set.
ART. 325. For the hearings of causes or incidental issues, the chambers shall meet with the number of justices necessary to render judgment in the matter involved.
ART. 326. When it shall become necessary to make up the number of justices of a chamber, with justices from another, or with substitates, before the commencement of the hearing the names of those designated shall be communicated to the solicitors of the parties, and the hearing shall at once be proceeded with, unless any of the justices * shall at that time be challenged, even though verbally.
In such case the hearing shall be suspended, and the challenge being reduced to writing and presented before the third day, this issue shall be heard and determined in the manner prescribed.
If the challenge should not be presented within said period, it shall not be admitted, and the challenging party shall be fined the amount prescribed in article 212, and shall be taxed the costs of the suspension, a new day being set for the hearing of the cause as soon as possible.
ART. 327. In the case of the first paragraph of the foregoing article, if the hearing shall have been had on account of no challenge having been interposed, the voting for judgment shall be suspended for three days. The substitute justices may be challenged during this period, and after said period has elapsed, without a challenge having been interposed, the time for the rendition of judgment shall immediately commence to run.
ART. 328. If the challenge should be interposed within said period, and allowed, the hearing shall be vacated and it shall be had anew before competent justices, at the earliest day which can be set.
If the challenge be disallowed, the justices who attended the hearing shall render judgment, the period within which to render it beginning on the day following the decision upon the challenge.
AiT. 329. If, after the beginning of the hearing of a cause, one or more of the justices shall fall ill or become otherwise unable to continue attending the same, and there should be no probability that the said justice or justices will be able to attend within a few days, a new hearing shall be had, the number of justices being filled from among those who should substitute those disabled.




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If, notwithstanding the disability of one or more justices, a sufficient number shall remain to render judgment, a suspension shall not be necessary, nor a new hearing, in a proper case.
ART. 330. Hearings shall begin with the reading of the brief made by the relator; and in cases in which no brief has been made, with a succinct statement made by the said relator, or by the recording clerk of the chamber, of all matters tending to furnish information on the question at issue, when the law does not provide otherwise, after which the attorneys for the parties appearing thereat shall present their argumQnts in their order.
The latter may make a second argument, with the consent of the presiding judge, for the purposes of correcting facts or statements.
The hearing shall be considered as ended when the presiding judge pronounces the word "heard."
ART. 331. Parties to the action may, with the consent of the presiding judge, verbally state what they may deem proper for their defense at the conclusion of the hearing and before it is declared closed, or when any petition is presented on their behalf.
The presiding judge shall allow them to speak, as long as they confine themselves to the questions at issue and observe the proper respect.
ART. 332. The presiding judge shall call to order any attorney who clearly strays from the question at issue in his argument, or who loses time with impertinent and unnecessary arguments; and if he shall persist therein after having been admonished twice, permission to speak may be withdrawn from him.
ART. 333. It is the duty of the justice presiding at the hearing, assisted by the chamber, in a proper ease, to preserve good order and to require that the respect and consideration due the court be maintained, at once correcting any offenses which mvy be committed, in the manner prescribed in title 13 of this book.
ART. 334. The hearing shall be entered upon the record by means of statements drafted by the relator or clerk of the chamber, stating the names of the justices composing the chamber, the names of the attorneys making the arguments, of the solicitors who may have attended, and the time consumed at said hearing.
If any of the attorneys for 'the parties shall raise any collateral matter at the hearing which requires a decision, it shall also be included in said statement, which shall be read, in such case, to the attorneys at the conclusion of the hearing, for their approval and signatures.

SECTION II.-JItwceW "_poflefl tem
ART. 335. A justice "ponente" shall be selected for each cause, all the justices of the chamber being selected for these duties in their turn, with the exception of the presiding judge thereof.




LAW OF CIVIL PROCEDURE.


The presiding judge shall, nevertheless, also undertake said duties in his turn when for any reason whatsoever the number of justices of a chamber, including the presiding judge, should be reduced to three.
ART. 336. It shall be the duty of the ponente1. To report to the chamber with reference to the propriety of making any amendments in, or additions to, the abstract requested by the litigants. The records shall previously be delivered to the litigants for this purpose.
2. To examine and classify as to the pertinency of all interrogatories, depositions, and proposals of evidence submitted by the parties. Should any objections be made to the classification, it shall be decided by the chamber.
3. To preside at the presentation of all evidence and to receive any declarations which the chamber may order, without prejudice to the provisions of article 254.
4. To authenticate the ratifications and to make the appointments for the performance of every duty.
5. To verbally submit to the deliberation of the chamber all findings of fact and conlusions of law, and the decision which, in his judgment, should be rendered, but without making a draft thereof.
6. To draft the rulings and judgments agreed upon by the chambers, even though his vote has not been in accordance with that of the majority.
In such case, the presiding judge of the chamber may intrust the drafting of the judgment to another justice, if he considers it advisable by reason of special circumstances.
7. To read the judgment in open court.
Should he not be present in the chamber on the day the judgment is to be read, the presiding judge shall act in his place.
8. Any other duties which may be intrusted to the ponente by a special provision of law.
ART. 337. It shall also be the duty of the justice ponente to investigate whether legal formalities have been observed; whether or not instruments for which this law prescribes precise forms have been drafted in accordance thereto, or whether other abuses have been committed, either of commission or of omission, in the proceedings of the action, verifying those noted by the relator; and if there exists a mistake which should be corrected, he shall call the attention of the chamber thereto, in order that it may definitely determine what it may deem proper, for the purpose of correcting the same and to procure a punctual and strict observance of this law, in letter as well as in spirit, by all officials taking part in actions.





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SECTION 111.- Votinq and decisions in actions.
ART. 338. After a hearing in a cause has been closed, any of the justices may demand the record for the purpose of making a private examination thereof.
When several justices request said record, the one presiding shall designate the period of time that each may retain the same, in order that judgment may be rendered within the time fixed therefor.
ART. 339. With the exception of the case referred to in the foregoing article, rulings and judgments shall be discussed and voted upon immediately after the hearing; and if this be not possible on account of other requirements of the service, the presiding judge shall set a day therefor, within the periods respectively fixed by law.
ART. 340. After the hearing, or after the citation for judgment, and before the rendition of judgment, judges and courts may order, in furtherance of justice:
1. That any document which they may deem necessary for the purpose of properly elucidating the rights of the 'litigants be brought before them.
2. Demand a judicial confession of any of the litigants of any facts which they may consider of importance in the question at issue, and which have not been proved.
3. That any investigation or appraisement be made that they may consider necessary, or that those already made be enlarged.
4. That any records which bear any relation to the action be brought before them.
There shall be no remedy whatsoever against orders of this character, and the parties shall not have any intervention therein, except that granted them by the court.'
'The parties have no right to intervene in an act, the only object of which is to ascertain or explain some matter to the satisfaction of the judges.-Decision of December 11, 1865.
Orders in furtherance of justice are not issues such as are recognized by the law of civil procedure, nor are the parties given any other intervention therein, than that specifically designated in the order itself. -Decision of April 9, 1866. Proceedings for the furtherance of justice are not instituted for private interests, but for a better administration of justice. Their admission, therefore, is to be passed upon by the court without affecting any right of the parties litigant.-Decision of
-March 19, 1869.
Judges may also order the examination of documents in the furtherance of justice.-Decis of Jene 28, 1892.
The absence of a citation of the parties to attend proceedings instituted for the furtherance of justice, does not constitutea ]) reach of form, because the parties have no other intervention therein than that expressly granted them by the judge or court.-Decisnio of July 8, 1885.





LAW OF CIVIL PROCEDURE.


ART. 341. The period within which the proceedings for the furtherance of justice shall be performed, shall be fixed in the said order, and if it be not possible to determine it, the Judge or chamber shall see that said proceedings are executed without delay and shall, on his or its own motion, issue the reminders and compulsory process which may be required.
ART. 342. In such cases, the period within which judgment is to be rendered shall be suspended from the date of the order issued in furtherance of justice until it has been fulfilled, after which and during the remaining time, the proper ruling or judgment shall be rendered without a rehearing.
ART. 343. The discussion and voting for judgments and rulings shall always be held behind closed doors, and before or after the hours designated for the ordinary dispatch of business and for hearings.
After the voting has begun, it can not be interrupted except for an insuperable cause.
ART. 344. The ponente shall submit to the chamber for its deliberation, all questions of fact and of law and the decision to be included in the judgment, and the voting shall take place after the necessary discussion.
ART. 345. The ponente shall vote first, and afterwards the other justices in the inverse order of their seniority with regard to length of service. The presiding judge shall vote last.
ART. 346. When any justice should be transferred, retired, removed, or suspended, he shall vote upon all actions, the hearing of which he may have attended, and which have not as yet been decided.
ART. 347. If, after the hearing, any justice shall become disabled, to such an extent that he can not attend the voting, he shall give his vote in writing, properly based and signed, and shall forward it directly, under closed cover, to the presiding judge of the chamber. If he be not able to write or sign, he shall be assisted by the relator in the action.
The vote thus cast shall be attached to the others, and shall be preserved, together with the book of judgments, by the presiding judge and rubricated by him.
If said disabled justice should be unable to vote even in this manner, the voting in the action shall be done by the other justices who may have attended the hearing, should there be a sufficient nunber to form a majority. Otherwise, a new hearing shall be had with the presence of those who may have attended the former hearing, and with the justice or justices who are to replace those disabled.
ART. 348. Three concurring votes are necessary for the rendition of judgments by audiencias.
If the decision is to be rendered in the form of a ruling (auto), the votes of an absolute majority of the justices who shall have attended the hearing shall be necessary.





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ART. 349. If there be a disagreement by reason of the absence of a sufficient number of votes to render judgment, it shall be adjusted in the manner prescribed in the following section.
SECTION IV.-fanner of adjusting disagreements.

ART. 350. If, in voting upon a judgment, ruling, or order of mere practice, there should not be a majority of votes upon any findings of fact or conclusions of law to be made, or upon the decision to be rendered, the discussion and voting upon the points not agreed upon shall be repeated.
If there should be no majority at the second voting, an order shall be made declaring a disagreement and ordering a new hearing before an increased number of justices.
ART. 351. The new hearing shall be held before the same justices who attended the previous one, and two additional one, if there were an odd number of dissenting justices, and three, if the number were even.
ART. 352. The following shall attend, in the order given, for the purpose of adjusting disagreements:
1. The presiding judge of the court.
2. The" associate justices of the respective chamber who have not heard the action.
3. The senior justices in length of service of the other chambers, with the exception of the presiding judges thereof.
ART. 353. The presiding judge of the court shall set the time for the hearing of matters upon which there has been a disagreement, after receiving notice thereof from the presiding judge of the proper chamber, and after designating the justices who are to adjust said disagreement.
ART. 354. The names of the justices who are to adjust the disagreements, shall be made known to the litigants in due time, in order that they may allege their rights of challenge, if proper.
ART. 355. The disagreeing justices shall state with clearness, in the order declaring the disagreement, the points on which they agree and those upon which they disagree, and shall confine themselves to deciding such questions, with the justices adjusting the disagreement, upon which no agreement has been reached.
ART. 356. Before commencing to hear an action'upon which there has been a disagreement, the presiding judge of the chamber who is to adjust said disagreement shall ask the disagreeing justices whether they insist in their opinions, and only in case of an affirmative answer shall the hearing be continued.
If, upon voting on a judgment disagreed upon, the disagreeing justices should come to an agreement in sufficient number to form a majority, the proceedings shall not be continued.




LAW OF CIVIL PROCEDURE.


ART. 357. If, upon voting on a judgment by a chamber sitting to adjust a disagreement, there should not be a majority upon the points disagreed upon, a new vote shall be taken, but only upon the two opinions which obtained the greater number of votes at the preceding one.

TITLE VIII.

MANNER AND FORM IN WHICH JUDICIAL DECISIONS SHALL BE RENDERED.

SECTION I.-Judyments.

ART. 358. Judgments must be clear, precise, and congruent to the pleadings and other allegations duly advanced in the action, and shall contain the declarations required by the latter, deciding for .r against the defendant' all questions which have been the object of the arguments.1
If there should be several issues, the decisions pertaining to each shall be separately rendered.'
ART. 359. If there should be an adjudication of profits, interests, losses, or damages, the net amount thereof shall be determined or the bases shall be fixed according to which the liquidation is to be made.
Only in cases in which it is impossible to do either, shall an adjudication be made, reserving the right to fix the amount thereof and its enforcement in the execution of the judgment.'
ART. 360. Judges and courts can not, under any pretext whatsoever, postpone, delay, or refuse to decide questions discussed in the action.4 'A judgment is congruent to the pleadings when it grants the support mentioned in article 1100 of this law, even though the plaintiff should call the same provisional or temporary, if it be clearly deduced from the terms and bases of the petition that the support mentioned in said article is referred to, and not the maintenance included in articles 1609 et seq.-Decision of December 24, 1888. 'A judgment which grants less than is requested is not incongruent.-Decision of January 4, 1887.
A judgment which, in revoking a ruling appealed from, does not decide as to the delivery of certain estates, etc., relating to the estate of a deceased person, which questions had been decided by tho lower court and had been the subject-matter of the express petition of the party taking the appeal, violates the provisions of this article.-Decision of January 14, 1884.
'Art. 360 of the law of civil procedure presupposes as a fundamental basis for the adjudication of losses and damages, the legal proof of their existence, and, therefore, a chamber which condemns the defendant to pay the losses and damages which may have been caused to the estates, the subject of the litigation, etc., violates the provisions of this article, because the judgment is uncertain.-Dei.ion of Janvary 4, 1887. 4A judgment which reserves for another action the decision of one of the questions raised in the action, violates this provision, as does also the judgment which reserves to the plaintiff the right which may pertain to him.-Deeiroes of July 9, 1885, awd December 18, 1868.




LAW OF CIVIL' PROCEDURE.


ART. 361. Notwithstanding the provisions of the foregoing article, courts and judges, when they are to base their judgment exclusively upon the purported commission.of a crime, shall suspend the decision of the action, until the termination of the criminal proceedings, if, after hearing the department of public prosecution, they should consider the institution of a criminal action proper.
The order of suspension may be appealed from for review and for a stay of proceedings.'
ART. 362. Neither shall judges nor courts be permitted to change or modify their judgments after they are signed, but they may elucidate any obscure point or! supply any omission they may contain, upon a point discussed in the action.'
These elucidations or additions may be made, on the court's own motion, on or before the legal working day following the publication of the judgment, or, at the instance of a party, on or before the day following the notification.
In the latter case, the judge or court shall decide what may be considered proper, on or before the day following the presentation of the instrument requesting the elucidation.
ART. 363. In inferior courts the judgments shall be drafted by the judge who renders the same, who, after entering them upon the record, shall sign and read them in open court, the clerk or secretary authenticating their publication.
ART. 364. In the supreme court and in audiencias, after the judgment has been prepared by the ponente, in accordance with the proI In order to consider a document false, it is necessary that a clear and express declaration of its falsity be made in the judgment.-Decision of 31arch 6, 1861.
2The elucidation of a judgment rendered by a court, having been requested because nothing was provided therein relating to the reconvention made in the action, the judge supplemented the judgment absolving the plaintiff therefrom and allowing the appeal taken. After the record had been transmitted to the higher court a judgment was rendered confirming that appealed from, with costs. The appellant also demanded an elucidation with regard to the reconvention, but the chamber declared that an elucidation was not necessary, because the elucidation ordered by the court had not been the object of the appeal. An appeal for annulhnent of judgment having been taken, the supreme court decided that the explanations or additions which courts make in their judgments, in view of the privilege granted them by article 362 of the law of civil procedure, constitute part of the judgment itself, and the appeals taken are considered to embrace said additions or explanations, for which reason the adjudging chamber in this case should not have refused to render judgment on the question of the reconvention, added to its judgment by the judge of first instance, and this question not having been decided, it is evident that article 358, invoked by the appellant, has been violated.-Decision of Novenber 17, 1887. 3The correction of an arithmetical error does not constitute a real change in the judgment, and still less so, when it was requested and made within the legal period.Decision of 11oremser 6, 1884.
The elucidations or additions made by courts in judgments, constitute a portion of said judgments, and appeals taken by the parties are understood to include said additions or elucidations.--Decisioe qf Nomeorber 17, 1887.





LAW OF CIVIL PROCEDUR .


visions of number 6 of article 336, and after having been approved by the chamber, it shall be drafted on official stamped paper and signed by all the justices who may have rendered it; shall be read in open court by the ponente, and in his absence, by the presiding judge of the chamber, the publication thereof being authenticated by the proper secretary or clerk of the chamber.
The latter shall enter in the record a literal certified copy of the judgment and of the fact of its publication, countersigned or viseed by the presiding judge of the chamber, who shall recover and keep the original for the purpose of forming the register of judgments, in the manner prescribed in the regulations or in special provisions.
ART. 365. If, after an action has been decided by a court, one of the justices who voted at said decision should become unable to sign, the one who presided in the chamber shall do so for him, stating the name of the justice for whom he signs and placing thereafter the words: Voted in chamber, but was unable to sign.
AnT. 366. Every justice taking part in the voting for a judgment, shall sign the decision agreed upon, even though he shall have dissented from the majority; but he may, in such case, explain his vote, writing, basing, and inserting it with his signature at the bottom, within the twenty-four hours following, in the book of reserved votes (votos TeServados).
AR.T. 367. Private reserved votes shall not be inserted in the certificates of the judgments, but must be forwarded to the supreme court in the cases prescribed, and. always when the record is transmitted to the same. They shall be made public when an appeal for annullment of judgment is taken and allowed.

SEcTIoN II.-_Form i i ochjudicial resolutions s/ha1l be rendcired.
ART. 368. The resolutions of superior and inferior courts in matters of a judicial character shall be calledProvidencias,' when they are of mere practice.
Autos (rulings), when deciding incidental issues or points which determine the disputed personality of any of the parties, the competency of the inferior or superior court, the allowance or disallowance of a challenge, the striking out of a complaint, the allowance or disallowance of exceptions, the refusal to admit a counterclaim, the refusal to admit evidence or any proceeding therefor, those which may. cause irreparable injury to the parties, and others deciding any other incidental matter:, when it is not prescribed that a judgment b rendered thereon.
Senteicias (judgments), when finally deciding the questions at issue in an action in one instance, or in an extraordinary remedy; or when
'This has been translated "Orders'' or "Order, (f maeieratice."





LAW OF CIVIL PROCEDURE.


'in deciding an incidental issue, it puts an end to'the main issue which was the object of the action, making the continuation thereof impossible, and decisions which allow or refuse to allow a litigant to be heard, after he has been declared in default.
Fivaljyudgeids, when, by their nature or by agreement of the parties, there should be no ordinary or extraordinary remedy against then.
Eeotdora., the public and formal instrument in which a final judgment is entered for enforcement.
ART. 369. The formula for orders of lucre practice shall be limited to the order of the judge or court, without any bases or additions other than the date thereof and the name of the judge or chamber issuing the same.
ART. 370. The formula for rulings (autos) shall be based upon resultandos and considerand( ,8, both concrete and confined to the particular question decided, the name of the judge or court deciding the same, and the place and date upon which the decision was made.
ART. 371. Final judgments shall be drafted as follows:
1. The place, date, and judge or court rendering the same, the names, domicile, and profession of the parties litigant, and the character in which they litigate, the names of their attorneys and solicitors, and the object of the action.
There shall also be stated, in a proper case, and before the " considerandos," the name of the justice _ponete.
2. In separate paragraphs, which shall begin with the word esudtando there shall be clearly and concisely stated the contentions of the parties, and the facts that have been properly alleged and on which the same are based and which are connected with the questions to be decided.
In the last resuldtcndo, there shall be stated whether the provisions of law have been observed in the course of the proceedings, and stating, in a proper case, the defects or omissions that may have been committed.
3. The points of law alleged by the parties shall also be considered in separate paragraphs, beginning with the word consdidlekmfdo, giving the reasons and legal principles which are considered proper for the decision, and citing the laws or precedents which may be considered applicable to the case.
If, during the course of the action, any defects or omissions should have been committed which should be corrected, they shall be stated in the last conM"deravdo, mentioning, in a proper case, the doctrine to be followed for a correct observance and application of this law.'
1 Against the violations of regulations committed during the course of judieial proceedings, the ordinary appeals granted by the law s may be utilized for the purpose of repairing the injury which said violation may cause the parties, and if these





LAW OF CIVIL PROCEDURE.


4. Finally, judgment shall be pronounced in the manner prescribed in articles 358 and 359, and such statements as may be necessary to correct any errors which may have been committed in the proceedings shall be set forth.
If said errors should deserve disciplinary correction, it may be imposed in a reserved resolution, when this is considered advisable.1
ART. 372. The supreme court and the audiencias shall see that the provisions of the preceding article are complied with, and shall, therefore, duly admonish their subordinate courts and judges when they have not conformed to the rules prescribed therein, and shall impose upon them such other disciplinary corrections which may be proper.
AT. 373. The ejecutorias shall be headed in the name of the King.
The final judgments shall be inserted therein, as well as the previous ones, if the latter form a complement to the former.
If the transcript is issued at the instance of a party, for the protection of his interests, there shall also be inserted such documents, instruments, and proceedings which he may designate, and at his cost.'
ART. 274. Orders of mere practice, rulings, and judgments must be issued within the period of time prescribed by law for each.
The judge or court who should fail to do so, shall be disciplinarily corrected, unless there should be good cause, which shall be entered in the record.
TITLE IX.

REMEDIES AGAINST JUDICIAL RESOLUTIONS AND THEIR ]FFECTS.

SEc TIoN I.-eMedies against resolutions of judges of .fflt instace.

ART. 375. Against orders of mere practice issued by judges of first
remedies should not have been used, acts consented to and carried out can not be returned to.-Decision of May 7, 1888.
The explicit precepts of this article are violated when no law or doctrine whatsoever is cited in the judgment in support of the declaration made therein.-Decision of April 14, 1860.
The violation of this article can never give rise to an appeal for annullment of judgment.-Decisions of January 4, Aeptenzber, 29, and October 19, 1866, and Joe 30, 1865.
I The decision of questions of fact is of the exclusive jurisdiction of the adjudging chamber.-Decisions of fTme 16 and 30, 1876; fanuay 18, 1883, and May 21, 1883. An adjudging chamber does not violate any laws by considering and combining various elements, in order to deduce its true belief.-Decision of 'bruary 19, 1879. According to jurisprudence of the supreme court, the taxation of costs in the first instance is Of the exclusive competency of the superior courts, who are to consider the good or bad faith of the litigants. -Decision of October 7, 1879. The decision in the second instance does not have to be confined to a declaration in the last resoltanmdo as to whether the legal prescriptions have been observed or not in the course of the proceedings of the appeal, but must contain a similar declaration with regard to the first instance.




LAW OF CIVIL IPIROCEDt RE.


instance there shall be no other remedy but an application for a rehearing, without prejudice to which the order shall be executed.
In order that this application be allowed, it must be made within the third day, and the provision of this law which has been violated must be cited.
If these two requisites have not been complied with, the judge shall disallow the application eo instantly and without further remedy.1
ART. 376. A rehearing of other orders and rulings made by a judge of first instance may also be requested within five days, excepting those mentioned in article 381.
ART. 377. When an application for a rehearing has been presented in the proper manner and within the proper time, a copy thereof shall be delivered to the adverse party, who may object to the application, if he should care to do so, within the three days following,
When there are several colitigant parties, said period shall be common for all of them.
ART. 378. After the period above mentioned has elapsed, whether or not written objections have been filed, the judge shall, on or before the third day following, decide what he may consider proper.
ART. 379. Front a ruling deciding on an application for a rehearing or the orders and rulings referred to in article 376, an appeal may be taken on or before the third day thereafter.
ART. 380. When the rehearing refers only to the orders of mere practice, mentioned in article 375, there shall be no remedy whatsoever against a ruling deciding the same, except the right to institute an action for liability, and the right to request. in the second instance, that the error be cured when proper.
AnT. 381. Final judgments in all matters and rulings deciding dilatory exceptions and incidental issues, may be appealed from within five days.
AnT. 382. The appeals may be allowed for a review only, or for a review and stay of proceedings also.
They shall be allowed for review only in all, cases in which it is not
'Orders of mere practice (providencias) are those issued for the purpose of conducting the action in the manner prescribed by law. An order requiring that the record be delivered to the relator for the preparation of a brief is not an order of mere practice, when a question is involved in which the appeal is not interposed at the proper time.-Decisioo, of July 9, 1887.
2 No appeal lies to the audiencia of the territory from the orders and other resolutions rendered by judges of first instance in actions brought before then oi appeal from municipal courts of their district and which are of the competency of the latter in first instance, because the law does not authorize a third degree of jurisdiction in any kind of actious.-Decj,4ion of September 13, 1884. When an appeal is interposed in (hue time without the signature of an attorney, although it can not be passed upon until the defect is cured, the lapse of the period of time is interrupted, and after the defect is cured said appeal must be admitted.Decision qf December 26, 1883.




LAW OF CIVIL PROCEDURE.


prescribed that they be allowed without limitation or for a review and stay of proceedings also.'
ART. 383. In addition to the cases expressly mentioned in the law, the following appeals shall be allowed for review and for a stay of proceedings:
1. Appeals from definite judgments in all kinds of actions, when not otherwise provided by law.
2. Appeals from rulings and orders which put an end to an action, rendering its continuation impossible.
3. Appeals from rulings and orders which cause definite and irreparable injury.'
ART. 384. In the last ease of the foregoing article, if the judge allows the appeal for a review only, because he does not consider the injury irreparable, and the appellant insists upon the contrary, on or before the third day thereafter, the appeal shall be allowed for a review as well as for a stay of the proceedings, provided that the appellant, within a period not to exceed six days, furnishes a bond to the satisfaction of the judge to indemnify the opposite party or parties, in a proper case, for all costs or damages they may incur or suffer.
If the audiencia shall affirm the ruling appealed from, it shall condenm the appellant to the payment of said indemnities, and shall moderately fix the amount of said losses and damages.
The indemnity therefor shall not be less than 250 nor more than 2,500 pesetas for each of the opposite parties, in addition to the costs.
ART. 385. If an appeal is taken in time and in proper form, the judge shall allow it without any further proceeding, if proper, stating whether it is allowed for a review of proceedings only, or for a review and stay of the proceedings.
ART. 386. If the appeal has been allowed for a review and stay of proceedings, the judge shall forward the original record to the superior court within six days, under his liability and at the cost of the appellant, first citing and summoning the solicitors of the parties to appear before said court within the period of twenty days.
ART. 387. In the case 'of the foregoing article, the execution of the judgment or ruling appealed from shall be suspended until the superior court renders a decision thereupon.'
ART. 388. The jurisdiction of the judge over the principal issue and over incidental issues which may arise, shall also be suspended from the 1A ruling allowing an appeal for review only is not final for the purposes of an appeal for annulment of judgment.--)ecision of July 7, 188t. 'An appeal for annulment of judgment does not lie when based on a violation of this article, because th latter relates to mere practice only.-Deeision qf unw 8; 1885. 3If a decision is appealed from, even though it be in one of its issues only, it does not acquire the character of a res judicata in any of them.-Deaieion of January "1, 1876.




LAW OF CIVIL PROCEDURE. 79
moment he allows an appeal therefrom for a review and for a stay of proceedings.'
ART. 389. The following are excepted from the provisions of the foregoing article, and the judge may continue exercising jurisdiction over the same:
1. Issues heard and determined in a separate record, instituted before the appeal was allowed.
2. All matters relating to the administration, custody, and care of property attached or under judicial control, provided that the appeal does not involve one of these points.
3. Matters relating to the security and custody of persons.
ART. 390. The execution of the judgment, ruling, or order appealed from shall not be suspended, when the appeal has been allowed for a review of the proceedings only.
In such case, if the appeal should be from a final judgment, an authenticated statement of all that is necessary for its execution shall remain in the court, the record being forwarded to the appellate court in the form and manner prescribed in article 386.
If the appeal should be from a ruling or order, the appellant shall be furnished, at his cost, a certified copy of the contents of the record, with such additions as may be made by the colitigant and those which the judge may consider necessary to enable him to apply to the audiencia.
The appellant must request said copy within five days, stating the details it should contain. Upon the expiration of this period without having requested it, the said statement or copy shall be denied him and the decision appealed from shall be considered final.'
ARi. 391. At the end of the statement or copy mentioned in the last two paragraphs of the foregoing article, the citation shall be entered, summoning the parties to appear before the appellate court within the period of fifteen days, and the fact of service thereof upon the appellant's solicitor shall be therein stated.
ART. 392. Within the fifteen days following the date of the deliv'By virtue of the provisions contained in this article, judges are not permitted, after allowing an appeal for a stay of proceedings and for a review, to change the state of the records nor that of the evidence taken, nor to order, therefore, that documents be removed and delivered to the parties who presented the same, -and certified copies put in their place.-Deciop, of September 18, 1884t.
'The ruling from which an appeal for review was allowed shall become final, if the appellant does not request the statement within the period of five days.-Decision of JanMIery 16, 1885.
Although the signature of an attorney is necessary to the instrument requesting said statement, if the first application (lid not contain it, the defect must be corrected; but if the application is made in due time it interrupts the lapse of the period and the appeal must be allowed.-Decision, of Deceinber 26, 1883.





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cry of the statement, the appellant must make use thereof and perfect his appeal before the appellate court.1
ART. 393. When any appeal has been allowed for a review only, the appellant may request the audiencia to declare it allowed for a stay of proceedings also, citing the legal provision upon which said request is based.
This application must be made within the time fixed for his appearance, if the appeal were from a final judgment, and other-wise at the time when the authenticated statement is presented for the purpose of perfecting the appeal.
ART. 394. If, at the time said request is made by the appellant, the respondent has entered his appearance before the appellate court, a copy of said instrument shall be served upon him in order that he may object thereto, if he so desires, within the three days following, upon the expiration of which, the audiencia, without further proceedings and without remedy, shall render the decision it believes conformable to law.
ART. 395. If the audiencia shall deny the application above mentioned, the costs of the issue shall be taxed against the appellant, and the appeal shall take the proper course.
If the appeal is admitted for a review and stay of proceedings, an order shall be made requiring the judge of first instance to suspend the execution of the judgment or forward the original record, as the case may be, the parties being notified thereof.
ART. 396. The respondent may also request the audiencia, within the period set for the appearance, that the appeal which was allowed by the lower court for a review and for a stay of proceedings, be declared as allowed for a review only, citing the legal provisions on which he bases his request.
This application shall follow the same course as prescribed in. article 394. If the appellate court should grant the same, an order shall be issued requiring the judge of first instance to execute the judgment appealed from, and attaching a certified copy of the latter to said order.
If the matter on appeal is a ruling or order, requiring that the record remain in the lower court for its continuation, it shall be returned to the same, a certified copy of all that is necessary for the determination of the appeal being retained.
ART. 397. Against the rulings or orders of judges of first instance disallowing an appeal, the appellant may seek the remedy of complaint before the respective audiencia.
This remedy must be prepared by requesting within five days thereThe period within which to perfect an appeal can not be extended on account of its nature.-Dehiion of December 5, 1861.





LAW OF CIVIL PROCEDURE.


after, a rehearing of the subject-matter of the ruling or order, and if it be denied, a certified copy of both resolutions.
If the judge should deny the rehearing, he shall order at the same time that, within the six days following, said certificate be given to the party interested, the date of the delivery being entered by the recording clerk at the end thereof.
ART. 398. Within the fifteen days following the delivery of the certificate, the party who requested the same shall be obliged to make use thereof, filing his complaint in the audiencia.
ARnT. 399. The said complaint, together with the copy, having been presented in time, the audiencia shall cause an order to be issued requiring the judge of first instance to make a report with the reasons for his action, and after this report has been received, the audiencia shall decide what it may deem just, without further proceedings.
If the disallowance of the appeal be considered proper, it shall cause the judge to be informed thereof by means of letters mandatory, in order that it may appear in the record.
And if it deems -that the appeal should have been allowed, it shall so declare, stating whether it is to be considered as allowed for a review only or also for a stay of proceedings, and shall order the judge, according to the cases, to transmit the original record, as prescribed in article 386, or that the appellant be furnished the certified copy referred to in articles 390, 391, and 392, in the form and for the purposes prescribed therein.

SECTION 11.-Remedies aqwint resolbttione of cudiencias.
ART. 400. Against orders of mere practice made by audiencias, there shall be no remedy whatsoever, except an action for liability.
ART. 401. Against judgments or rulings deciding incidental issues which are raised during the course of the second instance, there shall be a remedy of complaint to the same chamber within five days.'
The practice for this remedy shall be the same as is provided for rehearings in articles 377 and 378, the decision being rendered after a report from the justice ponente.
ART. 402. Against final judgments and rulings which put an end to an action, rendered by audience at second instance, there shall be no remedy but an appeal for annulment of judgment, in the cases and in the manner prescribed in title 21 of book 2 of this law.
1 That is to say, in issues occurring and raised during the second instance.Decision of October 6, 1862.
This does not take place when there is an express provision of law in contravention thereof, as is the case in article 868 of this law. And therefore a request should not be made to have the record -transferred to another chamber, as it would be illegal. -Decielon of March 2, 1863,
5901-6





82 LAW OF CIVIL PROCEDURE.
Against other decisions which they render on appeal, there shall be no remedy whatsoever, except the action for liability.'
ART. 403. An appeal for annulment of judgment shall also lie from the final judgments rendered by audiencias in matters submitted to the same in original and only instance, and from rulings deciding the remedies of complaint established in article 401, when they have the character of final judgments.

SECTION III.-Renedies against decisions of tliesupremne court.
ART. 404. The provisions of articles 400 and 401 shall be applicable to decisions of a similar character rendered by the supreme court.
ART. 405. There shall be no remedy against decisions granting, denying, allowing, or disallowing appeals for annullment of judgment, except that of revision or of criminal liability, in a proper case.

SECTION IV.-Povisions comn-ion to superior' and inferior courts. 0
ART. 406. In cases inwhich an elucidation of a judgment is requested, in accordance with the provisions of article 362, the period within which to interpose the remedy which may be proper against the same judgment, shall be counted from the date of the notification of the ruling granting or denying the elucidation.
ART. 407. After the periods fixed for the preparation, interposition, or perfection of a remedy, without seeking the benefit thereof, the subject-matter of the judicial decision shall be considered resjudicata without the necessity of an express declaration therefor.
AnT. 408. A litigant who should have taken an appeal or interposed any other remedy, may abandon the same before the judge or court rendering the decision appealed from, if he does so before the record has been forwarded to the appellate court, or before a certificate or authenticated copy has been delivered to him for the purpose of taking or perfecting the appeal.
He may also do so after having received this document, if he returns In the law of ci-il procedure an appeal for annulment of judgment to the cham 1ber which rendered the final judgment is unknown, even though it was rendered on false testimony.-Decision of -March 22, 1866.
Although a judgment rendered on false testimony or documents may be revoked and rescinded, it is indispensable that the falsity be proved and that the decision was rendered by virtue thereof and not for any other reasons, in accordance i Uh the provisions of laws 1 and 2, title XXVI, Partida 3, in accordance with the Roman laws, Digest 33, De re judicata, 3rd and 4th Code, &i ex falsis ,struamentis vel testbmoniis judicatti sit.-Decsions of February 9, 1865, end October 1, 1866.
At the present time if the judgment was rendered on false documents or testimony, there lies an appeal for revision, in accordance with article 1794 of the law in force.
Although the final judgments of courts do not generally affect those who have not been parties to the litigation, there are some exceptions, as is the case when the nullity of a will is involved, because after it has been declared null. by a court it can not be valid for a third person, even though he should not have been a party to the litigation.-Decision of IMarclt 8, 1859.





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it in its original state as a proof that he has not used the same before the appellate court.
In other cases the abandonment must be made before the appellate court.'
ART. 409. In order to consider the abandonment made, it shall be necessary that the solicitor have or present a special power therefor or that the person interested ratifies his action in writing.
When the abandonment is considered as having been made, tle costs incurred by the taking of the appeal shall be taxed against the party making it.'
TITLE X.
EXTINCTION OF ACTIONS.
ART. 410. All actions shall be considered abandoned and be extinguished by law, even if minors or incapacitated persons are parties thereto, if, after having been instituted, they are not prosecutedWithin four years when the cause is at first instance.
Within two if it is at second instance.
Within one year if on appeal for annulment of judgment.
These periods of time shall be counted from the time the last notice was served on the parties.'
ART. 411. No action shall be extinguished within the periods mentioned in the foregoing article when the want of prosecution was due to force mjeare or to any other cause independent of the will of the litigants.
In such cases said periods shall be counted from the time the litigants could have begun the prosecution.'
1See articles 845 to 848 and 1787.
'An order declaring an appeal abandoned is final. -Decision of December 20, 1862.
If the appellant does not appear before the appellate court within the time set for his appearance, it is not necessary that the parties be cited to perfect the appeal, because the first time that the respondent requests judgment in default the remedy is declared abandoned.-Decisions of September 20, 1865, and April 24, 1869.
An appeal is not considered abandoned until the court so declares.-Decision of April 6, 1866.
'A declaration of abandonment is not proper when the delay in the proceedings is due to force ma(jenre, an exception which favors the litigant whose solicitor discontinues in the exercise of his duties, without notifying the person interested in due form.-Decision of Jume 8, 1891.
The law does not require for these cases the previons citation which is required in rendering judgments or rulings which close an action, because the intention thereof is to officially close the causes.-Decision of April 29, 1885.
The extinction of an action is applicable to causes prosecuted according to the old law of procedure, with the only difference with regard to causes suspended upon the promulgation of this law of the provisions of article 419; that is to say, the periods to be counted from the day on which the law went into effect.-Deision of Decemnber 7, 1885.
'The loss of the record roll of the second instance does not constitute a cause of force majeure referred to in this article.-Dedsion of March 9, 1887.





84 LAW OF CIVIL PROCEDURE.

AnT. 412. It shall be the duty of the clerk or recording clerk in whose possession the record may be, to inform the proper judge or court when the periods fixed in article 410 have elapsed, in order that the proper order may be officially issued.
ART. 413. If the record be at first instance, and it should appear that the four years have elapsed without any of the parties having taken up the prosecution of the action when they were able to do so, the action shall be considered as abandoned, and the judge shall order the record filed in the archives, without further proceedings.
In such case the costs shall be taxed against the parties at whose instance they were incurred.
ART. 414. When the record is at second instance, or on appeal for annulment of judgment, after the respective periods have elapsed, the appeal shall be considered as abandoned, and the judgment appealed from or complained against shall be considered final, the record being ordered returned to the lower judge or court, with a certificate of the ruling containing said decision, for the proper purposes.
In such cases the costs of the appeal shall be taxed against the appellant or petitioner.
AnRT. 415. The plaintiff, appellant, or petitioner may request a rehearing or review of the rulings referred to in the two foregoing articles within five days, if he should believe that the court has erred in its declaration that the legal period has expired, by virtue of which the action has been considered extinguished, or if the case is included in the provisions of article 411.
The request can not be based on any other reason.
ART. 416. This remedy shall take the course prescribed in articles 377 and 378, the person requesting the rehearing being permitted to present his evidence of the facts upon which his request is based within a period not to exceed ten days.
ART. 417. The provisions contained in the foregoing articles shall not be applicable to proceedings for the execution of final judgments. These proceedings may be instituted at any time before the execution of the judgment, even if the periods mentioned in article 410 have expired.
ART. 418. The extinction of the first instance does not extinguish the cause of action, which may be prosecuted again in the proper action and a new action instituted, if said cause of action should not have become prescribed in accordance with law.'
ART. 419. In actions which, upon the promulgation of this law, are ',ce article 944 of the Code of Commerce with regard to thoe interruptiol of the prescription of causes of action arising from commercial contracts, and articles 1946 and 1973 of the Civil Code relating to cases in which al interruption will not be considered, etc.




LAW OF CIVIL PROCEDURE. 85

pending in any instance, the period fixed in article 410 shall be counted from the day on which, after their publication, said law goes into operation.
If said actions are filed, the pending instance shall be considered as legally extinguished without the necessity of a special declaration, unless the prosecution thereof is proceeded with within the period aforementioned.
TITLE XI.
TAXATION OF COSTS.
ART. 420. When there is an adjudication of costs, as soon as it becomes final, payment shall be enforced by compulsory process, after their taxation, if the party adjudged to pay the same should not have done so before the opposite party requests said taxation.1
AnT. 421. The taxation of costs shall be made in the superior and inferior courts by the clerk of the chamber or recording Clerk who may have taken part in the action, including therein all the costs comprised in the adjudication, and incurred up to the time of the taxation.
In the superior or inferior courts having assessors of costs by virtue of an alienable office, and until said offices revert to the State, said assessors shall make the taxation in accordance with the provisions of this law.
ART. 422. Fees appertaining to officials subject to schedules, shall be regulated according thereto.
The fees of attorneys, experts, and other officials not subject to a schedule, shall be fixed by the persons interested in a detailed and signed statement, which they shall personally present at the clerk's 1The costs of the second instance can not be taxed against a litigant who obtained a favorable judgment at first instance, and is forced to appear before the higher court by reason of the appeal taken by the opposite party.-Decision of April 14,1882 The costs can in no case be taxed against the respondent.-Decision of April 25, 1887.
The adjudging court is to consider the good or bad faith of the litigants, for the purpose of taxing the costs at first instance.-Deisions of April 14, 1882, October 25 and December 15, 1883, May 21, 1884, May 2O and December 16, 1885, March 31 and May 22, 1886.
After the adjudication upon costs, they shall be recovered by compulsory process, without permitting foreign questions to be raised, which must be decided in a separate proceeding.-Decisio16 of ,Tanuary 17, 1883. When the plaintiff is granted part of what he desires, the rest being denied him, he may be adjudged to pay the costs-Decision of February 13, 2886. When the decision of the lower court is affirmed in all its points, the appellant is obliged to pay the costs.-Decision of September 30, 1886. The costs of the second instance can not be imposed in any case upon the respondent who has appeared to support the judgment le obtained in the lower court.Decision of April 25, 1887.




LAW OF CIVIL PROCEDURE.


office, without the necessity of a letter of transmittal, or through the solicitor of the party whom they defended, after the judgment or ruling in which said costs were imposed becomes final. The recording clerk shall include in the taxation the amount appearing in the statement.
APT. 423. Fees for instruments, proceedings, or other acts which are useless, superfluous, or not authorized by law, and the items of statements which are not mentioned in detail, or which relate to fees not incurred in the action, shall not be included in the taxation of costs.
Neither shall there be included in said taxation the costs of proceedings or of issues which had been expressly adjudicated against the party who obtained the final judgment, such costs being at all times on account of said party.1
ART. 424. After the taxation of costs has been made and presented, no other entry shall be included or added thereto, the person interested reserving the right to demand payment therefor, if he should so desire, of the person and in the manner he may see fit. ART. 425. The taxation of costs shall be submitted to each of the parties for examination, for a period of three days, the party who has been adjudged to pay the same making the first examination.
ART. 426. If the fees of the attorneys should be objected to as being excessive, the attorney against whom the complaint is directed shall be heard for a period of two days, and the record shall then be transmitted to the association of attorneys, and where there is none, to two attorneys appointed by the judge or chamber, for a report thereon. Should there not be two attorneys at the place where the action was heard, or all of them should be interested in the question, the data shall be transmitted to the nearest association or college of attorneys, through the proper judge of first instance.
The same action shall be taken when fees of experts or other officials not subject to a schedule are objected to; in such case, the report of the academy, college, or guild to which they belong shall be heard, and if there be none, that of two persons of the same profession. Should there not be any in the place, the neighboring places may be resorted to.
ART. 427. The chamber or the judge in a proper case, in view of the statements of the parties or persons interested and the reports received with regard to the fees, shall -approve the taxation or shall order the changes made therein which they may consider just and at the cost of the proper party, without further remedy.2
AuT. 428. When the taxation of costs is objected to, because fees or charges have been included therein, the payment of which does not appertain to the person adjudged to pay the costs, said objection shall be heard and decided according to the procedure and with the remedies prescribed for incidental issues.
'See article 858 of the Organic Law.
2After the taxation of costs has been approved there is no further reiaedy.-DedLon of April 30, 1866.




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TITLE XII.
DISTRIBUTION OF BUSINESS.
AnT. 429. All civil matters, whether of contentious or voluntary jurisdiction, shall be distributed among the courts of first instance when there is more than one in the town, and in all cases among the different clerks' offices of each court.
ART. 430. Judges of first instance shall not permit that any matter be proceeded with, unless a memorandum of distribution appears thereon.
In the case said memorandum does not appear, he can not issue any other order but one requiring that the matter be submitted for distribution.
ART. 431. Notwithstanding the provisions contained in the foregoing articles, the first proceedings in cautionary attachments, redemptions,' summary proceedings to prevent the construction of a new work or the demolition or strengthening of a construction, building, or tree about to collapse or fall, the custody of persons, and in all other matters which, in the judgment of the judge, are of so peremptory and urgent a character that a delay thereof would give a reasonable motive to fear that irreparable injury would be caused to the persons interested, may be made and carried into effect by any of the judges or clerks of whom the same is requested.
In such cases, as soon as the urgent action has been taken, the matter shall be submitted for distribution without a delay of more than three days.
ART. 432. With the exception of the cases mentioned in the foregoing article, the judges issuing orders in a matter which has not as yet been distributed shall be disciplinarily corrected, according to the provisions of the following title.
ART. 433. Any distributor or cjerk of the court who distributes any matter to a court or clerk's office other than the one to which it rightfully belongs, shall incur a fine of not less than 65 nor more than 375 pesetas, without prejudice to the criminal liability which may be proper.
ART. 434. A clerk who acts in a matter subject to distribution without it having been assigned to him, shall incur a fine of double the fees he may have earned thereby.
ART. 435. Verbal actions, actions of unlawful detainer, and other matters over which municipal judges have jurisdiction, are not subject to distribution.
Where there are two or more, each shall take cognizance of those appertaining to his district, in accordance with the rules established
'Betracto: The right which by law, custom, or agreement a person has to annul a sale and himself take the thing sold to another for the same price.--Esriche, D'hcionario de Legislacl6n y Jurisprudecia.




88 LAW OF CIVIL PROCEDURE.

in articles 62 and 63, with an appeal to the court of first instance of the same district in which they shall be distributed among its clerk's offices.1

TITLE XIII.

DISCIPLINARY CORRECTIONS.

ART. 436. Municipal judges and judges of first instance, and the chambers of justice of the audiencias and of the supreme court, shall have the power to disciplinarily correct1. Private individuals who do not observe the proper order and respect in judicial proceedings.
2. Officials who take part in actions for the offences they may commit.
ART. 437. Whosoever shall interrupt a hearing of an action, or any other formal judicial proceeding, by manifesting ostensible signs of disapproval or of approval, showing a lack of the proper respect and consideration due inferior or superior courts, or by disturbing order in any manner whatsoever, without his action constituting a crime
1The provisions of this article have been supplemented by the royal order of September 20, 1891, the text of which is as follows:
1. In towns in which there are two or more municipal judges, each shall take cognizance of the matters appertaining to his district, in accordance with the provisions of article 435 of the law of civil procedure, and subject to the rules of competency established in articles 62, 63, and 1560, without the parties being permitted to submit either in an implied or express manner to one of them to the exclusion of the other.
2. Municipal judges shall not proceed with any matter, the cognizance of which pertains to another district, and shall not issue any order therein except one transmitting the papers or petitions to the competent court.
Letters rogatory shall be executed by the judges in whose districts the proceedings referred to in the commission are to be fulfilled.
3. Judges of first instance, in taking cognizance of appeals, and chambers of justice in deciding questions of competency, shall, in a proper case, impose the disciplinary corrections established in the Law of Civil Procedure upon the secretary of the municipal court, who should not have entered in a statement the circumstances determining the competency, or upon the municipal judge if, said circumstances having been entered, he shall not duly consider them.
4. In every municipal court of a town in which there are two or iore of said courts, there shall be kept a register of all oral actions and proceedings to avoid litigation which may be held, in which there shall be entered the (late of the proceedings or act, the purpose thereof, the names of the plantiff and of the appellant, their domiciles, the street, place, or location of the estate, when the action involves a real action, and any other data which may be necessary to determine the competency.
5. For the purposes of said register, municipal judges shall furnish a daily report to the presiding judge of the territorial andiencia of the oral actions and proceedings to avoid litigation (actos de conciliad6n) which may have been had, stating the details referred to in the foregoing number and the result of each proceeding or action.
6. The presiding judges of the audiencias shall observe the greatest care to secure a proper fulfillment of the foregoing provisions, utilizing for this purpose the powers granted them by the organic law of the judicial service.




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TRANSLATION OF THE LAW OF CIVIL PROCEDURE FOR CUBA AND PORTO RICO, AVITH'f ANNOTATIONS, EXPLANATORY NOTES, AND AMENDMENTS MADE SINCE THE AMERICAN OCCUPATION. WAR DEPARTMENT, DIVISION OF INSULAR AFFAIRS, \9o\ CA6 JANUARY, 1901. LAW LIBRARY VIRGINGTO WASHINGTON GOVERNMENT PRINTING FCC 1E200 OFFICE. 1901.

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CONTENTS. Page. Boox I.-Provisions common to contentious and voluntary jurisdiction.1 TITLE I.-Appearance in an action --------------------------------1 Section I. Litigants, solicitors, and attorneys -------------------1 Section II. Legal aid to the poor -------------------------------7 TITLE II.-Competency and questions of jurisdiction ------------------15 Section I. General provisions---------------------------------15 Section II. Rules to determine competency -------------------16 Section III. Questions of competency.------------------24 Section IV. Remedy of complaint against administrative authorities31 TITLE III.-Applications to civil courts for modification of actions of ecclesiastical courts ---------------------------------------------32 TITLE IV.-Consolidations --------------------------------------6 Section I. Consolidation of actions----------------------------36 Section II. Consolidation of records of proceedings ----------------37 TITLE V.-Challenges -----------------------------------------42 Section I. General provisions --------------------------------42 Section II. Challenge of justices, judges of first instance, and assessors43 Section III. Challenge of municipal judges----------------------47 Section IV. Challenge of subordinate officials of superior and inferior courts -----------------------------------------------49 TITLE VI.-Judicial procedure and periods of time -. ---------------52 Section I. Judicial proceedings in general-----------------------52 Section II. Legal working days and hours ----------------53 Section III. Notifications, citations, summonses, and requisitions ---54 Section IV. Service of notifications in court room-------------57 Section V. Letters requisitorial, letters rogatory, letters mandatory, and mandates ------------------------------------------58 Section VI. Judicial periods of time, compulsory process, and defaults. 61 TITLE VII.-Dispatch, hearing, voting upon, and decision of judicial matters --------------------------------------------------64 Section I. Ordinary dispatch and hearing -----------------------64 Section II. Justices "ponentes" ------------------------------67 Section III. Voting and decisions in actions-. .---------------------69 Section IV. Manner of adjusting disagreements-------------------71 TITLE VIII.-Manner and form in which judicial decisions shall be rendered ----------------------------------------------------2 Section I. Judgments--------------------------------------72 Section II. Form in which judicial resolutions shall be rendered74 TITLE IX.-Remedies against judicial resolutions and their effects ------76 Section I. Remedies against resolutions of judges of first instance .76 Section II. Remedies against resolutions of audiencias --------------81 Section III. Remedies against decisions of the Supreme Court ------82 Section IV. Provisions common to superior and inferior courts -. ---82 III b

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IV CONTENTS. BOOK I-Continued. TITLE X.-Extinction of actions.-. TITLE XI.-Taxation of costs. TITLE XII.-Distribution of business Page. 83 85 87 TITLE XIII.-Disciplinary corrections BOOK II.-Contentious jurisdiction TITLE .-Proceedings to avoid litigation TITLE II.-Declaratory actions Chapter I. Provisions common to declaratory actions. Section I. Rules to determine the proper action Section II. Preparatory proceedings Section III. Presentation of documents Section IV. Copies of instruments and documents and their purp oses ----------------------Chapter II. Declaratory actions of greater import. Section I. Complaint and summons. Section II. Dilatory exceptions._ Section Section III. Answers, counterclaims, replications, and rejoinders IV. Admission of evidence, time within which to be taken, and general provisions relating thereto Section V. Mea 1. Confession 2. Public d 3. Private chants --4. Comparis 5. Opinion 6. Judicial i 7. Evidence 8. Challeng Section VI. Fin Chapter III. Action& Chapter IV. Oral ac TITLE III.-Incidental is TITLE IV.-Proceedings TITLE V.-Settlements b Section I. Settlement Section II. Settleme TITLE VI.-The second i ns of proof n in court. documents documents, correspondence, and books of meron of handwriting. of experts.-. nspection. of witnessese of ivitnesses al pleadings, hearings, and judgments s of lesser import tions sues. ------------------.----. in default. y arbitrators and amicable compounders .. ts by arbitrators nts by amicable compounders. nstance. Section I. General provisions Section IL Appeals from final judgments rendered in actions of greater import .----.Section III. Appeals from interlocutory judgments and rulings and in actions other than those of greater import. TITLE VIL-The remedy of civil liability against judges and associate justices ---TITLE VIII.-Execution of judgments Section I. Judgments rendered by Spanish courts and judges Section II. Judgments rendered by foreign courts TITLE IX.-Intestate proceedings. Section I. Provisional measures Section II. Designation of heirs ab intestato Section III. Intestate proceedings. Section IV. Administration of intestate successions 88 93 93 98 98 98 101 103 106 107 107 109 112 --.--. 114 119 119 122 127 129 130 134 135 139 141 143 148 152 155 160 160 165 168 168 171 176 '178 181 181 186 187 187 191 195 196 9 A r k

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CONTENTS. BooK II-Continued Page. TITLE X.-Testamentary proceedings------------------------------201 Section I. General provisions --------------------------------201 Section II. Voluntary testamentary proceedings -------------------204 Section III. Necessary testamentary proceedings-----------------211 Section IV. Administration of testate inheritances-----------------211 TITLE XJ.-Adjudication of property to persons not designated by name212 TITLE XII.-Insolvency proceedings----------.-----------------217 Section I. Composition and respite-----------------------------217 Section II. Declaration of insolvency ----------------------------222 Section III. Proceedings consequent upon a declaration of insolvency224 Section IV. Citation of creditors and appointment of trustees-------. 228 Section V. First record-Administration of the estate of the insolvent-----------------------------------------------------234 Section VI. Second separate record-Acknowledgment, classification, and payment of credits-------------------------------------239 1. Acknowledgment of credits --------------------------------239 2. Classification of credits-----.----------------------.----242 3. Delay and its effects----.-------------------------------245 4. Payment of credits-------------------------------------47 Section VII. Third separate record-Classification of insolvency proceedings.--------------------------------------------------249 Section VIII. Settlements between creditors and the insolvent------250 Section IX. Maintenance of the insolvent-----------_-_-------252 TrrrLE XIII.-Proceedings in bankruptcy -----------------------------253 Section I. Declaration of bankruptcy-.-.--.---.--.-.-------.-. 255 Section II. Administration of the bankruptcy.--.-_ -------265 Section III. Retroactive effects of bankruptcy--.---.-------.----268 Section IV. Examination, classification, and payment of credits against the estate of the bankrupt------------------------------271 Section V. Classification of the bankruptcy and discharge of the bankrupt-------------------------------------------------272 Section VI. Settlements between creditors and the bankrupt-------275 TrrLE XIV.-Provisional seizures and security of property in litigation--278 Section I. Provisional seizures ---------------------------------278 Section II. Security of property in litigation---------------------283 TITLE XV.-Executory actions -------------------------------------285 Section I. Executory process---------------------------------285 Section II. Compulsory process -------------------------------300 Section III. Intervention -----------------------------------310 TITLE XVI.-Compulsory process in commercial affairs ..314 TITLE XVII.-Actions of unlawful detainer--------------.----.-----318 Section I. General provisions ----------------------------------318 Section II. Actions of unlawful detainer before municipal courts .320 Section III. Actions of unlawful detainer before courts of first instance. 323 Section IV. Execution of judgments in actions of unlawful detainer-. 325 TITLE XVIII.-Temporary maintenance-----------------------------327 TITLE XIX.-Redemptions (Retractos)--------------------------329 TITLE XX.-Summary proceedings relating to property----------------331 Section I. Summary proceedings to acquire possession -------------332 Section II. Summary proceedings to retain or recover possession ----335 Section III. Summary proceedings based upon a new construction.337 Section IV. Summary proceedings against ruinous constructions----. 340 V

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CONTENTS. BooK II-Continued. Page. TITLE XXI.-Appeals for annulment of judgment------------------8 341 v Section I. The court competent to take cognizance of appeals for annulment of judgment -------------------------------------341 Section II. Cases in which appeals for annulment of judgment lie--342 Section III. Preparation of the appeal for annulment of judgment by reason of a violation of law or of legal doctrine ------------------351 Section IV. Interposition and admission of an appeal for violation of law or doctrine5------------------------------------------85 Section V. Hearing and decision of appeals admitted for violation of law or legal doctrine -------------------------------------361 Section VI. Interposition, admission of, and proceedings in an appeal for breach of form ---------------------------------------363 Section VII. Appeals for breach of form and at the same time for violation of law or doctrine -----------------------------------366 Section VIII. Appeals from decisions rendered by amicable compounders ----------------------------------------------367 Section IX. Appeals taken by the department of public prosecution. 367 Section X. Provisions common to all appeals for annulment of judgment -------------------------------------------------368 TITLE XXII.-Appeals for review --------------------------------370 Section I. Cases in which an appeal for review lies ----------------370 Section II. Terms within which to interpose an appeal for review. -371 Section III. Hearing and determination of appeals for review-------371 Section IV. Decisions rendered by virtue of appeals for review.--.--372 BooR III.-Voluntary jurisdiction---------------------------------375 PART FIsT ------------------------------------------------------75 TITLE I.-General provisions--------------------------------375 TITLE II.-Adoption and arrogation---------------------------377 TITLE III.-Designation of tutors and curators and their appointment378 Section I. Designation of tutors ---------------------------378 Section II. Appointment of curators ad bona -------------------379 Section III. Appointment of curators for incapacitated persons. 380 Section IV. Designation of curators ad litem -----------------381 Section V. Appointment to the office of tutor or curator ------382 Section VI. Provisions common to the foregoing sections-------384 TITLE IV.-Custody of persons----------------------------385 TITLE V.-Substitution for the consent of parents, grandparents, or curators to contract marriage ----------------------------------389 TITLE VI.-Manner of elevating a verbal will or codicil to a public instrument----------------------------------------------394 TITLE VII.-Opening of sealed wills and the filing in protocols of testamentary memoranda---------------------------------------395 TITLE VIII.-Proceedings to dispense with the law ---------------399 TITLE IX.-Investiture of power to appear in court ----------------01 TITLE X.-Proceedings to perpetuate testimony -------------------402 TITLE XI.-Alienation of the property of minors and incapacitated persons and transactions with their rights ----------------------403 TITLE XII.-Administration of property of absent persons whose whereabouts are unknown----------------------------------406 TITLE XIII.--Voluntary judicial public sales-.--------------409 TITLE XIV.-Judicial possession in cases in which summary proceedings to acquire possession do not lie ------------------------410 TITLEXV.-Surveys and demarcations --------------------------411 VI

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CONTENTS. BOOK III-Continued. Page. PART sEcoN.-Acts of voluntary jurisdiction in commercial matters ---. -413 TITLE I.-General provisions--.--------------------------------413 TITLE II.-The deposit and examination of commercial effects -----415 TITLE III.-Attachment and temporary deposit of the value of bills of exchange -------------------------------------------417 TITLE IV.-Classification of averages and liquidation of gross average and contribution thereto ---------------------------------418 TITLE V.-Discharge, abandonment, and intervention of merchandise and bond for cargo --------------------------------------420 TITLE VI-Sale and mortgage of merchandise in urgent cases and the repairing of vessels. TITLE VII.-Other commercial acts requiring peremptory judicial intervention ----------------------------------------------425 TITLE VIII.-Appointment or arbitrators and experts in insurance contracts ---------------------------------------------426 APPENDIX I.-Changes in and amendments to the Civil Procedure for the Island of Cuba made by the military government during the years 1899 and 1900. 431 Order No. 41, April 14, 1899.-Organization of the supreme court-------431 Constitution and attributes of the supreme court --------------432 President of supreme court.-.---------------------------------435 Secretary or chief clerk -------------------------------------436 Deputy clerks of the court --------------------.---------------. 437 Fiscal and assistant fiscales -.-------------------------------------437 Subordinate employees ---------------------------------------438 Appointment, term of office, priority, possession of office, oaths of office, and salaries of functionaries, employees, and subordinates of the supreme court--. .--------------------------------------438 Qualifications and requirements for appointment to office in the supreme court ----------------------------------------439 Order No. 63, May 25, 1899.T'otos reservados -------------------------440 Order No. 66, May 31, 1899.-Civil marriages-----------------------441 Order No. 69, June 3, 1899.-Extension of time for collection and payment of obligations -----------------------------------------442 Order No. 92, June 26, 1899.-Appeals for annulment of judgment--.---. 444 Order No. 96, June 29, 1899.-Administrative proceedings (contencioso administrativo) -----------------------------------------------463 Order No. 114, July 21, 1899.-Putting ordef No. 92 in force-----------464 Order No. 135, August 11, 1899.-Time for appearance in court changed. 464 Order No. 157, September 5, 1899.-Court in full (tribunal en pleno)------465 Order No. 176, September 21, 1899.-Legal holidays -----------------465 Order No. 42, January 26, 1900.-Birth certificates relating to marriage. 466 Order No. 166, April 23, 1900.-Intervention of solicitors abolished-----467 Order No. 141, April 7, 1900.-Modifications of Civil Procedure--.----469 Order No. 192, May 9, 1900.-Appeals for annulment of judgment------470 Order No. 242, June 18, 1900.-Modifications of Civil Procedure------. --471 Order No. 307, August 8, 1900.-Relating to marriages ------------473 Order No. 427, October 15, 1900.-Writ of habeas corpus --------------475 Order No. 438, October 21, 1900.-Apuntamientos abolished------------483 APPENDIX II.-Changes inand amendments to the Civil Procedure for the Island of Porto Rico made by the military government during the years 1898, 1899, and 1900---------------------------------------------------485 Order No. 19, December 2, 1898.--Establishment of the supreme court.-485 VII

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VIII CONTENTS. APPENDIX II-Continued. Page. Order No. 71, May 31, 1899.-Writ of habeas corpus authorized--------486 Circular No. 17.-Instructions relative to habeas corpus .---------------486 Order No. 88, June 27, 1899.-United States provisional court established. 488 Order No. 118, August 16, 1899.-Judicial districts of Porto Rico -------491 Order No. 173, October 28, 1899.-Judicial acts to be paid for in advance502 Order No. 182, November 18, 1899.-Amendment of Order No. 118, relating to appeals------------------------------------------------503 Order No. 186, November 24, 1899.-Regulations for publishing legal notices ------------------------------------------------------503 Order No. 194.-Schedule of fees to be charged by judicial officers------504 Order No. 47, March 6, 1900.-Interpretation of certain articles of the t. Treaty of Paris-----------------------------------------------507 IM 4.

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INTRODUCTORY NOTE. The translators of the present Code of Civil Procedure beg to call attention to the fact that there have been inserted as footnotes to the present translation over one thousand decisions rendered by the supreme court of Madrid, which serve to elucidate the language of the text. These decisions are authoritative interpretations, and in the Spanish courts have the force of law. The citations might have been more numerous, but only such decisions have been inserted as in the judgment of the translators would be useful in the prosecution of actions before the insular courts. The references, also inserted as footnotes, calling attention to other laws in force, to royal decrees and 'military orders, which modify the procedure prescribed by the code, it is thought will also aid in making the work of practical use, both for those who desire to inform themselves as to the methods of Spanish procedure and those called upon to practice before the courts in the islands of Cuba and Porto Rico. They beg further to explain that, as this translation was sent to the printer by parts, as fast as they were concluded, and then at once put into plates, it became impossible for them to modify in time some expressions, which may perhaps give occasion for criticism. The principal changes intended by them to be made in their work are the following: In the first title, on page 1, they said: "appearance in an action," while it might have been better to say "appearance in court," as it relates to voluntary as well as contentious jurisdiction. Page 1, line 13, read: "may appear in court." Page 2, line 1, read: "appearance in court." Page 7, Section II: Instead of "legal aid to the poor" it might be better to say "proceedings in formal pacperis." Page 32, Title III, read: Civil remedies against actions of ecclesiastical authorities." Page 74, line 16, instead of "voted in chamber" read "voted in court" as the former expression would lead one to believe that the voting was secret. 5190 u IX

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INTRODUCTORY NOTE. Page 106, Section IV: Read "copies of papers and documents and the purposes for which they are filed," instead of "and their purposes." Page 106, article 514, first line: "every instrument" should be made to read "every petition." Page 125, first line, subdivision 2, article 597: For "ancient public instruments" read "ancient deeds." FRANK L. JOANNINI, Offiial Translator. M. E. BEALL, Assistant. JANUARY, 1901. I hereby certify that the following is a copy of the translation of the Law of Civil Procedure for Cuba and Porto Rico on file in the Division of Insular Affairs, War Department, made by the official translators thereof. CLARENCE R. EDWARDS, LieutenantColonel Forty-seventh Infantry, U. S. Y. Chief of Division. x

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ROYAL DECREE. EXCELLENCY: His Majesty the King (whom God preserve) has on this date deemed proper to issue the following decree: "The General Codification Commission of the Colonial Department having concluded the study of the changes advisable in the Law of Civil Procedure in force in the Peninsula, for its application to the Islands of Cuba and Porto Rico, upon the recommendation of the respective Minister, with the advice and consent of said Commission, and making use of the authority granted my government by article 89 of the fundamental law of the Kingdom, "I hereby decree the following: "Article 1. The annexed Law of Civil procedure amended for the Islands of Cuba and Porto Rico is approved. "Art. 2. Said law shall go into effect in both Islands upon the 1st day of January of the year 1886. "Art. 3. For the survey and demarcation of estates owned in common (haciendas comuneras), the Courts shall continue to apply the provisions of the Regulations of March 6, 1819, and the articles added thereto by the Audiencia of Puerto Principe, in so far as not substituted or modified by the provisions contained in title 15, book 3 of the annexed law, without prejudice to the changes which the Government, after the proper investigation, may decree hereafter relating to said regulations. "Given in the Palace on the 25th day of September, 1885.ALFONSO. Manuel Aguirre de Tejada, Minister for the Colonies." Which I communicate to Your Excellency by Royal order for your information and other purposes. May God preserve Your Excellency many years. Madrid, September 25, 1885. TEJADA. To the GOVERNORS-GENERAL OF CUBA AND PORTO RICO. XI

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LAW OF CIVIL PROCEDURE. BOOK I. PROVISIONS COMMON TO CONTENTIOUS AND VOLUNTARY JURISDICTION.' TITLE I. APPEARANCE IN AN ACTION. ARTICLE 1. He who is obliged to appear in a proceeding in questions of contentious as well as in those of voluntary jurisdiction, shall do so before the competent judge or court in the manner prescribed by this law. SECTION I.-Litigants, solicitors, avid attorneys. ART. 2. Only such persons as are in the full exercise of their civil rights may appear in an action. The legal representatives, or those who, according to law, are to supply the want of capacity of persons not included in the aforesaid conditions, shall appear for them. The legal representatives of corporations, associations, and other judicial entities shall appear for them.' Contentious jurisdiction, that jurisdiction exercised when one invokes the aid of the law against one that disputes his demands, as distinguished from voluntary jurisdiction, when the person having the right to resist the demand appears as a consenting applicant.-Century Dictionary. 2The distinction between procurador and abogado is not in every particular that between solicitor and attorney, but the translation conveys the idea. The procurador is not a lawyer, although his signature to the pleadings is essential, excepting in certain cases as prescribed in the law. 8 Without attempting a full enumeration, and referring to article 534 of this law, the persons who can not appear in an action, and consequently who can not grant powers of attorney to others to appear in their behalf, unless it be with the intervention of their legal represetatives, are the following: Minors who are orphans are legally represented by their guardians (Civil Code, art. 262), who in certain cases require the consent of the family council. (1bd, 269, Nos. 12 and 13.) If the interests of the guardian are opposed to those of the orphan, as, for example, in the case of number 9 of article 237 of the Civil Code, the representation the minor in court pertains to the protator. (lbid, 236, number 2.) 0ildrena not emantipated are represented by their parents (Civil Code, art. 155), and when said parents have an interest which is incompatible with those of their children, 5190-1 1

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LAW OF CIVIL PROCEDURE. ART. 3. Appearance in an action shall be made through a solicitor, (procurdor) legally qualified to act before the superior or inferior court taking cognizance of the action, and having a power declared sufficient by an attorney.2 the latter shall be represented by the next friend referred to in article 165. If the parents are deprived of the parental authority, or if it be suspended (Civil Code, 4 articles 70, paragraph 3; 73, par. 2, of number 2, and 168 to 171), the guardian appointed will represent the children. x Minors emancipated by the concession of the father or mother are represented in court by their parents, or, in their absence, by a guardian. (Articles 314, number 3, and 317 of the Civil Code.) Minors who obtain the benefit of majority by concession of the family council are represented by a guardian. (Civil Code, articles 322 to 324 and 317, above referred to.) Married persons over 18 years of age may appear in person in court in their own name and in that of their wives, according to articles 59 and 315 of the Civil Code, which must be understood in this manner, because the emancipation referred to in article 317 relates to that of number 3 of article 314. Persons sufferring interdiction or undergoing a sentence. (See articles 228, 229, 262, 269, numbers 12 and 13, and 274 of the Civil Code, and the proper articles of the Penal Code.) The deaf and dumb and the insane are legally represented by their guardian or, in a proper case, by the next friend appointed by the court or by the public prosecutor.-Civil Code, articles 215, number 3; 262, 269, numbers 12 and 13, and 274. In actions relating to prodigals, when the defendant does not appear, he shall be represented by the public prosecutor or, in a proper case, by the next friend appointed by the court.-Civil Code, article 223. Married woman.-The cases in which she does and does not require the permission of her husband to appear in an action are mentioned in articles 60 and 1387 of the Civil Code. Bankrupts.-After a declaration in bankruptcy, the bankrupts are disqualified from administering any of their property (1161 of this law and 1914 of the Civil Code), and consequently are deprived of the full exercise of their civil rights. The depositaryadministrator is the legal representative of the estate of the bankrupt (law, art. 1183) until trustees are appointed. After this has been done the trustees represent the bankrupt in court, defending his rights and taking the actions and exceptions incumbent upon them.-Civil Code, article 1183, rule 1. Judicial persons (corporations, associations, and other judicial entities) .-Towns and municipalities are represented by the procuradores sindicos, and in towns annexed to others in order to constitute a municipality, the presidents of their administrative boards also represent the respective towns, when actions or rights are involved which pertain exclusively to the said towns.-Articles 56 and 90 of the law of 1877, and Royal order of January 30, 1875. Provinces were represented by the provincial deputy, appointed for the purpose in accordance with article 37 of the law of September 25, 1863; afterwards they were appointed by the governor, in accordance with articles 9 and 70 of the law of October 2, 1877, and subsequently by the vice-president of the provincial commission, in accordance with article 98, number 6, of the law of August 29, 1882. The public treasury has been represented by the department of public prosecution in the manner prescribed by the decree of July 9, 1869, and by the order of the same date; but since the decree of March 16, 1886, it is represented by the state attorneys. 2 According to a civil order, dated April 23, 1900, the intervention of solicitors has ceased to be obligatory in Cuba. (See order in Appendix.) 2

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LAW OF CIVIL PROCEDURE. 3 The power must be attached to the first document submitted, which shall not be accepted without this requisite, even though it contains a promise to submit it.1 ART. 4. Notwithstanding the provisions contained in the foregoing article, the parties in interest may appear in person or through their administrators or general attorneys (but can not make use of the services of persons who are not qualified solicitors in towns where there are such): 1. In actions to avoid litigation (actos de con.ciliacidn). 2. In actions of which municipal judges take cognizance in first instance.2 3. In actions involving interests of between 250 and 3,000 pesetas (de menor ouantia). 4. In actions before arbitrators or friendly compromisers. 5. In proceedings involving various interests (jucios universales) when the appearance is limited to the filing of creditors' claims or demands, or to attend meetings. 6. In pauper applications, incidental to an action, temporary support, cautionary attachments, and urgent measures preliminary to the action. 7. In proceedings of voluntary jurisdiction. When the parties in interest do not appear in person, or by their general agents or representatives, they shall employ a duly qualified solicitor, in towns where there are such. In. the absence of a qualified solicitor, they shall appoint as their representative any resident of the town, of full age, in the enjoyment of his civil rights, and able to read and write correctly, giving him the proper power of attorney. ART. 5. The acceptance of the power is presumed from the fact of its use by the solicitor. After the power has been -accepted, it becomes the duty of the solicitor-' 1 The appearance of a solicitor in an action shall not be justified by means of a certificate stating that a sufficient power is attached to other papers, when said certificate is not properly authenticated by the competent official.-Decision Qf November ,1, 189'. 2l nstannaa: The institution and prosecution of a suit from its inception until definite judgment. The first instance is the prosecution of the suit before the judge competent to take cognizanee of it at its inception; the second instance is the exercise of the same action before the court of appellate jurisdiction, and the third instance is the prosecution of the same suit, either by an application of revision before the appellate tribunal that has already decided the cause or before some higher tribunal having jurisdiction of the same.-Bower' s Law Dictionary, Rawle's revision, Boston, 1897. 3Solicitors can not acquire by purchase or cession any of the property or rights which may be the subject of an action in which they appear by reason of their office.Civil Code, art. 1459.

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LAW OF CIVIL PROCEDURE. 1. To prosecute the action until he ceases taking part therein for any of the causes mentioned in article 9. 2. To forward to the attorney, selected by his client or by himself, when so authorized by the power, all documents, data, and instructions which may be transmitted to him or which he may acquire, doing everything possible to defend the interests of his client, under the liability imposed by law upon agents. Should he have no instructions or should those given by his client not be sufficient, he shall take such action as may be required by the nature or character of the business. 3. To recover from the attorney who may have ceased administering a business, the copies of the instruments, documents, and other data which may be in his possession, for the purpose of delivering them to the person succeeding him in said administration. 4. At all times to keep his client and the attorney informed of the progress of the business entrusted to him, and deliver to the latter copies of all decisions of which he may be notified. 5. To pay all the expenses or costs caused at his instance, including the lawyers' fees, even though the latter should have been appointed by his principal.' An. 6. While the solicitor continues in the discharge of his duties he shall receive and sign the summons, citations, orders, and notifications of all kinds, including those of judgments served on him during the course of the action and until the judgment has been executed, which acts shall have the same force as if the principal had taken a direct part therein, and he can not request that said matters be sent directly to his principal. The following are excepted: 1. The summons, citations, and orders which the law requires to be served on the parties interested in person. 2. Citations which require the compulsory presence of the person cited.' An. 7. If, after a legal proceeding has been instituted, the principal does not furnish to his solicitor the funds necessary to prosecute it, the latter may request that he be judicially compelled to do so. This application shall be made to the superior or inferior court taking cognizance of the case, which shall grant the same, fixing the amount it considers necessary and the term within which it is to be furnished, under admonition of judicial compulsion (apercibimiento de aJn eflte/0). 1 All costs specified in the schedule have the character of judicial costs (Decision of May 10, 188), and they shall always be preferred and must not be confounded with credits of private individuals.-Decision of March 81, 1886. 2 The citations, sunmons, etc., served on the solicitor while he continues in his office have the same force of law as if served on the principal himself.-Decision of May 2M, 1878. V 4

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LAW OF CIVIL PROCEDURE. 5 ART. 8. When a solicitor is compelled to demand of his tardy principal the amounts which the latter owes him for his fees and for the expenses he may have incurred in the action, he shall present to the superior or inferior court taking cognizance of the question a detailed account, with the proper vouchers, and shall take oath that the amounts appearing therein and claimed by him are due and unpaid; upon which the court or judge shall order that the principal be required to pay the same, with the costs, within a period not to exceed ten days, under admonition of judicial compulsion. The heirs of solicitors shall have the same rights as the solicitors themselves with regard to credits of this character which may be left by the latter. After the payment has been made, the debtor may demand satisfaction for any injury, and if it should appear that the solicitor has presented an excessive account he shall return double the amount of the excess, with all costs arising up to the time when full settlement for the injury is made.1 ART. 9. The solicitor shall cease to represent his principal1. By reason of the express or implied revocation of the power, as soon as said revocation is entered in the record. Said power shall be considered as impliedly revoked by the subsequent appointment of another solicitor who shall appear in the same proceeding. 2. When the solicitor shall voluntarily abandon the matter, or discontinue the practice of his profession; in either case he shall be obliged to give timely notice to his principals, either judicially or by means of a notarial instrument. Until the cessation for either of the two above-mentioned reasons shall appear in the record and be declared, the solicitor can not abandon the representation he may have. 3. When the principal has withdrawn from the prosecution or defense made by him. 4. When the principal shall transfer to another his interests in the matter in litigation, as soon as the transfer has been recognized by a resolution or final ruling, with a hearing of the opposite party. 1 When a power is granted as a legal representative of a third person, the latter must be considered as the principal and his heirs are the real debtors against whom the solicitor must bring his action.-Decision of June 8, 1886. According to a royal decree of September 25, 1889, the provisions contained in this article are not applicable to municipalities, in accordance with the provisions of article 143 of the municipal law of October 2, 1877.-Decision of September 25, 1887. The chamber of the audiencia in requiring a solicitor to pay double the excess charged in a sworn account has correctly applied the third paragraph of article 8, on which the debtor based his right; because the declaration to the effect that the account was excessive necessarily carries with it as a penalty the return of double the excess and the payment of all the costs arising until full settlement for the injury is made.-Decision of October 4, 1888.

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LAW OF CIVIL PROCEDURE. 5. When the character in which the principal appeared in the action has ceased. 6. Upon the conclusion of the action or proceeding for which the power was given, if given for that specific purpose only. 7. By reason of the death of the principal or of the solicitor. In the former case the solicitor shall be obliged to inform the judge or court of the occurrence as soon as he receives notice thereof, duly proving the death, in order that his representation may be considered as ended, and if a new power executed by the heirs or representatives of the deceased should not be presented, the judge or court shall order that they be cited to appear in the proceedings within the period which may be fixed, under the proper admonition. If the solicitor should die, the principal shall be informed thereof, for the purposes mentioned.' ART. 10. The litigants shall be guided by attorneys legally qualified to practice their profession in the superior or inferior court taking cognizance of the proceedings. No petition shall be acted upon which does not bear the signature of an attorney. The following are the only exceptions: 1. Proceedings to avoid litigation. 2. Actions of which municipal judges take cognizance in first instance. 3. Proceedings of voluntary jurisdiction. In the last case the aid of attorneys is discretional. 4. Instruments for the purpose of entering an appearance in an action, requesting judgment in default, judicial compulsion, extension of time, publication of evidence, fixing of hearings, their suspension, appointment of experts, and any other acts of mere practice. When the suspension of hearings, extension of time, or action requested is based on causes which relate specially to the attorney, the latter shall also, if possible, sign the instrument. ART. 11. Notwithstanding the provisions contained in articles 4 and 10, the solicitors as well as the attorneys may attend a proceeding to avoid litigation in the character of representatives or hombres buenos,2 4 or as assistants of the persons interested in oral actions, when the parties interested spontaneously desire to make use of their services. In such cases, if the costs be taxed in favor of the party who has made use of a solicitor or attorney, they shall not include the fees of either.' ART. 12. The attorneys may demand from the solicitor, and, if the 1The course of an action in which two persons have the same representative must not be interrupted on account of one of the parties revoking the power he has given the solicitor.-Decision of October 20, 1882. z In matters of conciliation, it applies to the two persons, one chosen by each party, to assist the constitutional alcalde in forming his judgment of reconciliation, Art. 1, chap. 3, Decree qf October 9, 1812. 'See article 424 of this law. 6

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LAW OF CIVIL PROCEDURE. latter should not have taken part in the action, from the person whose defense they conduct, the payment of the fees they may have earned in the action, presenting a detailed memorandum thereof and taking oath that they are unpaid. When this application is made in time, the judge or court shall admit it in the manner prescribed in article 8; but if the debtor should allege that the fees are excessive, they shall first be regulated, in accordance with the provisions of articles 426 et seq.' SECTION 11.-Legal aid to the poor. ART. 13. Justice shall be gratuitously administered to poor persons who have been declared as entitled to this benefit by a superior or inferior court.2 ART. 14. Persons declared poor shall enjoy the following privileges: 1. The right to use in their defense stamped paper of their class. 2. The right to have an attorney and a solicitor appointed, without being obliged to pay them any fees or charges. 3. Exemption from the payment of all kinds of charges to the assistants and subaltern officials of the superior and inferior courts. 4. To give promise under oath to pay if their fortune should improve, instead of making the deposits necessary in order to request and obtain relief. 5. The right to have all letters rogatory and other communications requested by them acted upon, and complied with de ofcio, should they demand it.' ART. 15. The following only can be declared poor: 1. Those who depend for a living upon an uncertain wage or salary. 'This action is barred after three years (according to article 1967 of the Civil Code); but the appointment of an attorney at a stated salary for any services which may be required is an industrial lease contract, the actions relating to which are not barred for twenty years, as all personal actions according to law 5, title 8, book 11, of the Novfsima Recopilaci6n.-Decision of December 91, 1885. The Civil Code fixes 15 years for the prescription of personal actions for which a special period of prescription is not fixed (art. 1964). 2 According to various administrative provisions and decisions of the supreme court, charitable institutions, as well as religious schools, must be considered poor persons (Royal Order of December 21, 1857). Parochial churches do not enjoy this privilege unless they prove that they are poor. With regard to foreigners there is some doubt as to this question; but the ordinary and reasonable interpretation is that they may enjoy this privilege, as they are granted the same civil rights as Spaniards; but in order to avoid doubts, some treaties make an express stipulation to this effect. s According to the Royal order of August 31, 1863, still in force on the subject, there shall be inserted free of charge in the proper Diarios Oficiales such judicial notices which are required by the nature of the proceeding. When the publication is to take place in the Boletin Oficial, the announcement shall be forwarded to the governor of the respective province. 7

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LAW OF CIVIL PROCEDURE. 2. Those who depend for a living upon a permanent salary or wage, from whatsover source derived, which does not exceed double that received by a laborer in the locality of the habitual residence of the applicant. 3. Those who depend for a living solely upon rents, farming, or stock raising the proportionate proceeds of which do not exceed the wages of two laborers in the place of their habitual residence. 4. Those who gain their livelihood solely through the exercise of an industry or from the product of any commerce on which they pay a tax lower than that fixed in the following scale: In the city of Havana, 150 pesetas. In the capitals of the other provinces of the island of Cuba, 100 pesetas. In the capital of the island of Porto Rico, 100 pesetas. In the seats of judicial. districts of the islands of Cuba and Porto Rico, 50 pesetas. In the other towns of both islands, 25 pesetas. 5. Those who have all their property under attachment, or who have made a judicial assignment thereof to their creditors, and who are not engaged in any industry, trade, or profession, and not included in the provisions of article 17. In such cases, if any property should remain after the creditors have been paid, it shall be applied to the payment of the costs incurred at the instance of the debtor represented as a poor person.1 1 (a) This article must be understood as subordinated to article 17, and therefore it is proper to refuse the benefit if the court shall deduce from the visible signs of wealth that the applicant has means which exceed double the wages of a laborer.Decisions of the Supreme Court of February 18, 1870; September 22, November 18 and 21, 1879; January 10, March 29, and June 24, 1880; February 11, 1881; December 15, 1883, and others. (b) An appeal for annullment of judgment does not lie from the decision granting permission to prosecute or defend as a poor person.-Decision of May 10, 1881. (c) A person who lives exclusively on a pension of 20 reales per day, left her by will for herself and her three children, must be granted this right.-Decision of October 25, 1880. (d) In order to decide whether the person requesting permission to prosecute or defend as a poor person who has acted in his own name is entitled thereto or not, there can not be taken into consideration the tax which he pays as the manager of an association.-Decision of September 9, 1882. (e) The refusal to grant the benefit can not be based on the fact that the person interested should pay an industrial tax of 40 pesetas per annum, although he does not do so, the courts being obliged to consider only whether the tax is or is not paid or without being allowed to declare that it should or should not be paid, which is a matter of the exclusive jurisdiction of the administration.-Decision of October 31,1884. (f) The habitual residence referred to in article 15 of the Law of Civil Procedure, for the purposes of the benefit of poverty, must be that which the person interested has at the time he requests said benefit, and not the place where he may have resided for a longer period in former times.-Decision of May 80, 1883. 8

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a Qs. ART. 16. When a person has two or more of the means of livelihood mentioned in the foregoing article, all of them shall be included in the computation of the income, and permission to prosecute or defend as a poor person shall not be granted him if the total thereof exceeds the amounts fixed in the foregoing article. ART. 17. Permission to prosecute or defend as a poor person shall not be granted to a person included in any of the cases mentioned in article 15, when it appears to the judge from the number of domestics in his service, the rent of his residence, or from any other visible signs, that his means exceed an amount equal to twice the wages of a laborer in his respective locality.1 ART. 18. Neither shall permission to prosecute or defend as a poor person be granted to a litigant who enjoys an income which, added to that of his spouse, or to that arising from the property of his children, the usufruct of which he enjoys, amounts altogether to a sum equivalent to the wages of three laborers at the place of the habitual residence of the family.2 (g) All litigants shall be considered wealthy until they prove the contrary.Decision of November 12, 1883. (h) It is incumbent upon the litigant to prove the amount of the wages of a laborer in his locality.-Decision of June 3, 1887. (i) The children born of a first marriage of a woman whose husband is wealthy are entitled to the benefit of poverty, because the conjugal property of the second marriage is not liable for the litigation instituted in the interest of the issue of the first marriage.-Decision of April 18, 1898. (j) The benefit of poverty is individual and does not extend, therefore, to any collectivity, such as industrial and commercial associations, unless each and every one of their members prove that they are poor.-Decisions of April 15, 1879; June 3, 1880, and July 9, 1881. (k) A person who is deprived of his property by virtue of a judicial attachment, and retains the product and rent thereof, can not allege that all his property is attached, as required by number 5 of article 15 of the Law of Civil Procedure, for the purpose of securing the benefits of articles 13 and 14 thereof.-Decision of October 14, 1886. The same is the case when the property is mortgaged or given as security.Decision of September 18, 1865. 'The words "when it appears to the judge" used in this article do not refer exclusively to the judge of first instance, but also to the superior or inferior court taking cognizance of the case.-Decision of September 23, 1882. 2(a) The privilege to prosecute or defend as a poor person shall not be granted to a woman who has a wealthy husband, because the duties inherent to the marriage affect the latter.-Decision of June 3, 1865. (b) Neither shall it be granted to the woman who receives an income which, together with that of her husband, is equivalent to the wages of two laborers (now of three) in the locality where they reside.-Decisions of June 17, 1865; September 18, 1865; January 26, 1869, and November 16, 1881. (c) In legal proceedings between spouses, the unity of person and litigant disappears, and, as a necessary consequence, the incomes of each can not be added together, nor can the external signs be considered in common for the purpose of obtaining a sum of money, nor signs of wealth which do not exist separately; but in such cases the poor woman having a wealthy husband has a right to require the husband to 9 LAW OF CIVIL PROCEDURE.

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LAW OF CIVIL PROCEDURE. ART. 1. When several persons individually entitled to defense as poor persons unite in an action, they shall be authorized to litigate as such, even though the united means of all of them exceed the amounts prescribed. ART. 20. Permission to prosecute or defend as a poor person shall be granted only for the purpose of protecting one's own rights. The assignee who has this right can not make use thereof to litigate the rights of the assignor, or those which he may have acquired from a third person not having said right, excepting when it was acquired by virtue of an inheritance. ART. 21. The declaration of poverty shall always be requested of the superior or inferior court taking cognizance, or which is competent to take cognizance of the action or business with regard to which said permission is desired, and it shall be considered as an issue incidental to the principal question. ART. 22. When the person requesting the declaration of poverty intends to institute an action, said action shall not be commenced until the issue of poverty has been finally decided. However, judges shall consent to the institution of proceedings without costs, which, if postponed, would cause irreparable injury to the plaintiff, but the course of the action must be suspended immediately thereafter. ART. 23. When the application to prosecute as a poor person is made by the plaintiff or to defend as a poor person by the defendant at or after the time of answering the complaint, the same shall be passed upon as a separate issue at the cost of the person making the application. In such case the continuation of the principal action may be suspended only with the consent of both parties. make her an allowance for the purpose of paying the costs of her action, and even though the litigation with her husband extinguishes the personal unity, it does not extinguish the right of the wife to enjoy the common income which the husband retains.-Decision of June 14, 1887. (d) When the father is wealthy, the son who is under his power can not be granted permission to litigate as a poor person with a third party, because, although the right to defend as a poor person is personal, this principle does not exclude the necessity of taking into consideration the attendant circumstances in special cases, as is the case with persons whose rights are inseparable from those of others, such as married women and persons under the patental power, and others.-Decision of February 16, 1876. A decision of September 21, 1888, repeats the doctrine that the benefit can not be granted to a wealthy father, in a legal sense, to appear in an action in the name of his poor children, because the duty to defend the property of the children in court is inherent to the parental authority. 'The issue of poverty raised and decided in a court does not determine the competency of the same to take cognizance of the main issue, the competency for the poverty being subordinated to the jurisdiction of the principal action.-Decision of March 5, 1868. 10

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LAW OF CIVIL PROCEDURE. ART. 24. If the plaintiff should not have requested permission to prosecute as a poor person before bringing his action, and requests it subsequently, it can not be granted unless he duly proves that he has become poor after having brought his action. ART. 25. The litigant who has not been represented as a poor person in the first instance, and desires to enjoy this privilege.in the second, must prove that subsequently to the former, or during the course thereof, he has reached a condition of poverty. Should he not duly prove this fact, his application shall not be granted.1 ART. 26. The rule laid down in the foregoing article is also applicable to a person who, not.having prosecuted or defended as a poor person in the second instance, makes the application to be so represented for the purposes of taking or prosecuting an appeal for annulment of judgment. In such case he shall be required to make the deposit, if he should not have made his application for legal aid to the poor, before the citation for judgment in the second instance. ART. 27. Any person making formal application for the declaration of poverty shall at once be defended as such, and an attorney and solicitor shall be assigned to him de ofcio if he should request it, without prejudice to what may subsequently be decided. An attorney and solicitor shall also be assigned de qfcio to the person who requests it for the purpose of filing a petition to secure permission to prosecute or defend as a poor person. ART. 28. This petition shall be drafted in the manner prescribed in article 523 for ordinary petitions, and shall state in addition1. The native town of the petitioner, his present domicile, and his residence during the previous five years. 2. His status (whether married or single), age, profession or trade, and means of livelihood. 3. If married or a widower, the name and native town of his spouse and the children he may have. 4. The house or room in which he resides, stating the street and number and the rent he pays. 5. The property of his spouse and of his children, the usufruct of which he enjoys and the income it produces. 1 (a) Permission to prosecute or defend as a poor person may be requested after the conclusion of the second instance, and the decision, which does not so recognize violates the provisions of said article.-Decision of December 9, 1882. (b) The mortgage of all the property belonging to a person for the guaranty of a loan-that is, the contraction of a mortgage loan-is not sufficient to warrant the granting of this benefit, because said action may be explained by reasons of different kinds and does not prove that the person who appeared as a wealthy person in the first instance has become poor subsequently thereto, and for the reason that th.e mortgage, even though under the hypothesis that it affects all the property, can not be confounded with the total attachment of said property, depriving the person of the income therefrom.-Decision of March 12, 1887. 11

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LAW OF CIVIL PROCEDURE. 6. And he shall attach a certificate issued by the competent authority or official that he has not paid a tax of any kind whatsoever during the current fiscal year and the preceding one, or of the amount he does pay, attaching in the latter case the receipts for the last quarter he may have paid, and another certificate, in a proper case, showing whether he does or does not appear in the electoral lists, and if so, in what character. ART. 29. Petitions which do not contain the requisites mentioned in the foregoing article shall not be admitted. If the petitioner shall allege that he could not procure the certificates mentioned in number 6 of said article, the judge shall call for them de oficio, but the petition shall not be taken into consideration until they are attached to the record. ART. 30. The petitions for permission to prosecute or defend as a poor person shall be heard and decided according to the procedure 1 established for other incidental issues, with a hearing of the opposite party or parties and of the representative of the department of public prosecution on behalf of the State. If this petition be filed before the action is brought, those who are to make answer thereto shall be summoned to appear for the purpose within nine days. If the opposite party should not appear it shall be heard with the attendance of the representative of the department of public prosecution. 4 ART. 31. If the petition for permission to prosecute or defend as a poor person should be denied, the costs of the first instance shall be taxed against the petitioner. In ease of an appeal, those of the second instance shall be taxed against the proper person in accordance with law. ART. 32. As soon as the judgment is final, the taxation of the costs shall be made, including that of the stamped paper, and they shall be collected by means of judicial compulsion. An. 33. The decision granting or refusing permission to prosecute or defend as a poor person does not produce the effects of a res judicata. At any stage of the action the party in interest may raise a new issue for the revision or annulment thereof, provided that he secures to the satisfaction of the judge the costs which might be taxed against him if said action be not successful. The department of public prosecution shall not be required to make this deposit if it raises said issue. ART. 34. In the case of the foregoing article permission to prosecute or defend as a poor person shall not be granted to a person to whom it has once been denied, unless he shall fully prove that he has become poor subsequent to the decision which previously refused to grant him said privilege. 12

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LAW OF CIVIL PROCEDURE. His new petition shall not be accepted unless it is based on said reasons. ART. 35. The declaration of poverty made during one action can not be made use of in another, if the opposite party should object. If said party should object, the hearing of the issue must be renewed, a new decision with regard to the poverty being rendered in which the objecting party shall be cited and heard. ART. 36. A declaration of poverty made in favor of any litigant shall not release him from the obligation of paying the costs taxed against him, if property should be found upon which to levy therefor. ART. 37. If the person granted permission to prosecute as a poor person should be successful in the action which he may have brought, he shall be obliged to pay the costs incurred in protecting his interests, provided that they do not exceed one-third of the amount he may have obtained by virtue of the suit or complaint. If the costs should exceed said one-third, they shall be reduced proportionately. ART. 38. Should there not be sufficient property to cover the charges of the treasury and the fees of the attorneys, solicitors, and other persons interested in the costs, the proceeds shall be proportionately divided among them. ART. 39. The person granted permission to prosecute or defend as a poor person shall also be obliged to pay the costs mentioned in article 37 if within three years after the conclusion of the action his fortune should improve.' His fortune shall be considered to have improved1. If he has obtained a permanent salary, wages, income, or property, or become engaged in farming or stock raising, the profits of which exceed an amount equal to the wages of four laborers in the locality. 2. If he pays a tax amounting to twice the sum mentioned in number 4 of article 15.2 ART. 40. A person who has been granted permission to prosecute or defend as a poor person may make use of the services of a solicitor and attorney selected by himself, if they accept the charge. Should they not do so they shall be appointed by the court (de oftio), but subject to the provisions contained in the following articles. ART. 41. The person who has obtained permission to prosecute an action or file a complaint as a poor person must present to the court, on common paper or on stamped paper of poor persons, a detailed 'After three years have elapsed the obligation to pay attorneys, court clerks, etc., their charges and fees, is prescribed.-Civil Code, art. .1967, par. 1. 2 As an action demanding payment can not be brought before there exists the obligation to pay, and as poor persons are not obliged to pay the fees until their fortune betters, it is evident that the period of three years for its limitation must be counted from the latter date.-Decision of October 15, 1885. 13

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LAW OF CIVIL PROCEDURE. statement of the facts on which he bases his right, and the documents or a description of the manner in which he intends to prove the same. ART. 42. As soon as the person who has obtained permission to prosecute and defend as a poor person has fulfilled the provisions contained in the foregoing' article, he shall be assigned a solicitor and an attorney de ojficio to act on his behalf and in his defense, and the record shall be delivered to the solicitor, who shall hand it to the attorney for examination. ART. 43. If the attorney should consider that the facts contained in the statement are insufficient, he may request, within ten days, that the person interested be required to amplify or elucidate the points which he may designate. ART. 44. When, with or without such amplification, the attorney should consider that the poor person has not a good cause of action, he may withdraw from the defense, informing the court thereof within ten days in a succinct document, with the reasons for his action. AR. 45. In such case the court shall forward the record to the College of Attorneys (bar association) in order that two practicing attorneys of those who pay the three highest tax quotas may give their report as to whether or not the person who has been granted permission to prosecute as a poor person has a good cause of action. Should there be no college, the judge shall designate two of the oldest attorneys of the same court to render said report, and if there should be no qualified attorneys he shall forward the papers in the case to the nearest College of Attorneys through the proper judge. ART. 46. If the report of said two attorneys should agree with that of the attorney appointed cle oftcio, the person interested shall not be granted permission to prosecute or defend as a poor person in said matter, without prejudice to his right to bring the action as a wealthy person. AnT. 47. When the two attorneys, or one of them, should consider that there is a good cause of action, or that, at least, the right of the person declared poor is doubtful, another attorney shall be assigned him de ofocio, who will be obliged to undertake the defense. ART. 48. If the defendant should be granted permission to appear as a poor person, and if the attorney who is to undertake the defense should withdraw therefrom on account of his belief that said defendant has not a good cause of action, he shall inform the court within six days, which shall order the appointment of another attorney. If the latter should also excuse himself for the same reason, the matter shall be placed in the hands of the jpromotor jiscai (if he should not be a party), for his statement as to whether the poor person has or has not a good cause of action. If the department of public prosecution were a party this report shall be made by an attorney not of poor persons selected by the col14

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LAW OF CIVIL PROCEDURE. lege, where there is any, and in the absence of such college, by the judge. If the promotor facal, or the third attorney in a proper case, should consider that the poor person has not a good cause of action, the obligation of the attorney to conduct the defense gratuitously shall cease; but if he considers that the claim is good, a third attorney shall be appointed de oficio, who can not excuse himself from conducting the defense. The same shall be done when the plaintiff applies by petition and receives permission to prosecute as a poor person after the complaint has been answered, or in the case of any of the parties during the course of the second instance. ART. 49. Attorneys who should not make the statements referred to in articles 43, 44, and 48 within the period fixed, shall be considered as having accepted the defense and can not excuse themselves except for the reason of having ceased to practice their profession. ART. 50. The attorney who has undertaken to conduct the defense of a party as a wealthy person, afterwards declared poor, shall be obliged to continue the defense in the latter character when there are no attorneys for poor persons in the court, qualified to conduct it. TITLE II. COMPETENCY AND QUESTIONS OF JURISDICTION. SECTION I.-General provisions. ART. 51. The ordinary judicial courts shall be the only ones competent to take cognizance of civil disputes occurring within the territory of the islands of Cuba and Porto Rico between Spaniards, between foreigners, and between Spaniards and foreigners. ART. 52. The only exceptions from the provisions contained in the foregoing article are the preliminary steps in intestate and testamentary proceedings with regard to estates of soldiers dying in the field, and of sailors belonging to the navy dying at sea, whose cognizance pertains to the commanders and authorities of the army and navy. These preliminary steps shall be confined to the burial of and obsequies over the remains of the deceased, the making of the inventory, and custody of his property, books, and papers, and their delivery to the legatees or devisees, or to the heirs of the intestate within the third civil degree, provided they are of age and there be no objections made. Otherwise, and when the heirs have not appeared, or when it should ,r be necessary to continue the proceedings, the papers shall be delivered to a court competent to take cognizance of the testamentary or intestate proceedings, the property, books, and papers inventoried being placed at the disposal of the court. 15

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16 LAW OF CIVIL PROCEDURE. AR. 53. In order that judges and courts may be considered as having jurisdiction it is necessary: 1. That the right to take cognizance of the action, or of the proceedings in which they take part, be vested by law in the authority they exercise. 2. That the right to take cognizance of the action or proceeding be vested in them in preference to other judges or courts of the same class. ART. 54. Civil jurisdiction may be vested in any judge or court which, by reason of the matter, of the amount in litigation and of his or its rank in the judicial service, may be competent to take cognizance of the matter submitted to the same. ART. 55. The judges and courts who are competent to take cognizance of an action shall also have jurisdiction over the exceptions taken therein, over counterclaims in proper cases, over all incidental issues, and to enforce their rulings and decisions.' SECTION 11.-Rules to determine competency. ART. 56. Any judge impliedly or expressly agreed upon by the litigants shall be competent to take cognizance of the suits arising from actions of all kinds. This submission, however, can only be made to a judge exercising ordinary jurisdiction and who is competent to take cognizance of questions similar to and of the same kind as the one submitted.2 ART. 57. By an express submission shall be understood that made by the parties in interest clearly and in definite terms renouncing their own rights, and unequivocally designating the judge agreed upon to determine the question. I (a) The cognizance of a claim of litis expensas in consequence of an ordinary action instituted by the wife to compel the husband to turn over to her the administration of the property in addition to the dowry or parapherna, pertains to the judge by whom the ordinary action should be heard.-Decision of September 27, 1890. (b) In an action brought requesting the increase of alimony, the judge who originally fixed the alimony is competent, because it is an issue in the first proceeding.Decision of October 21, 1887. 2(a) The judge or court impliedly or expressly agreed upon by the litigants shall be competent to take cognizance of the suits arising from the exercise of civil actions, provided that he has jurisdiction, etc.-Decisions of April 2, 1877, April 18, 1891, February 5, 1892, and others. (b) The judge agreed upon by the litigants shall be competent to take cognizance of suits arising from the exercise of all kinds of actions.-Decisions of April 20, 1887, February 5, 1892, and others. (c) The heirs of a person submitting to a court can not refuse to appear before the same.-Decision of October 23, 1882. 3 If the submission is made by means of a public instrument, until said instrument is invalidated by a final judgment, it shall be of sufficient force to attribute competency in the court designated therein.-Decisions of February 20, June 26, September 27, and October 25, 1880.

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LAW OF CIVIL PROCEDURE. ART. 58. An implied submission is made: 1. By the plaintiff, by the act of filing his complaint before the judge. 2. By -the defendant when, after his appearance is entered in the action, he takes any further steps therein, except to formally object to the jurisdiction of the judge by declinature.' ART. 59. In towns where there are two or more judges of first instance, the distribution of the business shall determine the competency thereof, and the litigants can not for themselves select one of said judges to the exclusion of the others. ART. 60. The express or implied submission to a court for the first instance shall be understood as having been made for the second instance to the hierarchical superior of the same, which is to take cognizance of the appeal. ART. 61. In no cases can the parties submit any matter on appeal to a judge or court other than one to which the court which took cognizance of the case in first instance is subordinated. ART. 62. With the exception of the cases of express and implied submission referred to in the foregoing articles, the following rules shall apply: 1. In personal actions, the competent judge shall be that of the place where the obligation is to be performed, and in his absence that of the domicile of the defendant or of the place of the contract, at the election of the plaintiff, if said defendant be found there, even accidentally, and process can be served upon him. When the action is simultaneously brought against two or more persons residing in different towns who are severally or jointly liable, no place for the performance of the obligation having been agreed 'Declinature is the term applied to the privilege which a party has, in certain circumstances, to decline judicially the jurisdiction of the judge before whom he is cited.-Bell's Di. and Digest of the Law qf Scotland, 7th ed. When the defendant has not entered his appearance in the action nor taken any part therein whatsoever it can not be said that he has impliedly submitted thereto.Decision of Decem ber 2O, 1886. When the defendant, in answering the complaint, takes the exception of incompetency there is no implied submission.-Decision of April 17, 1886. It is not sufficient to allege incompetency, but the defendant must make an issue of the incompetency in order not to be subjected thereto, as any other action subjects him to the jurisdiction of the court before which the action was brought.Decision qf May 23, 1878. A. defendant who does not object to the competency of a judge to whom the plaintiff applies for a declaration of poverty, acknowledges that he is competent to take cognizance of the principal action, in accordance with article 187 of the former law of civil procedure which accords with article 21 of the present procedure.-Decision of October 14, 1881. A creditor who, before instituting an action, applies to the court requesting that his adversary confess the debt, is subject to the jurisdiction of said court and can not enter suit for payment in another court.--Decision of April 14, 1884. 5190 2 17

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LAW OF CIVIL PROCEDURE. upon, the judge of the domicile of any of the defendants shall be of competent jurisdiction, at the election of the plaintiff. 2. In real actions involving personal property or chattels, the judge of the place where it is located shall be of competent jurisdiction, or the judge of the domicile of the defendant, at the election of the plaintiff. 3. In real actions involving real estate the judge of the place where the thing in litigation is situated shall be of competent jurisdiction. When a real action involves several real properties, or one only situated in different judicial districts, jurisdiction is vested in the judge of any of the places within the jurisdiction of which the property is situated, at the election of the plaintiff. 4. In mixed actions the competent judge shall be the one of the place where the things are situated, or that of the domicile of the defendant, at the election of the plaintiff.' ART. 63. In order to determine competency, in cases other than those mentioned in the foregoing articles, the following rules shall apply: 1. In actions involving the civil status of a person the judge of the domicile of the defendant shall be competent. 2. In actions involving the rendition and settlement of accounts of administrators of property of another, the judge of competent jurisdiction shall be the one of the place where the accounts are to be rendered, and if said place should not be determined, that of the domicile of the principal or owner of the property, or that of the. place where the duties of the administrator are performed, at the election of said owner. 3. In actions upon guaranties or upon the performance of obligations prior thereto, jurisdiction is vested in the judge competent to take cognizance, or who is already taking cognizance, of the principal obligation involved.2 4. In counterclaims or cross complaints (reconvencidn) the competent judge is the one taking cognizance of the main action. In the absence of submission the judge of the place where the obligation is to be performed shall be competent to take cognizance of personal actions, and said place, when not specified, shall be that where what has been stipulated has begun to be fulfilled.-Decision of April 16, 1888. The judge of the place where the obligation is to be performed must always be preferred to that of the domicile of the defendant.-Decision of January 8, 1885. If no stipulation has been made to the contrary, the amount of the contract obligation must be paid in the place where the contract was executed.-Decision of February 12, 1883, and June 11, 1889. When a person dies and another pays the funeral expenses the debt must be paid in the place of the demise, and the judge thereof is competent.-Decision of May 6, 1885. The judge competent to take cognizance of actions brought to recover fees shall be the one of the place where the services were rendered for which the fees are charged:-Decision of February ?7, 1885. 2When the exercise of a real action is in question, the judge competent to take cognizance thereof shall be that of any of the places where the charged property is situated, at the election of the plaintiff.-Decision of January 4, 1889. 18

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LAW OF CIVIL PROCEDURE. 19 This rule is not applicable when the import of the counterclaim exceeds the amount involved in actions over which the judge taking cognizance of the first claim has jurisdiction, in which case the counterclaimant or cross complainant shall reserve the right to bring the action in the proper court. 5. In testamentary or intestate proceedings the judge of the last place of residence of the deceased shall be competent. If the last place of residence should be a foreign country, then jurisdiction is vested in the judge of the last place of residence of the deceased within Spanish territory, or where the greater portion of his property is located. The foregoing shall not impair the power of the judges of first instance or municipal judges of the place of demise, to take the measures necessary for the obsequies over the remains and the burial of the deceased; and, in a proper case, that of the judge within whose jurisdiction property of the deceased may be situated, to take the measures necessary to care -for and safely keep the same, as well as his books and papers, forwarding an account of his action to the judge of competent jurisdiction in the testamentary or intestate proceedings and abandoning his jurisdiction in the matter.1 6. The foregoing rule shall also apply to testamentary proceedings the object of which is the distribution of the property among the poor, A relatives, or other persons designated by the testator, without indicating their names. When the purpose of the proceedings is the adjudication of religious bequests or other ancient institutions, the competent judge shall be that of any of the places within whose jurisdiction the property may be situate, at the election of the plaintiff. 7. In proceedings relating to inheritances, their distribution, the disposition of legacies, universal and singular fideicommissa,2 or trusts 'The cognizance of testamentary and intestate proceedings is vested in the judge of the last residence of the deceased.-Decision of February 4, 1889. When a person dies in a foreign country and there is no information tending to show that he is a resident thereof, and less that he took up his residence in the same with the intention of losing or abandoning his domicile in Spain, it must be presumed that his absence was temporary and that his domicile continued to be the place where his family was established, for the purposes of this article.-Decision of August 2, 1866. When the last residence of the deceased is known, the judge of the same is competent to take cognizance of the testamentary proceedings, his having a business place in another district and that he paid a consumption tax in the latter and resided there temporarily being no obstacle thereto.-Decision of December 8, 1881. 2 In the Roman law, a universal fideicommiss consisted in the appointment of an heir with directions rerbis precativis that he should restore the inheritance to a third person mentioned, the heir being called fiduciaries, and the third person fideicommissarius. The singular fideicommiss was simply a trust legacy, differing from the common legacy in nothing but the form and the words employed.-Bell's Dictionary and Digest of the Law of Scotland.

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LAW OF CIVIL PROCEDURE. claims of testamentary and hereditary creditors, during the pendency of thetestamentary or intestate proceedings, j arisdiction is vested in the judge competent to take cognizance of the last-named proceedings. 8. In voluntary bankruptcy proceedings of merchants and of nonmerchants, the judge of competent jurisdiction shall be the one of the domicile of the bankrupt. 9. In bankruptcy proceedings instituted by creditors, that of any of the places where the judicial writs of execution are being enforced. Among the aforesaid courts shall be preferred that of the domicile of the debtor if he and a majority of the creditors request it. Otherwise the court which decreed the adjudication of insolvency shall be preferred. 10. In proceedings relating to the challenge of arbitrators and friendly compromisers when they do not agree to the challenges, the judge of the place where the party challenged resides shall be competent. 11. In appeals taken against arbitrators, in the cases where they lie according to law, the audiencia of the district within which the town is situated in which the action has been heard, shall be of competent jurisdiction. 12. In cautionary attachment proceedings the judge of the judicial district in which the property to be attached is situated shall be competent, and for precautionary purposes in cases of urgency the municipal judge of the town in which they are situate.2 13. In actions of unlawful detainer or of redemption, the competent judge shall be the one of the place where the thing in litigation is situate, or the one of the domicile of the defendant, at the election of the plaintiff. 14. In summary proceedings to acquire possession of property 8 the 1 When the claims deduced relate to obligations inherent to an intestate, involving the expenses incurred during the last illness, burial, and funeral, the court taking cognizance of the intestate proceedings shall also be competent to pass on and determine said claims.-Decision of December 22, 1886. 2 With the exception of the cases referred to in article 1409 of the Law of Civil Procedure, when the cautionary attachment is requested after the institution of the principal action, or as an issue of the same, and of cases of implied or express submission of the parties, to which are applicable articles 55 and 56, respectively, the competency to take cognizance of said attachments must be determined by rule 12 of article 63, of the said law. Consequently, if a cautionary attachment is requested before the institution of the principal action, and the submission has not been alleged, the judge of the district in which the property is situated shall be competent to take cognizance of the proceedings, no matter what judge may be competent to take cognizance of the action which may subsequently be instituted.-Deciion of March 15, 1887. 3interdicto de adquirir. These proceedings lie when no one possesses the property, whose possession is desired, as an owner or usufructuary, because the person possessing the same can not be deprived of his possession without having his right heard and determined in court; and it is furthermore necessary that a copy of the will giving him a right thereto be presented, or of the designation of heirship by virtue of which he claims the same.-Alubilla, Diccionario de la Administracidn espatoles,. 20

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LAW OF CIVIL PROCEDURE. competent judge shall be the one of the place where the property is situate, or where the testamentary or intestate proceedings are instituted, or that of the last domicile of the deceased. 15. In summary proceedings to retain or recover possession of property.' to prevent the construction of a new work, or to secure the demolition or strengthening of a work, building, or tree about to collapse or fall, and in proceedings to settle boundaries, the judge of competent jurisdiction shall be the one of the place in which the thing which is the object of the summary proceedings or settlement of boundaries is situated. 16. In proceedings for adoption or arrogation the judge of competent jurisdiction shall be the one of the domicile of the adopter or arrogator.2 17. In the selection and appointment of guardians of persons and property, and excuses from accepting them, jurisdiction is vested in the judge of the domicile of the father or mother whose death gives rise to the appointment, aid, in their default, that of the minor or incapacitated person, or that of any of the places where they may have real estate.' 18. In the appointment and selection of guardians ad litens, jurisdiction is vested in the judge of the place where the minors or incapacitated persons have their domicile or that of the place where the action is to be instituted. 19. In actions based upon the conduct of the guardianship of person or property, in the resignations therefrom after having begun to perform the duties thereof, and in actions to remove suspicious guardians, the judge of competent jurisdiction shall be that of the place where the principal part of the guardianship has been administered, or that of the domicile of the minor. 20. In proceedings for the custody of persons, jurisdiction shall be vested in the judge taking cognizance of the main action or cause which gave rise to said proceedings. When there is no prior action pending, the competent judge shall be the one of the domicile of the person sought to be placed in custody. 1hiterdictos de retener y recobrar were different according to the law of 1855; but the present law has abolished the difference of procedure between the same. It lies when the person in possession of the thing has been disturbed therein by acts which show the intention of disturbing him or depriving him of possession, or when he has already been deprived thereof.-Alcubilla, Diccionario de la Adninistraci6n espamola. 'The Civil Code has abolished the difference between adoption and arrogation observed in the Roman law and which was retained in the Spanish laws, as may be seen in Law 7, Title VII, Partida Fourth, and in article 1830 of this law. 'The Civil Code, besides having abolished the difference between guardianship of person and guardianship of property (tutela y curaduria), has made the provisions of rules 17 to 19 inapplicable by reason of having assigned the appointment and selection, as well as the removal and excuses of the same, to the family council. (Articles 239, 240, and 249.) 21

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LAW OF CIVIL PROCEDURE. When special circumstances so require, the municipal judge of the place where the person sought to be placed in custody is found, may order such custody temporarily, and shall forward a statement of his action to the competent judge of first instance, subjecting the person in custody to the orders of said court.' 21. In proceedings for maintenance, when collaterally requested in an action, or in proceedings for the custody of a person, the judge of competent jurisdiction shall be that of the place of residence of the person of whom said maintenance is requested.2 22. In proceedings for the reduction to public instruments of wills, codicils or bequests made verbally, or documents executed without the intervention of a notary public, and in proceedings instituted for the opening of sealed wills or codicils, the judge of competent jurisdiction shall be that of the place where said documents may have been executed. 23. In authorizations for the sale of property of minors or incapacitated persons, the competent judge shall be that of the place where the property may be situated, or that of the domicile of the persons to whom it belongs.8 24. In proceedings for the administration of the property of an absentee, whose whereabouts is unknown, jurisdiction is vested in the judge of the last place of residence of said absentee within Spanish territory. 4 25. In proceedings to dispense with the law, and in proceedings for authority to appear in an action, when required by law, the judge of competent jurisdiction shall be the one of the domicile of the person requesting it. 26. In proceedings to perpetuate testimony the judge of competent jurisdiction shall be that of the place where the facts occurred, or the one where the witnesses who are to testify may be, even accidentally. If the person has been placed in charge of his mother, the judge of the domicile of the latter shall be competent to determine the custody and support of the minor.-Decision of July 2, 1878. 2 (a) Not this rule, but the first one of article 62 is applicable, to a suit for the reduction or release from the payment of maintenance, paid by virtue of a judgment.-Decision of February 28, 1878. (b) This rule does not make any distinction between a voluntary and contentious proceeding, nor between temporary and definite support.-Decision of October 29, 1879. 3This rule is modified by article 164 of the Civil Code, according to which the authorization to the father, or to the mother, in a proper case, to alienate or encumber the property of the child for proper causes of profit or necessity, and whose usufruct or management they enjoy, must be granted by the judge of the domicile. The authorization to the guardian to alienate or encumber property which constitutes the capital of the minors or incapacitated persons, etc., must at the present time be granted by the family council. (Civil Code, articles 269, 270, and 271.) 22

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LAW OF CIVIL PROCEDURE. 2 When these proceedings relate to the actual condition of real estate, the judge of competent jurisdiction shall be the one of the place where it may be situate. 27. In proceedings for surveying, for partition of foros,' and for possession of property, by an act of voluntary jurisdiction, the competent judge shall be that of the place where the greater. portion of the estate is situated. ART. 64. The domicile of married women not legally separated from their husbands is that of their husbands.2 That of the children under the parental authority is the residence of their parents. That of minors or incapacitated persons subject to guardianship is the residence of their guardians.' ART. 65. The legal domicile of merchants, in all that relates to commercial acts and contracts and the consequences thereof, shall be the town where their principal place of business is located. Persons who have commercial establishments situated in different judicial districts may be made defendants in personal actions in the place where their principal establishment is located or where the obligation was incurred, at the election of the plaintiff. ART. 66. The domicile of civil and commercial corporations shall be the town designated as such in the articles of incorporation or in their by-laws.4 Should this circumstance not be apparent the provisions applicable to merchants shall be observed. Joint-stock companies are excepted from the provisions contained in the foregoing articles in all that relates to litigation between the members, with regard to whom the general provisions of this law shall be observed. ART. 67. The legal domicile of employees shall be the town where they discharge the duties of their employment. When the character of their employment is such as to require them to be traveling continuously from place to place, their domicile shall be considered the place where they most frequently reside. .ART. 68. The legal domicile of soldiers in active service shall be that of the town in which the corps to which they belong may be at the time when service of summons is made. 1 Emphytentic rents.-Schn., C. L., 809. 'The application of this rule is not affected by the fact that the wife resides in a town different from that of the residence of the husband, nor that she is registered in said town.-Decision of October 30, 1878. s See notes to rules 17 and 19 of article 63. The fact of the establishment of a. branch in a place not the domicile of the company, according to the articles of incorporation, does not affect said domicile.-DeciSion of Jme 4, 1883. 23

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24 LAW OF CiVIL PROCEDURE. ART. 69. In cases in which the designation of the domicile is necessary in order to determine jurisdiction, if the defendant has no domieile in the islands of Cuba or Porto Rico, jurisdiction is vested in the judge where said defendant resides. Those who have no fixed domicile or residence may be sued in the place where they may be, or in their last place of residence, at the election of the plaintiff. ART. 70. The foregoing jurisdictional provisions shall be applicable to foreigners who may seek the aid of the Spanish courts in acts of voluntary jurisdiction, or who appear in an action as plaintiffs or defendants against Spaniards or against other foreigners, when the Spanish jurisdiction is authorized according to the laws of the Kingdom or by treaties with other powers. ART. 71. The rules established in the foregoing articles shall be understood without prejudice to the provisions of law in special cases. SECTION III.Questions of competency. ART. 72. Questions of competency may be raised by inhibition or declinature. The inhibition shall be presented to the judge or court considered competent, requesting that a writ be issued forbidding the court not considered as having jurisdiction to proceed in the cause and ordering it to transmit the record. The declinature shall be submitted to the judge or court considered incompetent, requesting that he or it cease to act in the matter and to transmit the record to the judge or court considered competent.' ART. 73. The inhibition and the declinature may be interposed by the parties cited to appear before the incompetent judge, or by those who may be the legitimate parties in the action brought." 'It is not sufficient to allege incompetency, but it is necessary to formally raise the question, and if this is not done the benefit of number 6 of article 1693 of the law in force can not be taken advantage of in order to base thereon an appeal for annullment of judgment.-Decision of October l6, 1861. When the differences between two judges do not involve any question of jurisdiction, but only the interpretation of a legal text, it is not a question of competency, and the parties may make use of their right before whom they wish and in the proper manner.-Decision of Aorember 14, 1884. In order that there may be a question of competency it is necessary that two judges allege that they desire to take cognizance of the same matter, believing themselves competent to do so; and this is not the cae when each of the judges agrees that the cognizance of the case brought before him pertains to his colleague and they dispute only the validity of the attachment decreed by one of them with full powers in the suit which he is hearing.-Decision of Jly 1:, 1887. "In civil matters questions of competency may be raised only by persons who appear as litigants, either having brought the actions or being defendants therein.Decision of August 80, 1866.

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LAW OF CIVIL PROCEDURE. ART. 74. In no case shall questions of competency in civil matters be raised by the court on its own motion; but the judge who considers himself incompetent in the matter may abstain from taking cognizance thereof, after consulting with the department of public prosecution, admonishing the parties to submit their questions to the proper court. This ruling of the court may be appealed from for review and for a stay of proceedings. AR. 75. The litigant who has submitted himself expressly or impliedly to the court or judge before whom the matter is brought, can not interpose an inhibition or a declinature. ART. 76. Neither can questions of competency be raised in judicial matters which have been closed by a final ruling or judgment. ART. 77. He who interposes one of the pleas mentioned in article 72 can not abandon it and seek the other plea, nor take advantage of both simultaneously or successively, but must submit to the determination of the plea he may have preferred. ART. 78. He who raises a question of competency by either of the pleas above mentioned, shall state in his plea that he has not interposed the other one. If the contrary shall appear, he shall be taxed the costs of the issue, even though the question of competency be decided in -his favor.2 AR. 79. The practice prescribed for dilatory exceptions shall be followed in declinatures as prescribed in article 536. The practice prescribed in the following articles shall be applicable to inhibitions. ART. 80. The following may hear and determine questions of competency raised by the parties: 1. Municipal courts. 2. Courts of first instance. 3. Audiencias. ART. 81. No judge or court can raise the question of the competency of his next hierarchical superior, but he may state, at the instance of the party and after hearing the department of public prosecution, 'Although, according to this article, questions of competency can not be raised in judicial matters which have been closed by a final ruling or judgment, when the municipal judge who rendered the same received the writ of inhibition after doing so, and the defendant had requested it on the same day on which he was cited to appear, this article is not applicable, because the delay in the matter on account of said writ can not prejudice him.-Decision of January 10, 1883. After a cautionary attachment has been ratified without the debtor having made use of his right, no question of competency can be raised with regard to the attachment, it being a closed judicial matter.-Decision of March 3, 1885. 2When a declinature has been unsuccessfully interposed in an issue of poverty, an inhibition can not afterwards be interposed in the main action, and the person doing so must be taxed the costs in accordance with the provisions of this article.Decision of December 31, 1891. 25

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26 LATV OF CIVIL PROCEDURE. his reasons for believing that the cognizance of the matter pertains to him. The superior court or judge shall deliver the statement and data to the representative of the department of public prosecution, for a report thereon, and without further proceedings shall decide within three days what he or it may consider proper, communicating the decision to the lower court for its guidance. AnT. 82. When any judge or court is taking cognizance of a matter, jurisdiction over which belongs to his or its immediate hierarchical superior or to the supreme court, the latter shall confine themselves to order the former, also at the instance of a party, and after hearing the department of public prosecution, to abstain from proceeding in the matter and to forward the record to the same. ART. 83. In the cases of the two foregoing articles, the judges and courts shall always comply with the order of their next hierarchical superior, without further remedy, when the latter is the supreme court. From the decisions of the audiencias, but without prejudice to their fulfillment, the parties who may consider themselves injured and the department of public prosecution, may appeal within eight days to the third chamber of the supreme court. This chamber shall call for a detailed report, or for the record of the proceedings, from the audiencia which may have rendered the decision, and after hearing the department of public prosecution shall decide what it may consider proper. A similar appeal may be taken to the civil chamber of the proper audiencia by the parties who consider themselves injured by the resolutions of judges of first instance in their relations with municipal judges. ART. 84. Pleas for inhibition shall always be interposed in writing, subscribed by an attorney. The only exceptions from this rule are those relating to oral actions, when the interest involved therein does not exceed 1,000 pesetas, which exceptions may be interposed and heard verbally before the municipal judge, or in writing, without the necessity of the subscription of an attorney; but the municipal fseal must be heard in writing.' ART. 85. The judge or court before whom an inhibition is interposed shall hear the representative of the department of public prosecution, unless the latter should have advanced said plea himself, as a party to the action. The department of public prosecution shall conclude the hearing within three days. AnT. 86. After the department of public prosecution has been heard, the court shall decree the issue of a writ of inhibition, or shall declare that the plea was not well taken. 'The absence of -the signature of an attorney to an inhibitory plea constitutes a breach of form which prevents the decision of .the competency.-Decision of July 5, 1880.

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LAW OF CIVIL PROCEDURE. 27 Air. 87. The decree of a municipal judge or judge of first instance declaring that the inhibitory plea was not well taken, may be appealed from for review and for a stay of proceedings. Only an appeal for annulment of judgment by reason of breach of form lies, in a proper case, from similar decisions of audiencias, whether rendered on appeal or in first instance. ART. 88. To the writ of inhibition there shall be attached a certified copy of the instrument in which it was requested, of the statements of the representative of the department of public prosecution, of the decision rendered thereon, and anything else which the judge or court may deem necessary to sustain his or its jurisdiction. ART. 89. As soon as the judge or court inhibited receives the writ of inhibition, he or it shall suspend the proceedings and shall hear the party or parties who may have appeared in the action, and if said parties should not agree to the inhibition, said judge or court shall also hear the representative of the department of public prosecution. ART. 90. The hearing of the parties referred to in the foregoing article shall only be had during three days, after which, if the record be not returned, it shall be officially recovered by or without a writ, and after the representative of the department of public prosecution has been heard, in a proper case, the judge or court shall decide whether or not he shall be inhibited from proceeding in the matter. ART. 91. The appeals mentioned in article 87 lie against the rulings of courts or judges inhibiting themselves from taking cognizance of a question. ART. 92. After the ruling by which a court or judge shall have inhibited himself or itself from taking cognizance of a matter has been agreed to or made final, the proceedings shall be forwarded to the judge or court which interposed the inhibition, with a citation of the parties to appear before him or it within fifteen days and assert their rights. ART. 93. If the inhibition should be refused, the decision shall be communicated to the judge or court which interposed it, with certified copies of the instruments filed by the parties in interest and by the representative of the department of public prosecution, in a proper case, and anything else which may be considered advisable. ART 94. In the communication which the judge or court sought to be inhibited, addresses in the case of the foregoing article, he shall demand an answer in order to continue the proceedings, if allowed to do so, or to forward the record of the same to the proper court for the decision of competency. ART. 95. After the communication referred to in the foregoing article has been received, the judge or court which interposed the 1 The decision must declare whether the inhibition is proper or not, and the judge inhibited can not declare that the competent court is a third one which has not taken part in the question.-Decision of December 28, 1877.

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LAW OF CIVIL PROCEDURE. inhibition shall, within three days, make an order without further proceedings insisting on or abandoning the inhibition. ART. 96. The appeals mentioned in article 87 lie against a decision desisting from an inhibition. ART. 97. After the decision by which the judge or court interposing the inhibition desists therefrom has been consented to or becomes final, it shall be communicated in writing to the one sought to be inhibited, together with the proceedings taken, in order that it may be attached to the record thereof and the proceedings continued. ART. 98. If the judge or court issuing the writ of inhibition should insist on the inhibition, he or it shall communicate the same to the judge sought to be inhibited, and both shall forward by first mail their original proceedings to the superior court which is to determine the competency. ART. 99. Questions of competency shall be decided1. Those arising between municipal judges of their respective judicial districts, by the judges of first instance. 2. Those arising between judges of first instance and municipal judges who exercise their jurisdiction within the respective territory, with the exception of those comprised in the foregoing number, by the civil chambers of the audiencias. 3. Those arising between judges of first instance or other judges or special courts existing in the respective territory, whether among themselves or with another of a different jurisdiction, by the civil chambers of the audiencias. 4. Those arising between the said judges or special courts, among themselves or with others of a different jurisdiction, when any of the contending parties holds an office within the territory of the audiencia of Puerto Principe or that of Porto Rico, by the civil chamber of the audiencia of Habana. 5. All other cases, by the third chamber of the supreme court. ART. 100. The transmission of the records of proceedings shall always be made with a citation to the parties to appear within ten days, if the records are to be forwarded to the court of first instance, within fifteen days, if to be forwarded to the audencia, and within sixty, if they are to be transmitted to the supreme court. When the transmission of the record of the proceedings is to be made to the supreme court, a certified copy thereof shall be forwarded. ART. 101. After the record has been received by the court, it shall be delivered for a period of three days to the pronotor ,fical, and in view of his report the judge shall render his decision within a similar period, if the parties should not have appeared. If said parties have appeared, they shall be cited to be present within a period not to exceed six days, and shall in the meantime have access to the records in the clerk's office. Should they appear on the day fixed, they or their attorneys shall 28

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LAW OF CIVIL PROCEDURE. be heard, and within three days thereafter a decision shall be rendered deciding the question of competency. Against this decision there shall be no remedy whatsoever, except an appeal for annullment of judgment for breach of form in actions of unlawful detainer. ART. 102. As soon as the audiencia or the supreme court receives the record of proceedings, it shall be delivered to the relator' in order that lie may prepare an abstract thereof as soon as possible. ART. 103. After the abstract has been prepared, it shall be delivered, together with the record, to the public prosecutor, in order that he may make his written report thereon within the period of four days. ART. 104. If the parties, or any of them, have appeared, the record shall be delivered to each of them for their examination for three days, which period can not be extended, after which they shall be officially recovered and the day for the hearing shall be fixed. This hearing must take place, with or without attorneys, within eight days after the return of the records. ART. 105. From the rulings of audiencias deciding questions of competency the only remedy shall be an appeal for annulment of judgment by reason of breach of form, which shall be allowed after the action has been definitely settled. Against the rulings of the supreme court there shall be no further remedy. ART. 107. The decisions of the supreme court on questions of competency shall be published within the ten days following the date of their rendition in the Gaceta de Madrid and in due time in the Coleccidn Legislativa. ART. 108. The supreme court may tax the costs of the inhibition against the judge or court and against the party willfully raising or opposing it, determining, in a proper case, the proportion in which they shall pay the same, or whether they are to be paid by the parties exclusivelV. When the person who has raised the question of competency is included within the provisions of the second paragraph of article 78, all the costs shall be taxed against him. The audiencias and judges of first instance may make the same declarations when they decide questions of cbmpetency. Should they not make any special-taxation of costs, those arising in the question of competency shall be considered as defrayed by the Government (de oqfcio).2 'The person appointed in each superior court to make the briefs of the causes.Encriche, Diccionario de Legislacida y Jurisprudencia. In accordance with the provisions of this law, the taxation of costs against the litigant and the municipal judge is proper when they willfully and improperly raise and sustain an inhibition, giving the law an interpretation against its spirit and that of the constant jurisprudence of the supreme court, to which they should have conformed.-Decision of July 3, 1884. 29

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LAW OF CIVIL PROCEDURE. ART. 109. The court which may have decided the question of competency shall forward the cause and the proceedings had before it, for decision to the judge or court which has been declared competent, with a certificate of the judgment rendered, and shall inform the one considered incompetent thereof. Said court shall also see that its decisions relating to costs be enforced, and shall, after the taxation thereof, issue the proper orders for the purpose. ART. 110. When the question of competency between two or more judges or courts should be negative, by reason of the refusal of all of them to take cognizance of a cause, the common superior court or the supreme court, in a proper case, shall decide the question of competency, the same procedure that is prescribed for other questions of competency being pursued. ART. 111. The questions of competency or of powers arising between two chambers of a court, shall be decided by the chamber of administration of the same, the public prosecutor being heard in writing, without any other proceeding and without further remedy, unless it be an appeal for annulment of judgment, when proper, from the definite judgment of the cause. ART. 112. Questions of jurisdiction interposed by secular judges or courts, against ecclesiastical judges or courts, shall be heard and decided in accordance with the rules established for appeals for review to civil courts from decisions of ecclesiastical courts.' ART. 113. When ecclesiastical judges or courts consider that jurisdiction over a matter pending before secular courts or judges belongs to them, they may issue a writ of inhibition, and should said courts not inhibit themselves they may complain to the immediate superior of the said civil courts or judges, who, after hearing the representative of the department of public prosecution thereupon, shall decide what he may consider proper. Against this decision there shall be no remedy whatsoever. ART. 114. The inhibitions and declinatures shall stay all proceedings until the question of competency is decided, except in the case referred to in the foregoing article. During the stay of proceedings, the judge or court inhibited may, at the instance of a legitimate party, take any steps which may be absolutely necessary in his or its judgment which, if delayed, would cause irreparable injury. ART. 115. All proceedings had before the decision of the questions 'Becurso de fuerza en conocer: The complaint made by a person who considers himself unjustly treated by an ecclesiastical judge to a secular judge, imploring his protection, and requesting that the former be ordered to repair the injustice done the appellant.-Noviia Recopilacidn, book 2, title 2, law 1. 30

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LAW OF CIVIL PROCEDURE. of competency, shall be valid without requiring ratification by the judge or court which is declared competent.' SECTION IV. -Remedy of complaint against administrative authoritties. ART. 116. The governors-general of the islands of Cuba-and Porto 7' Rico are the only authorities which may raise questions of positive or negative competencies in the name of the administration against superior or inferior courts exceeding their jurisdiction, in cases where they invade the powers pertaining to administrative officials.2 ART. 117. Positive or negative questions of competency which the administration may raise against judges or courts, shall be heard and determined in the manner prescribed by the laws and regulations relating thereto. ART. 118. Judges or courts can not raise questions of competency against the officials of the administrative service. Nevertheless, they may maintain the jurisdiction and powers vested in them by the constitution and laws, and they may complain against the invasions of said authorities, by means of appeals to the Government. ART. 119. Remedies of complaint may be sought1. At the instance of the party injured. 2. At the instance of the department of public prosecution. 3. Officially (de ofcio). ART. 120. The chambers of administration of the audiencias and that of the supreme court only may seek the remedy of complaint against the invasions of the administration in judicial powers. AR. 121. Municipal courts and those of first instance, when their powers are invaded by the administrative authorities, shall inform the chamber of administration of the audiencia thereof, in order that the latter may seek the remedy of complaint, if it considers it proper. For this purpose the municipal courts shall forward to those of first instance of their judicial district the record of the proceedings containing the facts relative to the abuse of power committed by the agent. of the administrative service, and the latter shall forward the same with their report to the proper audiencia. 1(a) Judges of ordinary as well as of the privileged jurisdiction must bear in mind the jurisprudence established by the supreme court in decisions of questions of competency and conform thereto and not act in contravention of jurisprudence already established for cases of the same character.-Decision of May 24, 1862. (b) Decisions of the supreme court, besides deciding the concrete questions to which they refer, must serve as rules to judges in similar cases, and the latter shall not be permitted to insist on their own particular rulings in order to raise or.prosecute questions of competency against the express and decisive declarations of said court.Decision of January 80, 1861. 2 This precept was subsequently confirmed by the prvinial law of 1882, article 27, and by the Royal decree of November 28, 1888. 31

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LAW OF CIVIL PROCEDURE. K When the proceedings have been initiated in the courts of first instance, they shall be forwarded directly to the audiencia. If they should have been instituted in the chambers of justice of the .audiencias or of the supreme court, they shall be referred to the respective chamber of administration after their conclusion. ART. 122. The chambers of administration of the audiencias, after receiving the proceedings referred to in the foregoing article, or in view of the proceedings commenced or prosecuted before them, and that of the supreme court, in a proper case, shall forward the same to the department of public prosecution for a report thereon with precedence over everything else. ART. 123. In view of said report, and after completing the proceedings, if necessary, the chambers of administration of the audiencias, or that of the supreme court, in a proper case, shall decide whether the remedy of complaint should or should not be sought. If they decide that said remedy should be sought, they shall do so in a statement containing the reasons, unless they should accept the report of the department of public prosecution without any other addition. ART. 124. The Government shall decide these disputes in the manner prescribed in the laws and regulations.' TITLE III. APPLICATIONS TO CIVIL COURTS FOR MODIFICATION OF ACTIONS OF ECCLESIASTICAL COURTS.2 ART. 125. An application for the modification of the action of an ecclesiastical court may be made when an ecclesiastical judge or court hears, or attempts to hear, a secular cause not subject to ecclesiastical jurisdiction, or attempts to execute any judgment, by attachment or sale of property, pronounced in any matter within his or its jurisdiction, without seeking the aid of the ordinary jurisdiction. ART. 126. The audiencias of Cuba and Porto Rico shall pass on applications for the modification of the action of the Nunciature or of the higher ecclesiastical tribunals of the court; and the audiencias on those relating to the action of other ecclesiastical judges or courts of their respective districts. Against the decisions rendered thereon by the supreme court, or by the audiencias, there shall be -no further remedy. ART. 127. The following persons may apply for the modification of the action of ecclesiastical courts: 1. Those who consider themselves injured by the usurpation of powers made by an ecclesiastical judge or court. ',See note to article 116. The subsequent proceedings are indicated in the organic law of the judiciary. 2See note to article 112. 32

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LAW OF CIVIL PROCEDURE. 33 2. The public prosecutors of the audiencias at their own instance or upon the request of that of the supreme court. ART. 128. The municipal public prosecutors (fiscales), deputy public prosecutors (prom otores ,ftscales), and the judges and courts of the ordinary jurisdiction can not directly make application for the modification of the action of an ecclesiastical tribunal. When the above-mentioned officials should learn that some ecclesiastical judicial authority has interfered in any matter foreign to its jurisdiction, they shall apply to the public prosecutors of the audiencias or to the one of the supreme court, according to their respective powers, furnishing the data and information they may have in order that they may make the application, should they consider it proper. ART. 129. Persons who consider themselves injured by an ecclesiastical judge or court, and who desire to make an application for the modification of his or its action, shall do so in the manner prescribed by this law. ART. 130. The department of public prosecution shall make the application directly and without any preparation whatsoever. ART. 131. The person injured shall prepare the application before the ecclesiastical judge or tribunal, requesting, in a signed petition, that said ecclesiastical court desist in the hearing of the matter and forward the record or the proceedings already had to the competent judge, stating that if this be nottdone, royal protection against his action will be sought. ART. 132. When the ecclesiastical judge or court should deny the petition made in accordance with the foregoing article, the person injured may demand a certified copy of the ruling of denial, and after it has been obtained the application shall be considered as prepared. ART. 133. If the eclesiastical judge or court should refuse to issue said certificate, or not issue an order desisting from hearing the matter, the person injured may file a complaint in the audiencia within the territory of which the former exercises his or its jurisdiction, in accordance with the provisions of this law. ART. 134. The court before which the complaint is made, if competent to pass upon the application, shall order the ecclesiastical judge or court to deliver the certificate to the appellant within three days after the receipt of the royal order addressed to him for that purpose. ART. 135. If the ecclesiastical judge or court should not comply with the order mentioned in the foregoing article, a second royal order shall be sent to the same, threatening said ecclesiastical judge or court with the penalty prescribed for this case in the Penal Code.1 ART. 136. If the second royal order should not be obeyed, the court taking cognizance of the application shall order the judge of first 1 See article 388 of the Penal Code for Cuba and Porto Rico. 5190 3

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LAW OF CIVIL PROCEDURE. instance of the judicial district in which the ecclesiastical judge or tribunal resides, to recover the record of the proceedings and forward the same, and immediately begin the institution of the proper criminal action. In such case the application for modification of the action of the ecclesiastical court shall be considered as made by the transmission of said record. ART. 137. When proof of the denial decreed by the ecclesiastical judge or tribunal has been presented before the proper court, or when the application has been directly made by the department of public prosecution, a decision shall be rendered admitting or denying the admission of said application. ART. 138. The court shall order the admission when there are reasons leading it to believe that the ecclesiastical judge or tribunal has gone beyond the limits of his or its jurisdiction and powers. Otherwise it shall declare that the appeal was not well taken. ART. 139. In the same order in which the court admits the application, it shall require by royal order that the ecclesiastical judge or tribunal transmit the records within three days, unless they should already be before the court as a consequence of the fulfillment of the prescriptions of article 136. ART. 140. In the royal order issued in accordance with the provisions of the foregoing article, the ecclesiastical judge or tribunal shall be requested to cite the parties to appear within ten days, if willing, which period can not be extended, before the court hearing the application, for the purpose of asserting their rights. ART. 141. If the parties appear by virtue of the provisions of the foregoing article, they shall be considered as parties to the application. Should they not do so, the application shall be heard without their attendance in the same manner and with the same effect as if they had been present. ART. 142. The ecclesiastical judges and courts may cite their respective prosecuting attorneys to appear as parties before the ordinary jurisdiction. The said ecclesiastical judges or courts shall 'have the same character of parties when they appear at the hearing of the application to sustain their acts and competency. ART. 143. If the ecclesiastical judge or court should not forward the records of the proceedings demanded of him, the provisions of article 136 shall be observed. ART. 144. If the judge of first instance, in compliance with the provisions of article 136, should forward the record to the court, he shall order notice thereof to be given to the parties thereto, citing them to appear for the purposes prescribed in article 140. ART. 145. After the records of the proceedings have been for34

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LAW OF CIVIL PROCEDURE. warded by the judge of first instance, in accordance with the provisions contained in the preceding articles, the application shall be considered as admitted by the mere fact that said record is before the court of competent jurisdiction. ART. 146. In any case, after the records have been received by the audiencia, the application shall be heard and determined in the manner prescribed in this law for appeals upon incidental issues. ART. 147. The representative of the department of public prosecution shall also be a party to the applications not made by the same, and he must in all cases attend the hearing thereof. ART. 148. The court shall render a decision within eight days following the hearing, limiting itself to the following declarations: 1. That the application is not well taken, taxing the costs against the person making it and ordering that the record be returned to the ecclesiastical judge or court for the continuation of the proceedings according to law. In no case can the costs be taxed against the department of public prosecution. 2. That the ecclesiastical judge or court has wrongfully assumed jurisdiction in the matter, and ordering the same to vacate any impositions or punishments he or it may have imposed. In such case the costs may be taxed against the ecclesiastical judge or court, if he or it should, with well-known temerity, have assumed powers and jurisdiction which said ecclesiastical judge or tribunal did not have. This order shall be communicated in writing to the ecclesiastical judge or court. ART. 149. A report of every decision declaring that an ecclesiastical judge or court has wrongfully assumed jurisdiction shall be made to the government, a copy of said decision being also forwarded. ART. 150. When it should be declared that an application is not well taken, the records of the proceedings shall be returned to the ecclesiastical judge or court, with the proper certificate, in order that he or it may proceed in the matter according to law. ART. 151. After the return of the records of the proceedings, the costs shall be appraised and taxed. The audiencia shall issue the proper orders for their collection by judicial compulsion. S .ART. 152. If it be declared that the ecclesiastical judge or court has wrongfully assumed jurisdiction, the records of the proceedings shall be forwarded to the judge of competent jurisdiction, and the parties who have appeared before the court shall be cited to appear before the competent judge, the ecclesiastical judge being given written notice thereof. 35

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LAW OV CIVIL PROCEDURE. TITLE IV. CONSOLIDATIONS. SECTION I.Consolidation of actions. ART. 153. The plaintiff may consolidate in his complaint as many causes of action as he may have against the defendant, even though they proceed from different titles, provided that said actions are not incompatible with each other. ART. 154. The simultaneous exercise of two or more causes of action in one and the same action shall be incompatible, and they can not, therefore, be consolidated, in the following cases: 1. When said causes of action mutually exclude or are antagonistic to each other, to such an extent that the selection of one prevents the exercise of the other or renders it invalid. 2. When the judge who is to take cognizance of the main action should be incompetent, by reason of the matter or amount in litigation, to take cognizance of the consolidated actions. 3. When, in accordance to law, the causes of action must be heard and decided in actions of a different character. ART. 155. Causes of action which by reason of the amount litigated are subjects of oral actions, may be joined in actions of greater or of lesser import.1 In such cases the competency of the judge and the kind of declaratory2 action to be brought shall be determined by the accumulated value of all that may be-the object of the complaint. ART. 156. Causes of action against several persons, or by several persons against one, arising from the same source of title or based upon the same cause of action, may be joined and brought in one action.' 1 1ayor guantia: Greater import. These actions are such as involve interests valued at more than 3,000 pesetas, questions relating to political or honorary rights, those in which the interest involved can not be appraised or determined, personal exemptions and privileges, filiations, paternity, and other questions involving the civil status and condition of persons. Menor cuantia: Lesser import. Actions involving interests of over 250 and not exceeding 3,000 pesetas.-Alcubilla, Diccionario de la Administracidm espahtola. 2 Juicio declarativo: That involving doubtful and controverted rights which must be judicially decided.-Escriche, Diecionario razonado de legislacidn y jurisprudencia. Article 156 is limited to permitting a consolidation when one person has several causes of action against another, and when several persons have a cause of action against one person, fixing the kind of causes of action which may be joined in either case, without determining the effects of the consolidation; and article 159 provides that all the causes of action must be heard in the same suit and decided by the same judgment. Therefore, there is no appeal for the violation of article 156 when taken 36

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LAW OF CIVIL PROCEDURE. ART. 157. The consolidation of actions shall not be permitted after answer to the complaint has been made, but the plaintiff reserves the right to institute the proper independent actions. ART. 158. If, before answer is made, the complaint be extended in order to consolidate new causes of action in addition to those already included in the complaint, the period of time to answer -shall be counted from the time of the filing of the extension of the complaint. ART. 159. When the consolidation of causes of action can take place and is made at the proper time by the plaintiff, it shall produce the effect of their being heard in one and the same action and being decided in one and the same judgment. SECTION II.-Consolidation of records of proceedings. ART. 160. Consolidation of records of proceedings may only be ordered at the instance of a proper party to the action. Proper parties for this purpose shall be those who may have appeared as litigants in any of the causes, the consolidation of which is desired.1 ART. 161. The consolidation may be ordered in the following cases: 1. When the judgment to be rendered in one of the actions, the consolidation of which is requested, would raise the exception of res judicata in the other. 2. When an action is pending before the competent court on the same matter which is the object of that instituted subsequently. 3. When bankruptcy or insolvency proceedings are pending and the property of the insolvent or bankrupt is the subject of the action instituted.' 4. When testamentary or intestate proceedings are pending and the property of the estate is the subject of the action instituted and under the wrongful assumption that it grants to one colitigant the right to maintain an action which another may have abandoned after having brought it.-Decision of May 18, 1891. The causes of action can not be consolidated when their origin and the persons 7 against whom they are directed are different.-Decision of April 14, 1886. The consolidation can not take place when the actions which the plaintiff exercises arise from different private contracts entered into by him with different fire insurance companies.-Decision of April 20, 1887. 1Records of proceedings can not be consolidated when they relate to acts which are not connected with each other.-Decision of May 9, 1864. The decree ordering the consolidation of appeals of which a court of justice is taking cognizance is not final.-Decision of March 29, 1889. The decision declaring the consolidation of two appeals not proper, is not final for the purposes of appeals for annullment of judgment.-Decision of February 8, 1888. The law does not make any distinction between voluntary and involuntary bankruptcy for the purposes of the consolidation of proceedings pending, which involve the property of the bankrupt.-Decision of March 12, 1869. 37

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LAW OF CIVIL PROCEDURE. said action is declared to be subject to consolidation with said proceedings.1 5. When the unity of the action would be destroyed if the actions should be prosecuted separately. ART. 162. The unity of the action is understood as destroyed, for the purposes of the last paragraph of the foregoing article1. When there is identity of persons, things, and causes of action between two actions. 2. When there is identity of persons and things, even though the causes of action be different. 3. When there is identity of persons and causes of action, even though the things be different. 4. When the actions are based upon the same cause, even though they be instituted against many persons, thereby causing diversity of persons. 5. Then the actions are based upon the same cause, even though persons and things be different. 6. When there is identity of causes of action and of things, even though the persons should be different.' ART. 163. The consolidation may be requested at any stage of the action before the citation for final judgment. ART. 164. Ordinary actions, executory actions,3 summary proceedings relating to possession (interdictos), and in general all actions and proceedings of the same kind may be consolidated, provided that any of the causes mentioned in article 161 is attendant. ART. 165. Neither records of proceedings had in different instances nor ordinary proceedings ready for judgment can be consolidated. ART. 166. Executory actions can neither be consolidated with each 1The law requires, in order to permit the consolidation, that the action be brought against the property involved in the testamentary proceedings and that it be of those which can be consolidated; and if according to this rule, the action against the testamentary property may be consolidated to said proceedings, such is not the case when said action does not affect property which does not belong to the estate, as is the case of property sold after the period agreed upon has elapsed.-Decision of January 3, 1872. A. personal action against a debtor can not be joined to the testamentary proceedings of his deceased wife.-Decision of January 3, 1872. 2The unity and identity of a thing in litigation are indispensable, among other requisites, for a consolidation under the same order of procedure; but it is not a doctrine of jurisprudence that the consolidation of actions is always proper whenever there is said unity and identity.-Decisions of May 3, 1871, and January 25, 1875. The consolidation can not take place when the actions are terminated.-Decision of May 12, 1871. 'Juicio ejecutivo: An action the purpose of which is to enforce what is already determined or which appears from a title which has the same force of law as a judicial decision.-Escriche, Diccionario de Legislacidn y Jurisprudencia. 38

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LAW OF CIVIL PROCEDURE. other nor with proceedings for the settlement of estates' when only the property mortgaged is the object thereof, excepting the case mentioned in articles 147 or 141 of the mortgage law respectively in force in Cuba and Porto Rico. ART. 167. A final order of public sale is not an obstacle to the consolidation of executory actions. For this purpose such actions shall not be considered as closed until the execution creditor has been paid, or until the insolvency of the execution debtor is declared.2 ART. 168. If the same judge is taking cognizance of the actions sought to be consolidated and the records thereof are kept by the same clerk, the judge shall order that the clerk make a statement of all of said records. If said records are kept by different clerks, the judge shall order that said clerks include the records in one and the same statement. ART. 169. For the purpose of making the statement referred to in the foregoing article, the parties shall be cited to appear at a fixed day and hour, within eight days following the order. ART. 170. After the statement is made, and after hearing the counsel of the parties thereupon, if they should have appeared, the judge shall, within the two days following, render the decision he may consider proper. This decision may be appealed from for review and for a stay of proceedings. ART. 171. If the actions are prosecuted before different courts, the consolidation shall be requested before the judge competent to take cognizance of all of them. This competency shall be vested in the judge or court before whom the oldest action is pending, with which the latter actions shall be consolidated. From this rule are excepted testamentary, intestate, general assignment, and bankruptcy proceedings, with which all other records of proceedings shall be consolidated when proper.' 'Juicio universal 6 general: The proceedings in which all the actions and rights which all creditors have against the property of another are heard and determined, such as bankruptcy, testamentary, and intestate proceedings.-Escriche, Diccionario de Legislaci6n y Jurisprudencia. 2 The provisions contained in this article shall not be an obstacle to the consolidation of the records of executory actions when proper if a final order of public sale has been made, and the proceedings shall not be considered closed until the execution creditor has been paid in full or the execution debtor has been declared insolvent.-Decision of May 10, 1887. sThe general provisions of this law relating to the consolidation of records are applicable to the consolidation of proceedings for the settlement of estates. If there should arise a question between testamentary and bankruptcy proceedings, the judge of the proceeding which has been pending longest shall take cognizance of both.Decision of April 17, 1889. 39

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LAW OF CIVIL PROCEDURE. ART. 172. The written request for the consolidation shall be accompanied by as many copies thereof as there may be parties to the action in which the request is made, to whom said copies shall be delivered, in order that within three days thereafter they may object to said request, if they consider it advisable. ART. 173. After the expiration of the period above mentioned the judge shall, without further proceedings, render a decision allowing or denying the consolidation, whether written objections thereto have been made or not. There shall be no remedy whatsoever against the decision allowing the consolidation. An appeal for review only shall lie against the decision denying the consolidation. ART. 174. When the judge considers the consolidation proper, he shall, in the same decision, order a communication addressed to the one hearing the causes, requesting the records. To this communication there shall be attached a certified copy of such data as may be considered by the judge as sufficient to furnish information of the reasons on which the request for consolidation is based. ART. 175. When the requisition and certificate have been received by the other judge, within a period of three days, which can not be extended, a hearing before him shall be had of all matters which have arisen in the action. ART. 176. Upon the expiration of said period, the records shall be officially recovered, if necessary, and the judge shall render a decision granting or denying the consolidation. The decision granting the consolidation may be appealed from for review only, but against the decision denying the consolidation there shall be no remedy whatsoever.' ART. 177. If the consolidation has been granted, the record shall be forwarded to the judge who may have requested it, and the parties shall be cited to appear within fifteen days and assert their rights. ART. 178. If the consolidation should be denied, the judge upon whom requisition has been made shall communicate said denial without delay to the judge requesting the consolidation, attaching to his communication a certificate of the data which he may consider necessary to justify his decision, with a request for an answer, in order to continue proceeding in the action, if permitted to do so, or to forward the record to the person who is to decide the question. ART. 179. The judge who may have requested the consolidation, as soon as he receives said communication, shall cease hearing the action without any further proceedings, if he finds that the reasons advanced y in support of the denial are well founded, and shall answer the other 'A decision, whether granting or denying the consolidation, is not final for the purposes of an appeal for annullment of judgnent.-Decisions qf &eptemtber 28, 1866, October 15, 1868, January 12, 1870, September 29, 1871, and &qptember 2W, 1872. 40

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LAW OF CIVIL PROCEDURE. judge without delay in order that he may continue proceeding in the action. This decision may be appealed from for review only. ART. 180. If the judge who is requested to transmit the record should refuse to do so, basing his refusal upon a belief that the consolidation should be made with the actions pending before him, the requesting judge, after receiving the communication and certificate, shall, within the period of three days, which can not be extended, hearthe party who has requested the consolidation, after which, or after recovering the records, he shall render the decision thereupon which he may consider proper. ART. 181. In the case of the foregoing article, if the judge requesting the consolidation should believe that said consolidation should be made with the records pending in the other court, he shall order said consolidation made in the manner prescribed in article 177. This decision may be appealed from for review only. ART. 182. If the judge requesting the consolidation should find that the reasons advanced by the other for his refusal or claim are unfounded, he shall forward the records to the proper superior authority, with a citation of the parties, and shall notify the other judge in order that he may also transmit his records to the same authority. By said superior authority is understood the authority having jurisdiction to decide questions of competency.1 ART. 183. The subsequent steps in this issue shall be according to the provisions prescribed for questions of competency, but the department of public prosecution shall not be heard therein. ART. 184. The hearing of the actions involved in the consolidation shall be suspended during the pendency of the request for consolidation. ART. 185. If neither of the judges should desist from their purpose, the suspension shall not be raised until the proper superior may have rendered his decision: However, the suspension shall be considered raised when any decision has been rendered which may be appealed from for review according to articles 173, 176, 179, and 181, without prejudice to what may be proper after a decree to carry out the decision has been issued in view of the appeal taken. ART. 186. By virtue of the consolidation, the proceedings consolidated shall be continued in one and the same action and shall be determined in one judgment. ART. 187. When two or more actions are consolidated, the course of the one nearer completion shall be suspended until the others arrive at the same stage. 1 From a ruling deciding a question of consolidation there lies only an appeal for breach of form, as in cases of questions of competency.-Decision of Mray 27, 1886. 41

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LAW OF CIVIL PROCEDURE. This rule is not applicable to consolidations with proceedings relating to the settlement of estates, in which cases those consolidated thereto shall immediately be advanced to the same stage. TITLE V. CHALLENGES. SECTION I.General provisions. ART. 188. Justices and judges, whatever be their rank or hierarchy, and assessors' to municipal judges who substitute those of first instance, and subordinate officials of superior and inferior courts, may be challenged only for a legitimate cause.' ART. 189. The following are legitimate causes of challenge: 1. Relationship by affinity or consanguinity within the fourth civil degree with any of the litigants. 2. The same relationship within the second degree with the attorney of any of the parties to the action. This shall be understood without prejudice to the prohibition which is imposed upon attorneys to act as such in actions in which any of their relatives within the same degrees are to act as judges. 3. To be or have been denounced by any of the parties as the principal, accomplice, or accessory in a crime, or as a principal in a misdemeanor. 4. To have been the counsel for any of the parties, to have made a report on the suit as an attorney, or to have taken part therein as the public prosecutor, or as an expert or witness. 5. To be or have been the guardian, or having been under the guardianship of any person who is a party to the action. 6. To be or have been the denouncer or private accuser of the challenging party. 7. To have an action pending against the challenging party. 8. To have a direct or indirect interest in the action, or in another similar action. 9. Intimate friendship. 10. Manifest enmity. 'Assessors to municipal judges: The municipal judges or their substitutes take the place of judges-of first instance and examination in accordance with article 69 of the organic law of the judicial service of September 15, 1870. If they are not attorneys they require an assessor who is an attorney, in accordance with article 71.-Alcubilla, Diccionario de la administracidn espanola. Assessors to a judge are persons possessed of knowledge in the law who are appointed to advise and direct the decisions of the judges in certain inferior courts.-Sweet's Law Dictionary. 2An appeal for anullment of judgment does not lie from a decision on the challenge of judges, because they do not have the character of definite decisions, nor do they terminate an action, nor render its continuation impossible.-Decision of January 19, 1885. 42

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LAW OF CIVIL PROCEDURE. ART. 190. Justices, judges, and assessors in whom any of the circumstances mentioned in the foregoing articles is attendant, shall abstain from hearing the matter without waiting to be challenged. The same rule shall apply to the subordinate officials of audiencias and courts in similar cases. There is no appeal whatsoever from these resolutions, without prejudice to the provisions of article 216. ART. 191. Only legitimate parties to an action or persons having a right to be such, and who appear in the matter involving the challenge, shall have a right to interpose a challenge.1 ART. 192. The challenge shall be interposed in the first instrument submitted by the challenging party, if the cause on which it is based is prior to the action and he has knowledge thereof. If subsequent thereto, or even though prior to the same, the challenging party should not have had knowledge thereof until after the institution of the action, he must interpose said challenge as soon as the cause comes to his notice. Should this not be done, the challenge shall be disallowed. ART. 193. In no case shall the challenge be interposed after the parties have been cited for judgment in first instance, nor after the hearing of the case has begun before the audiencia. Neither shall said challenge be interposed in the proceedings for the execution of the judgment, unless it is based on legitimate causes which it is well known have arisen after judgment was rendered. SECTION II.-Challenge of justices, judges of first instance, and assessors. ART. 194. The challenge of the presiding and associate justices of the supreme court and of the audiencias, as well as of judges of first instance and municipal judges and their assessors, in a proper case, when they substitute those of first instance, shall be made in writing and subscribed by an attorney, by the solicitor when one takes part in the proceedings, and by the challenging party if able to sign and if he be at the place where the action is pending. If the challenging party should not be present, the challenge shall be subscribed by the attorney and solicitor only, if the latter should be expressly authorized to challenge. In any case the cause of the challenge shall be clearly and explicitly stated.' 'If the instrument requesting a challenge does not contain the signature of the attorney and that of the person challenging, it can not be considered as made.-Decision of February 7, 1862. 2 If the presiding judge of an audiencia attends the hearing of a case, if there be cause for challenge, he must be challenged as soon as he is seen to preside over the chamber.-Decision of November 9, 1863. See amendments, etc., made for Cuba in orders Nos. 166 and 242, series of 1900, in Appendix. 43

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LAW OF CIVIL PROCEDURE. ART. 195. If the litigant interposing the challenge be at the place where the action is pending, said challenge must be sworn to by him, without which requisite it shall not be heard. ART. 196. Said written challenge shall be accompanied by as many copies of the same as there are other litigants, to whom they shall be delivered at the time the first order made is served upon them, for the purposes mentioned in articles 514 et seq.1 ART. 197. If the judge challenged should consider the cause of challenge proper, being true and included among those mentioned in article 189, whatever be the form the challenging party may have adopted, said judge shall immediately render a decision allowing the challenge and shall order that the record be transferred to whomsoever is to take his place. If the challenge should be interposed against a justice, if he considers the cause alleged as true, and the chamber deems it well taken, it shall render a decision allowing the challenge. There shall be no remedy whatsoever against these decisions, without prejudice to the provisions of article 216.' ART. 198. The decision admitting or denying the challenge shall be communicated only to the solicitor of the challenging party, even though the latter be at the place where the action is pending and has signed the written challenge. ART. 199. If the challenged party should not consider himself included in the cause alleged for the challenge, he shall disallow it, and a separate record shall be ordered made at the cost of the challenging party for the hearing of the issue. Said record shall contain the original written challenge with the proceedings had thereupon, a memorandum thereof being inserted in the main record.' ART. 200. During the hearing of the challenge the party challenged can not take part in the main action nor in the hearing of the said challenge, and shall be substituted by the proper judge, according to law. ART. 201. The interposition of the challenge shall not suspend the course of the action, the proceedings of which shall be continued until the action is ready for citation for final judgment, at which stage it shall be suspended until the challenge is decided, if it has not yet been determined. ART. 202. For the purposes of the foregoing article and of article 197, when the party challenged is a judge of first instance, he shall transfer the principal record and the separate record of the challenge to the judge who is to hear the latter, in accordance with the last paragraph of the following article. 1 See in Appendix order No. 242, series of 1900, for change made for Cuba. 2A judge who, after disallowing a challenge shall not order a separate record made and shall continue hearing the case, rendering final judgnient, violates this provision and that of the following article.-Decision of December 17, 1886. 44

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LAW OF CIVIL PROCEDURE. ART. 203. The following shall hear and determine challenges: If the party challenged should be the presiding judge, or the presiding judge of a chamber of an audiencia or of the supreme court, the senior presiding judge of the chamber; and if the one challenged should be the senior, then the one next below hiln in length of service. If the party challenged should be an associate justice of an audiencia or of the supreme court, the senior associate justice of his chamber; and if the one challenged should be the senior justice, the one next below him in length of service. If the party challenged should be a judge of first instance or a person acting as such, the substitute judge of the court, with the concurrence of the assessor, should the former not be an attorney, unless there should be another judge of first instance in the same town, in which case the latter shall hear and determine the challenge; should there be three or more, the one senior to the judge challenged, and if the latter should be the senior judge, then the junior judge. ART. 204. After the separate record has been prepared, a copy thereof shall be given to the opposite party in the action, in order that within three days he may allege what he may deem proper with regard to the challenge. If there should be two or more opposite litigants, said period of time shall be common for all of them, and they shall allege what they may deem proper in view of the copy of the written challenge. ART. 205. After the foregoing copy has been served, or after the period has elapsed without the persons having appeared to assert their rights, evidence on the issue shall be received for a period of ten days, which can not be extended, when the challenge is based on facts not proven and not admitted by the party challenged. In all other cases the challenge shall be heard and determined in the manner prescribed for incidental issues. ART. 206. Issues of challenge shall be decidedIf the party challenged were the presiding judge, or a presiding judge of a chamber of the supreme court or of an audiencia, by the court in bano of which the challenged party is a member. If he were an associate justice, by the chamber to which he belongs. If the party challenged were a judge of first instance, by the judge hearing the challenge issue, in accordance with the last paragraph of article 203. ART. 207. The declaration admitting or disallowing a challenge shall be made in a written decision within three days. ART. 208. There shall be no remedy whatsoever against the decisions rendered by the supreme court. From those rendered by an audiencia, an appeal for annulment of judgment only shall lie in a proper case. Decisions rendered by judges of first instance, or by their substitutes, admitting a challenge, can not be appealed from. 45

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LAW OF CIVIL PROCEDURE. Decisions disallowing a challenge may be appealed from for review and for a stay of proceedings.' ART. 209. After an appeal from a decision disallowing a challenge is filed and allowed, the parties shall be cited to appear before the proper audiencia within the period of ten days, for the purpose of asserting their rights; and the original separate record of the challenge shall be forwarded to the said audiencia. ART. 210. These appeals shall be heard and determined in accordance with the procedure established for incidental issues. ART. 211. If the challenge should be disallowed, the costs thereof shall always be taxed against the person interposing said challenge. ART. 212. In addition to the costs mentioned in the foregoing article, the challenging party shall be fined not less than 125 or more than 250 pesetas, if the person challenged should be a judge of first instance and from 250 to 500 pesetas when the challenged party should be the presiding judge or an associate justice of an audiencia. ART. 213. If the fines respectively mentioned in the foregoing article should not be paid, imprisonment shall be imposed upon the person in default in the manner and for the time prescribed by the penal code for criminal causes. ART. 214. Upon the disallowance of the challenge, as soon as the ruling has become final, the case shall be returned to the original judge in order that he may proceed with the hearing thereof in accordance with law. ART. 215. If the challenge be allowed, and the party challenged should be the presiding judge or an associate justice of a court, he shall not take further part in the hearing of the proceedings. If the challenged party should be a judge of first instance, he shall also cease taking further part in the action, the hearing of which shall be continued by the judge to whom the records may have been transferred in accordance with the provisions of article 203. If the judge challenged has ceased to perform his duties in the original court, on account of a transfer or for any other reason whatsoever, the case shall be returned to the said court in order that the hearing thereof may be continued by the new judge who may have taken the place of the one challenged. ART. 216. If a judge of first instance shall voluntarily, or at the instance of a legitimate party, abstain from proceeding in an action, in 'A decision confirming a declaration that the challenge of a judge is disallowed does not have a final character, because it neither closes the action, nor does it make its continuation impossible.-Decision of October 19, 1889. Neither is a ruling deciding a challenge of a judge or associate justice final for the purposes of annulment of judgment.-Decision of January 19, 1885. t See number 7 of article 1691 of this law, which authorizes an appeal for annulment of judgment by reason of a violation of these provisions. 46

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LAW OF CIVIL PROCEDURE. accordance with the provisions contained in articles 190 and 197, he shall render a true report thereof to the presiding judge of the audiencia, who shall communicate the same to the chamber of administration thereof. If said chamber should deem that the abstention is improper, it may impose disciplinary correction upon said judge, if there be sufficient cause therefor, communicating it in such case to the colonial department in order that the same may be entered in the personal Pecord of the judge, for the proper purposes. ART. 217. If the audiencia should reverse the decision disallowing the challenge, it shall send a copy of its ruling to the said department for the purposes of the foregoing article. SECTION III. '-iallenge Of municipal judges. ART. 218. In oral and other actions of which municipal judges take cognizance in first instance, the challenge shall be interposed at the time of the appearance.' ART. 219. In view of the challenge, if the cause alleged should be of those mentioned in article 189 and be true, the municipal judge shall allow the same, transferring the cognizance of the cause to the judge who is to take his place. If the challenge should be disallowed, he shall enter his ruling in the record and shall also transfer the cognizance of the cause to the proper judge. There shall not be any remedy whatsoever against these decisions.' ART. 220. For the purposes of the foregoing articles, municipal judges who may have been challenged shall be substitutedBy their respective substitutes, in towns where there is no other municipal judge. Where there are two municipal judges, by the one not challenged. If there should be three or more municipal judges, by the one next above him in length of service; should this seniority not be judicially determined, by the one next senior in age; and if the one to be substituted should be the oldest in length of service, by the junior one in point of appointment. ART. 221. The secretary of the municipal judge challenged shall communicate the same to the judge who, in accordance with the provisions of the foregoing article, is to take cognizance of the question, so that he may order what he deems proper. In the case of the second paragraph of article 219, the judge who is to pass upon the challenge shall require the parties to appear at a day and hour fixed within the next six days. He shall hear the parties at the time of said appearance, and shall at the same time receive the evi'See in Appendix order No. 242, Havana, June 18, 1900, amending this article. 47

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LAW OF CIVIL PROCEDURE. dence they may submit with regard to the cause for the challenge, when the question is a question of fact. ART. 222. Upon the admission of the evidence, or when the same is not necessary because the question is one of law, the municipal judge substituting the one challenged shall decide, allowing or disallowing the challenge, at the same proceeding, if possible, in which case his decision shall be entered in the record to be made thereof. Otherwise he must render his decision within two days, which shall be written immediately after the record. ART. 223. There shall be no remedy whatsoever against a decision allowing a challenge.' x From the decision disallowing a challenge an appeal lies to the judge of first instance of the judicial district in which the court of the municipal judge challenged is situated. ART. 224. Said appeal shall be interposed verbally at the time of the appearance, when the substitute judge renders a decision therein disallowing the challenge. If he should make use of his privilege to defer the decision until the second day, the appeal shall be interposed at the time of said decision or within the following twenty-four hours. In such cases the appeal shall also be interposed verbally before the secretary of the court, an entry thereof being made. ART. 225. If no appeal should be taken within the period fixed in the foregoing article, the decision shall become final. If an appeal should be taken in time, the record shall be transmitted without delay to the court of first instance, at the cost of the appellant, and the parties shall be cited to appear. ART. 226. As soon as the record has been received by the court of first instance, the day for the hearing shall be immediately set, and shall be within the eight days following, the parties being notified thereof if they shall have appeared, or when they do appear. The judge shall hear the parties or any of them appearing at the hearing, and on the same day, and if that be not possible, then within the two days following, he shall render his decision thereon in writing. There shall be no remedy whatsoever against this decision. ART. 227. If the decision be in the affirmative, the costs shall be taxed against the appellant. ART. 228. If the challenge be disallowed, the costs shall be taxed against the challeging party, and a fine of from 65 to 125 pesetas, shall in addition be imposed upon him with regard to which the provisions of article 213 shall be applicable.1 ART. 229. When the challenge is allowed by a final judgment, and upon the return of the record with a certificate of the decision to the See in Appendix Cuban order No. 242 of July 18, 1900, amending this article. 48

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LAW OF CIVIL PROCEDURE. municipal court from which the appeal was taken, the subsequent proceedings in the action shall be had before the municipal judge or before the substitute who shall have heard the challenge, in accordance with article 220. If the challenge be disallowed also by final judgment, the judge challenged shall again proceed with the action. ART. 230. If the challenge of the municipal judge or of his substitute should occur at a proceeding to avoid litigation (acto de conciliacion) said proceedings shall be considered as attempted without further action, as prescribed in article 463. If the municipal judge, without being challenged, should voluntarily abstain from proceeding in the case on account of the attendance of any of the causes mentioned in article 189, his ordinary substitute shall continue the hearing of the proceeding to avoid litigation. ART. 231. When a municipal judge is challenged in proceedings which he is hearing by delegation of the judge of first instance, the challenge shall be interposed before the latter in writing, in the manner prescribed in article 194.' The judge of first instance shall forward the written challenge to the municipal judge challenged in order that he may suspend the proceedings and immediately report as to whether or not the cause of challenge is true; and the former shall hear and determine the issue in accordance with the procedure established in Section II of this title. ART. 232. In the case of the foregoing article, if any injury is liable to be caused by the suspension of the proceedings, the judge of first instance shall take the action necessary at the request of a party; and if that be not possible, he shall transfer the matter to another municipal judge, or to the substitute of the one challenged. ART. 233. If a municipal judge should abstain from proceeding in a matter which may have been intrusted to him by a judge of first instance, by reason of the attendance of some of the legal causes for challenge, he shall so state at the end of the communication of the judge of first instance and shall return it to the latter, who, if he shall consider that the cause alleged is proper, may give the same commission, without further proceedings to the substitute of the former or to another municipal judge. SECTION IV.-Challenge of subordinate officialsof super and zferior cowarts. ART. 234. The provisions of articles 194 et seq., of Section II of this title, shall be applicable to the challenge of relators,2 secretaries, 1 See order above mentioned, in appendix. 2 See note to article 102. For a description of the duties of relators see Book II, title 22, of the Recopilaciou de lhdias. 5190-4 49

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LAW OF CIVIL PROCEDURE. clerks of chambers, and officials of the chambers of the supreme court; to relators, secretaries, and clerks of chambers of an audiencia, and to the clerks and secretaries of the courts of first instance, with the modifications established in the following articles.1 ART. 235. After the written challenge has been presented and the party presenting it has ratified it, in a proper case, the official challenged shall immediately after said challenge make a statement as to whether or not the cause alleged is true and legitimate, and shall transmit the papers to the proper person, who shall report thereon to the chamber or judge hearing the cause. ART. 236. If the official challenged shall acknowledge the cause of challenge as true, the judge or court shall issue a written order, without further proceedings, allowing the challenge, if he deems that the cause alleged is one of those included in article 189.2 If he should consider that the cause alleged is not a legal one, the said judge or court shall disallow the challenge. ART. 237. In such cases there shall be no remedy whatsoever against the decision allowing the challenge. Against a decision disallowing a challenge, if rendered by the supreme court or by an audiencia, the only remedy is a petition for review before the same chamber, and if the decision were rendered by a judge of first instance, an appeal may be taken for review and for a stay of proceedings. Upon the admission of the appeal, the original record relating to the challenge shall be forwarded to the audiencia, with a citation to the parties to appear within 10 days, the records of the main action remaining in the court. ART. 238. When the subordinate official challenged should deny the truth of the cause alleged as a basis for the challenge, separate proceedings shall be ordered instituted in accordance with the provisions of article 199. The party challenged may be a party thereto if he requests it, and such pertinent evidence which he may submit shall be admitted. ART. 239. The separate challenge proceedings shall be heard: In the supreme court and the audiencias, by the junior associate justice of the chamber hearing the proceedings in which the official was challenged, and said associate justice may delegate to the proper judge of first instance the power to carry on such proceedings in regard thereto which said justice may not be able to attend to. In courts of first instance, by the judge hearing the main question. ART. 240. Issues of challenge of assistants shall be decided by the same chambers or courts which are taking cognizance of the question 1 See in Appendix Cuban order No. 242, July 18, 1900, amending this article. 2 See order above mentioned in appendix. 50

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LAW OF CIVIL PROCEDURE. in which the said assistant is acting, without further remedy, when the decision shall have been rendered by the supreme court or by an audiencia. Neither shall there be any remedy against the rulings of judges of first instance admitting a challenge. Decisions disallowing a challenge may be appealed from for review and for a stay of proceedings (en ambos efeetos), the provisions of article 209 being observed. ART. 241. In the case of the challenge of a secretary of a municipal court, the procedure prescribed for the challenge of municipal judges shall be pursued, the proceedings of challenge being heard and determined by the judge of the court in which the person challenged is performing his duties. ART. 242. The assistants challenged, from the moment they are challenged, can not act in the respective proceedings nor in the challenge proceedings, and shall be substituted by the official of the same class, who may be senior to them in length of service, and if the official challenged should be the senior, he shall be substituted by the junior in point of appointment. The secretaries of the municipal courts shall be replaced by their substitutes. Should they have no substitutes they shall be replaced by the person whom the judge may appoint. ART. 243. In addition to the provisions contained in article 193, the assistants can not be challenged during the performance of any proceeding or act intrusted to them. ART. 244. The challenge of assistants shall not suspend the course nor the decision of the cause or matter in which it has been interposed. ART. 245. When a challenge is allowed the assistant challenged shall be taxed the cost of the issue, should he have denied the truth or legality of the cause alleged. If a challenge should be disallowed, said costs shall be taxed against the challenging party in addition to the fees and charges mentioned in article 247. ART. 246. As soon as a decision allowing a challenge becomes final the assistant challenged shall definitely cease taking part in any manner whatsoever in the proceedings, and the person who substituted him during the hearing of the issue shall continue acting, and the said assistant shall not be permitted to charge any fees whatsoever from the time the challenge was interposed. ART. 247. If the challenge be disallowed, as soon as the decision becomes final, the assistant challenged shall reenter upon the discharge of his duties, and the challenging party shall pay him the fees for the work performed in the proceedings, without prejudice to paying the same fees to the person who may have substituted the assistant challenged. 97088 51

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-LAW OF CIVIL PROCEDURE. TITLE VI. JUDICIAL PROCEEDINGS AND PERIODS OF TIME. SECTION 1.-Judicial pOceeding8 in general. AR. 248. All judicial proceedings shall be written upon the stamped paper prescribed by the laws and regulations, subject to the penalties fixed therein. Rulings which must be rendered de icio in the cases prescribed by this law, and the proceedings for their fulfillment, shall be drafted on official stamped paper, without prejudice to payment therefor, when and in the manner proper. ART. 249. Judicial proceedings shall be authenticated, under penalty of annulment, by the public official who is charged with the duty of attesting or certifying to the act. ART. 250. The secretaries and recording clerks (ecribanos de aetuaciones) shall make a note of the day and hour of the presentation of instruments only in cases where a time certain is prescribed therefor. Whenever a party requests it, a receipt shall be given him on common paper and at his expense for any instrument or document delivered to said clerks, stating the day and hour of its presentation. AnT. 251. Judicial decisions shall be rendered before the secretary or clerk charged with the duty of authenticating them. The judges shall place their full signature on the first order made in each matter, as well as upon rulings and judgments, and their surnames on other orders of mere practice which they may render, and on the declarations and acts in which they may take part. The judgments and decisions of an audiencia shall be signed with the full signature of the justices who may have rendered the same, and the presiding judge of the chamber shall affix his rubric to all orders. The justice whose turn it is to prepare the case for decision (magistrado ponente) shall affix his surname to all proceedings had before him. ART. 252. The secretaries and recording clerks shall authenticate with their full signature, preceded by the words Before me," judicial decisions and other acts in which a judicial authority takes a personal part and the certificates or copies of papers which they may issue. Notices and other proceedings shall be authenticated with their surnames. AuT. 253. Rulings and orders made in proceedings in which relators take part shall be signed by them with their full signatures and with a statement of their official title before the signature of the clerk. ART. 254. The judges and, in a proper case, justices charged with the duty of preparing the case for decision, shall personally receive the declarations and shall preside over the proceedings for the taking of evidence. 52

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LAW OF CIVIL PROCEDURE. Said justices, nevertheless, may intrust these duties to a judge of first instance, and the latter to a municipal judge, when the proceedings are to be had in a town other than at their respective place of residence. None of said judges, however, shall be permitted to intrust these duties to secretaries or recording clerks, except in the cases authorized by this law. ART. 255. Proceedings which can not be had within the-judicial district where the action is pending, must be committed to the judge of first instance of the district where said proceedings are to be had. The latter shall comply with the provisions contained in the foregoing article. SECTION II.-Legal working days and hours. ART. 256. All judicial proceedings must take place on legal working days and during legal working hours, under penalty of nullity.' ART. 257. Legal working days are all days of the year excepting Sundays, full religious or civil holidays, and the days when courts are ordered closed.2 ART. 258. Legal working hours are those between sunrise and sunset.' ART. 259. Courts and judges may legalize illegal days and hours, at the instance of any party, should there be an urgent cause therefor. For this purpose urgent causes shall be considered such proceedings in which delay may cause serious injury to the persons interested or to the good administration of justice, or which would nullify the effect of a judicial order. The judge shall determine the urgency of the cause and shall decide what he may consider proper, without further remedy. 'The mere filing of an instrument can not be classified as a judicial proceeding for the purposes of a declaration of nullity.-Decisions of November 16, 1860, and December 12, 1861. The provisions of this section are explained by the decisions of November 16, 1860, and December 12, 1861, according to which in judicial terms days are to be understood as natural days, that is, of the twenty-four hours between midnight of one day and that of the next, and consequently an appeal may be admitted provided that it is filed before 12 o'clock midnight on the last day of the term. According to the organic law of the judicial service courts are closed on full holidays, on the feast days of the King, Queen, and Prince of Asturias, on Thursday and Friday of Holy Week, and on national holidays. 'lf the greater portion of a judicial proceeding had taken place before sunset, and should be signed by artificial light, it would not be invalidated thereby.-Decision of April 19, 1865. 53

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LAW OF CIVIL PROCEDURE. SECTION IfI.-Notifications, citations, summonses, and requisitions. ART. 260. Notice of all orders, rulings, and judgments shall be given to the parties to the action on the day of their rendition, and should this not be possible, on the day following. The same notice shall be given, when required, to persons referred to therein or who may be prejudiced thereby. ART. 261. If, by reason of the length of the judgment, it should not be possible to prepare copies thereof for service within the period above mentioned, said service may be delayed for the time absolutely necessary, which period can in no case exceed five days. ART. 262. Notices shall be served by the clerk, secretary, or official of the chamber authorized therefor, who shall read in full the order to the person upon whom service is made, and shall at the same time deliver to him a true copy thereof, signed by the recording clerk, even though said copy should not be demanded, stating the matter to which it refers. A statement of the foregoing must be made in the proceeding. ART. 263. The notices shall be signed by the clerk and by the person on whom service is made. If the latter were not able to sign, a witness shall do so at his request. Should he not wish to sign or provide a witness to sign for him, in a proper case, two witnesses summoned by the clerk for the purpose shall do so. These witnesses can not refuse to sign under the penalty of a fine of from 15 to 65 pesetas. ART. 264. Notices shall be served at the office of the clerk or in the place assigned in each court for this purpose, if the persons interested should appear in the same. Should they not appear at the proper time, said service shall be made at their residence, for which purpose said residence shall be des ignated in the first instrument which may be filed. ART. 265. If solicitors should not appear at the proper time in the office of the clerk or place assigned for the purpose, service shall be made upon them at their residence, but in such case the increase of costs arising from the proceeding shall be paid by them personally and can not be charged to their principals. ART. 266. When the residence is known of the person upon whom service is to be made and at the first attempt he should not be found, whatever be the cause or the time of absence, service shall be made by writ (eddula) at the same time and without the necessity of a judicial mandate therefor. AnT. 261. Writs for notifications shall contain the following: 1. A statement of the character and object of the action or matter, and the names and surnames of the litigants. 54

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LAW OF CIVIL PROCEDURE. 2. A true copy of the order or resolution which is to be notified. 3. The name of the person upon whom notice is to be served, with a statement of the reason for making it in that manner. 4. A statement of the hour at which said person was sought and not found at his residence, and the date and signature of the serving clerk. ART. 268. Said writ shall be delivered to the nearest relative, member of his household, or servant, over 14 years of age, who may be found within the dwelling of the person who is to be served, and if no one be found there, delivery shall be made to the nearest neighbor who may be found. The delivery shall be vouched for in the records by means of a statement containing the name, status, and occupation of the person who received the writ, his connection with the party to be served, and the obligation of the former of delivering said writ upon his return to the residence, or to inform him thereof, if said person knows his whereabouts, under a penalty of from 15 to 65 pesetas. The obligation of the party receiving the writ shall be made known to him by the clerk. Said statement shall be signed by the clerk, and by the person receiving the writ; and if the latter should not be able to sign or not wish to do so, the provisions of article 263 shall be observed. ART. 269. When the residence of the person to be served is unknown, or if his whereabouts is unknown by reason of his change of residence, a statement shall be made thereof and the judge shall order that the service be made by posting the writ at the usual public place and by publishing it in the Official Gazette and in the official bulletins of the provinces where there may be such. He may also order the publication of the writ in the Gaceta de Madrid when he deems it necessary. ART. 270. The foregoing provisions relating to notices shall also be applicable to citations, summonses, and requisitions, with the modifications contained in the following articles.' ART. 271. Service of citations and summonses upon those who are or who should be parties to the action, shall be made by writ delivered to the person to be cited instead of the copy of the order, a statement of said service being made in the proceedings. 'The provisions contained in articles 270, 271, and 274 of this law are of general application with regard to the manner of issuing summonses, and therefore, all summonses issued by municipal courts to appear before the supreme court or before any other superior court must conform to these prescriptions.-Decisions of July -3, August 27, September 13 and 2, 1884. When a certified copy of a judgment is delivered to a party requesting it, for the purpose of taking an appeal, the opposite party only has to be summoned to appear before the supreme court-Decision of October 30, 1884, 55

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LAW OF CIVIL PROCEDURE. ART. 272. The writ of citation shall contain1. The name of the judge or court issuing the order, the date of the latter, and the matter upon which it is based. 2. The name and surnames of the person upon whom service is to be made. 3. The purpose of the citation and the name of the party who requested it. 4. The place where and the day and hour when the person cited is to appear. 5. The admonition that if he fails to appear he shall suffer the penalty imposed by law; closing with the date and the signature of the clerk. If the appearance is obligatory this admonition shall be made, and if a second citation becomes necessary by reason of the failure of the party cited to appear, he shall be warned in said citation that if he fails to appear, or if he does not show good cause for nonappearance, he shall be prosecuted for the offense of serious disobedience to the authorities. ART. 273. The citation of the witnesses and experts, and other persons not parties to the action, when to be made officially, shall be made by a bailiff (alyuacil). For this purpose the clerk shall prepare duplicate writs, and the bailiff shall deliver one copy to the person cited, who shall sign his receipt on the other copy, which shall be attached to the record. These citations may also be made by means of an official communication when the judge considers it advisable. ART. 274. The writ of summons shall contain all the statements mentioned in numbers 1, 2, 3, and 5 of article 272, and shall contain in addition a statement of the period within which the person cited is to appear, and the superior or inferior court before whom said appearance shall be made.1 ART. 275. Requisitions shall be served by the delivery of a notice upon the person interested of the order in which it is made, in the form prescribed; the clerk shall make an entry in the proceeding stating that the requisition has been served as ordered. ART. 276. No answer of the person interested shall be allowed nor stated in notifications, citations, and summonses, unless required in the order of the court. In the case of requisitions the answer made by the person requested shall be allowed and succinctly entered in the proceeding. ART. 277. If the citation or summons is to be made by means of letters rogatory or letters mandatory, the proper writ shall be attached thereto. 1Court clerks who do not comply with the prescriptions of this article shall be disciplined, incurring a fine of from 25 to 50 pesetas.-Dision of 2May 20, 1886. 56

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LAW OF CIVIt PROCEDURE. ART. 278. The writs for notifications, citations, and summons shall be written on ordinary paper. ART. 279. All notifications, citations, and summonses not made in accordance with the provisions contained in this section shall be null. Nevertheless, when the person notified, summoned, or cited shall have obeyed the same in the action, the proceeding shall from that time have the same effect as if said service had been made in accordance with the provisions of law. The clerk shall not be relieved thereby from the disciplinary correction prescribed in the following article:I ART. 280. The assistant or subaltern official who shall delay discharging the duties intrusted to him in this section, or should neglect to comply with any of the formalities established in the same, shall be disciplinarily corrected by the judge or court in whose service he-may be, with a fine of from 65 to 125 pesetas. He shall furthermore be liable for any damages or costs which may have been caused by his neglect. SECTIoN IV.-&rv ice of notifications in the court room. ART. 281. In all actions and proceedings in which a litigant shall place himself or be declared in default for not appearing in the action after he has been formally cited, no further effort shall be made to secure his appearance. All orders thereafter made in the action, and all citations and summonses which are thereafter to be served upon him, shall be served within the limits of the court room, except in such cases as is otherwise provided for. ART. 282. The notifications, citations, and summonses referred to in the foregoing article shall be served by reading the orders which are to be served, or those ordering the citation to be made, at a public session of the judge or court issuing the same, and in the presence of two witnesses, who shall sign, the proceeding which shall be attached to the record and authenticated by the court clerk. ART. 283. The judgments and rulings of which notice is given within the limits of the court room and the writs of citations and summons to be served in the same, shall also be published by means of edicts, which shall be posted at the door of the place where the sessions of the judge or court are held, a statement thereof also being made in the proceedings. 'Articles 279, 292, 295, 306, 314, 317, and 327 of this law refer to the order of the proceedings, and even though it should be violated it does not give rise to an appeal. Decision of February 3, 1883. As soon as the plaintiffs enter an appearance in an action, any broach of form in their citation is corrected, without prejudice to the disciplinary correction of the proper party.-Decision of December 17, 1886. 57

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LAW OF CIVIL PROCEDURE. The adjudging part of definite judgments shall also be published in the official newspapers in the cases and in the manner prescribed by law. In such a case a copy of the newspaper in which the publication was made shall be attached to the record. SECTION V.-Letters requisitorial, letters rogatory, letters mandatory, and mandates. ART. 284. Judges and courts shall aid each other in the execution of all proceedings necessary and ordered in civil actions. ART. 285. When a judicial order is to be executed other than at the place of trial of the action, or by a court or judge other than the one making the order, the latter shall commit the execution thereof to the proper person by means of letters requisitorial, letters rogatory, or letters mandatory. Letters requisitorial shall be used when he applies to a court or judge higher in degree; letters rogatory when said execution is directed to one of equal degree, and letters mandatory when directed to a subordinate court or judge. ART. 286. The provisions of the foregoing article shall be understood without prejudice to the right of judges of first instance to go to any place.or town within their judicial district, for the purpose of executing their judicial orders (diligencias) in person, if they deem it advisable. ART. 287. The judge or court which shall have ordered the execution of a judicial proceeding, can not address for this purpose judges or courts of a category or degree lower, who are not his subordinates, but he must deal directly with such of their superiors as exercise a degree of jurisdiction equal to his own. ART. 288. A mandate shall be employed for the purpose of ordering the issue of certificates, or transcripts, or the fulfillment of any judicial order, the execution of which is imposed upon registrars of property, notaries, assistants, or subordinate officials of inferior or superior courts. ART. 289. When judges or courts are obliged to direct requests to authorities or officials of another department, they shall do so by official communications or statements, as the case may require. ART. 290. Letters rogatory and other letters shall be received by the superior or inferior court to which the request is addressed, without requiring the exhibition of a power of attorney of the person presenting the same, nor shall he be allowed to present any writing with said requests, unless it should be indispensable to do so for the purpose of giving explanations or information to facilitate their execution. The proper clerk shall draft a statement at the end of the letters 58

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LAW OF CIVIL' PROCEDURE. rogatory or other letters, stating the date of their presentation and A the person presenting the same, to whom he shall give a receipt; both shall sign this memorandum, and information thereof shall be given to the court or judge on the same day, and if this were not possible, on the next legal working day. ART. 291. Letters rogatory and the other letters aforementioned, shall be delivered to the party at whose request they were issued, in order that he may superintend their execution. If the opposite party requires it, a time shall be set for their presentation to the person to whom they are to be transmitted. ART. 292. The person requesting letters rogatory or other letters, shall be obliged to furnish the stamped paper necessary, and shall pay the costs that may be incurred in their execution. ART. 293. The provisions contained in the three preceding articles are not applicable to letters rogatory and other letters issued at the court's own motion (de oftcio) or at the instance of a poor person. A receipt shall be given to the judge issuing said letters rogatory or other letters, and the action or proceedings requested shall also be performed officially and drafted upon official stamped paper. ART. 294. The requesting judge may directly forward to the judge upon whom the request is made, letters rogatory issued at the instance of a well-to-do party, when the latter should request it, by reason of not having sufficient acquaintance at the place where the request is to be complied with. In such cases said party must furnish the stamped paper which may be considered necessary for securing the information required, which shall be forwarded with the letters rogatory; he shall pay the postage and registration charges, and also all the expenses incurred in the compliance therewith, as soon as the bill therefor is received, as well as any other costs which may be incurred in enforcing payment by compulsory process, which shall be resorted to for their recovery, if said payments are not made within eight days. All these facts shall be stated in the communication accompanying the request, and the judge of whom the request is made, shall cause the request to be complied with without delay.1 ART. 295. The judge or court who shall receive, or to whom are presented, letters requisitorial, letters rogatory, or letters mandatory, in proper form, if his own competency should not be affected thereby, shall order what may be proper for the execution of the request made therein, within the period fixed in the letters themselves, or otherwise, as soon as possible. 1 When a judge, in complying with the request of another, exceeds the instructions received, his action does not produce any legal effect whatsoever, because he took the same without having jurisdiction.-Deiion of June 6, 1886. 59

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LAW OF CIVIL PROCEDURE. After the commission has been fulfilled, the letters shall be returned to the requesting party through the same channels by which they were received. ART. 296. When the judge upon whom the request is made shall be unable to fulfill personally, either in whole or in part, the commisA sions entrusted to him, he may delegate the same to an inferior judge subordinate to him, by transmitting the original letters, or a communication containing all necessary statements, if he were obliged to retain the former for the performance of other proceedings which it should be necessary to undertake simultaneously. ART. 297. The judge upon whom the request is made may also order that the letters rogatory be forwarded to another court, without returning them to the requesting judge, when he can not comply with said request for the reason that the person with whom the judicial proceedings are to be had, is in another jurisdiction. ART. 298. The bearer of letters rogatory, letters requisitorial, or letters mandatory shall not be informed of the orders issued for the execution thereof, except in the following cases: 1. When it is requested in the said letters that some proceedings be had with the citation, intervention, or attendance of the person who may have presented the same. 2. When it is necessary to summon him to furnish some data or information which may. facilitate the execution of the request.1 ART. 299. When the execution of letters rogatory or letters requisitorial shall be delayed, attention shall be called thereto by means of an official communication, transmitted at the instance of the party interested. If, notwithstanding the communication, the delay continues, the requesting judge shall inform the immediate superior of the judge requested thereof, by means of letters requisitorial, and said superior shall impose a disciplinary correction upon the tardy judge, without prejudice to the greater liability which he may incur. The same means shall be employed by the person issuing a request or letters mandatory to compel his tardy inferior to return the same fully executed. ART. 300. When service of summons is to. be made or any other judicial proceeding is to be performed in a foreign country, the letters rogatory shall be transmitted through diplomatic channels, or by the means and in the manner prescribed in treaties, and in the absence of treaties, as prescribed in the general provisions of the supreme government. In any case, principles of reciprocity shall be observed. 1Only in the two cases mentioned shall the hearer of letters rogatory, not a party to the proceedings, be informed of the orders issued for the fulfillment thereof,-.Deciions qf fanuary 8, february 1 and 6, 1886, C 60

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LAW OF CIVIL PROCEDURE. The same rules shall be observed for the execution in the islands of Cuba and Porto Rico of the letters rogatory of foreign courts, requiring the performance of some judicial proceeding. SECTION VI.-JUddicial periods of time, compulsoryproe.ss, and defaults. ART. 301. Judicial acts and proceedings shall take place within the period fixed for each of them. When no time is fixed, it shall be understood that they are to take place without delay. Any violation of the provisions of this article shall be disciplinarily corrected, according to the gravity of the case, without prejudice to the right of the party injured to demand any indemnity which may be proper for damages or other liabilities.2 ART. 302. Judges and courts shall, in a proper case, impose said disciplinary correction upon their assistants and subalterns without the necessity of said correction being requested by a party, and should they not do so, they shall in their turn incur liability. Judges and courts shall also impose said correction upon their subordinates, when the matter in which said violation has been committed has been brought before them on appeal, or in any other manner, or when proper complaint has been made by any of the litigants. ART. 303. Judicial periods of time shall commence on the day following the service of a summons, citation, or notification, and the last day of said period shall be counted.8 ART. 304. In no period of time designated by days, shall days be counted upon which judicial proceedings can not be taken. Neither shall the days of the summer recess be counted in the period of time within which to take an appeal to the supreme court for annulment of judgment for breach of law, unless actions of unlawful detainer are in question, or proceedings of voluntary jurisdiction, or any other 'By royal order of March 9, 1888, it is prescribed that no letters rogatory or letters requisitorial shall be directed to foreign countries in civil matters, unless the person interested shall previously deposit in the central treasury an amount considered sufficient, in the judgment of the presiding judge of the audiencia, to cover the costs of the service and all other expenses which may arise in the matter. Letters rogatory must be addressed to the foreign judges who are to execute them, and it is forbidden to forward them to the consuls, legations, or diplomatic representatives in the country where they are to be executed. In letters rogatory of this character, it is prescribed that the clause offering reciprocity for the execution in Spain of similar requests be not omitted. 'Judicial periods of time are binding upon the parties, whatever be the judicial character of the litigant, even though he be the representative of the State.-Decision of May 24, 1887. These days are and must be understood as natural days, including the twentyfour hours from midnight to midnight, so that on the day of the expiration of a period instruments may be filed until twelve o'clock midnight.-Decision of December 12, 1861. h1

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LAW OF CIVIL PROCEDURE. urgent matters which may be decided in the vacations chamber (sala de vscaciones). ART. 305. Periods of time designated by months shall be counted by natural months, without excluding illegal working days. In such cases, if the period should terminate on a Sunday or other holiday, it shall be understood as extended to the following legal working day. ART. 306. Periods of time, the extension of which is not expressly forbidden by this law, may be extended. In order to grant an extension it is necessary1. That it be requested before the expiration of the period. 2. That good cause be shown therefor, to the satisfaction of the judge or court, without there being any remedy against his decision on the subject. ART. 307. Not more than one extension can be demanded or granted; said extension may be granted for the period of time which the judge or court may consider reasonable, but in rio case shall it exceed onehalf that fixed by law for the term extended. ART. 308. After the extendible periods, or the extension granted at a proper time, has elapsed, if the records be in the clerk's office, the provisions contained in article 520 shall be observed. If the records should be in the possession of any of the parties, as soon as they are requested by the opposite party, the former shall be ordered to return them within twenty-four hours, under a penalty of not less than 25 nor more than 65 pesetas for every day upon which he shall fail to so return them. This fine shall be imposed personally upon the solicitor, if one should take part in the case, unless he shall prove his blamelessness. If three days should elapse without the records being returned, the clerk shall, under his liability and without requiring a new order, proceed to recover them of the person in whose possession they may be; and if they should not at once be delivered to him upon demand, he shall inform the judge or court, so that an order may be issued for such proceedings to be instituted as are proper for concealment of process. ART. 309. More than one writ for compulsory process shall not be allowed. The costs thereof and of the other proceedings until the return of the records, shall in every case be on the account of the person against whom said process is issued. ART. 310. The periods fixed for the following can not be extended: 1. For appearance in an action. 1 For the purpose of taking an appeal for annulment of judgment the days of the summer recess are counted in proceedings of voluntary jurisdiction.-Decision of Nvenber 11, 1889. Periods which can le extended which elapse before an extension has been applied for, become final.-Decision of December 10, 1864. 62

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LAW OF CIVIL PROCEDURE. 2. For the takingof dilatory exceptions. 3. For motions for a rehearing, appeals or petitions for modification or revocation of judgment (recurso de splica), and for the preparation and interposition of the remedy of complaint against the refusal to allow an appeal. 4. To request the elucidation of some judgment, or to supply an omission therein. 5. For an appellant to appear before the superior court in obedience to the summons served in consequence of the admission of an appeal. 6. To appear before the superior court with the proper proof, for the purpose of enlarging an appeal allowed for a review of the proceedings (en '?tn efecto). 7. To request a certificate of judgment for the purpose of taking an appeal for annulment of judgment, for breach of law or of legal doetrine, and to prepare it for presentation before the Supreme Court. 8. To take an appeal for annulment of judgment for breach of form. 9. To appear before the Supreme Court in consequence of the allowance of the appeal for annullment of judgment, or for interposing the remedy of complaint against the order by which the granting of a certificate of the judgment is denied, or the appeal disallowed. 10. In any other matter with regard to which there may be a clear and express declaration, to the effect that after a certain time has elapsed, no action, exception, remedy, or rights upon which the same are based, be litigated. ART. 311. Periods of time which can not be extended, can not be suspended nor reopened by restoration or otherwise, after the expiration thereof. Said periods of time can only be suspended during their course by reason of force majeure which prevents their utilization. ART. 312. After periods of time which cannot be extended have elapsed, the proceeding or remedy which could have been advanced, shall be considered as lapsed and forfeited by law, without the neces'If an action is brought against a municipality, and if the mayor is cited and summoned and should not enter an appearance, and a judgment is rendered in his absence and default, against the municipality, the latter has the benefit of restitution in integrum, the defence having been abandoned without article 311 of the law of civil procedure being opposed thereto.-Decision of Jne 11, 1883. Restitution in integrum for damages caused to minors is not of those included in this article.-Decisions of January 31, 188, and une 2, 1886. The law of civil procedure does not establish any differences between colitigants, because the periods of time within which to appeal from orders, etc., can not be extended for any reason whatsoever, and can not be suspended after their termination by way of restitution nor for any other reason. The department of public prosecution is subject to the provisions of said articles.-Decision of iMiay 21, 1870. Restitution in integruma is not recognized in the Civil Code. (See articles 1299 and 1301.) 68

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LAW OV CIVIL PROCEDURE. sity of compulsory process nor of entry of default, except in the case referred to in number 1 of article 310. No petition or claim of any kind shall be admitted which conflicts with this provision, and if it should become necessary to recover the record in order to properly continue the proceedings, the procedure established in article 308 shall be followed. TITLE VII. DISPATCH, HEARING, VOTING UPON AND DECISION OF JUDICIAL MATTERS. SECTION I. Ordinary dispatch and hearing. ART. 313. Proceedings for the taking of evidence and the hearing of actions and other judicial matters, shall be held in open court. The ordinary dispatch of business shall also be publicly performed when requested by one of the parties. ART. 314. Notwithstanding the provisions contained in the foregoing article, judges and courts may order, at their own instance or at the instance of a party, that the dispatch and hearing of matters be had behind closed doors, when so required by good order or good morals. If this action is to be taken at the beginning of the hearing, after hearing the parties briefly thereupon, the court shall immediately decide what it may deem proper. There shall be no remedy whatsoever against a decision on this point. ART. 315. Secretaries and clerks shall, in the ordinary dispatch of business, make a verbal report on the same day on which instruments are presented or the decisions rendered, and should this not be possible, on the day following. ART. 316. Orders for proceeding in a matter shall be issued at the time a report is made thereon, or within the two days following, at the utmost. In audiencias, only in cases where a decision has to contain a statement of the reason for its rendition, or when there is necessity of examining data for the purpose of rendering it, can the respective chamber order that a report be made thereon by a relator. AnT. 317. Chambers shall meet with at least three and not more than five justices for the ordinary dispatch of business and for the decision of incidental issues. An agreement can only be reached by an absolute majority of votes. ART. 318. Judges of first instance shall personally examine the causes and proceedings, before rendering decisions and rulings. In an audiencia a report shall be made by the clerk of the chamber or by the relator, in a proper case, who shall prepare the proper brief when prescribed by law. 64

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LAW OF CIVIL PROCEDURE. ART. 319. The relator shall state, at the end of the brief, under his personal liability, whether or not in the previous proceedings the prescriptions of this law with regard to periods of time and continuances, compulsory process, recovery of the record, and others relating to the order and form of procedure, have been observed, as well as whether or not unnecessary or unauthorized acts have been performed, and shall make a note of all defects or omissions which may appear, or state, otherwise, that the legal prescriptions have been observed in the procedure in the cause. ART. 320. The relator shall make the briefs, strictly observing the the regular order in which they were ordered made. They shall only give preference to the matters mentioned in the following article. ART. 321. Hearings of actions and incidental issues shall be set in the order in which they are at issue, and without the necessity of a request of the parties therefor. From the foregoing are excepted proceedings for temporary maintenance, questions of competency, proceedings for consolidation, challenges, matters of unlawful detainer, summary proceedings relating to property, proceedings for the custody of persons, actions of lesser import and executory actions, denials of justice or of proof, and other matters which, by provision of law or by an order of the chamber, are to be preferred for very special reasons, and the hearing of which, after they are at issue, shall be set ahead of other matters T which may be unset at the time. It shall be the duty of the presiding judge of the chamber to set matters for hearing. ART. 322. All actions shall be heard on the day set therefor. If at the end of the hours set for hearing some matter, it should not be concluded, it may be suspended and continued to the following day or days, unless the presiding judge shall extend the time therefor. ART. 323. The hearing of an action on the day set therefor can only be suspended in the following cases: 1. When the continuation of another cause from the preceding day shall prevent it. 2. On account of there not being a sufficient number of justices to render judgment. 3. On account of the death or cessation in the action of the solicitor of any of the parties. 4. By reason of the death of any of the litigants. 5. When a unanimous request is made therefor by the solicitors of the parties, alleging good cause in the judgment of the court. 6. On account of the illness of the attorney of the party requesting the suspension sufficiently proven to the satisfaction of the chamber, provided that said request be made 48 hours previous to that set for the hearing, unless the illness should have occurred after this period. 5001-5 65

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LAW OF CIVIL PROCEDURE, 7. On account of the death of the spouse., or of any of the ascendants or descendants of an attorney in the action, occurring before the nine days prior to that set for the hearing. 8. When an attorney in the action is required to attend two hearings on the same day before different courts, which fact shall be properly proven, in which case the superior court shall have preference over the inferior one. ART. 324. In the case of a suspension of a hearing, another day shall be set as soon as the reason for the suspension shall have disappeared, without altering the order of hearings already set. ArT. 325. For the hearings of causes or incidental issues, the chambers shall meet with the number of justices necessary to render judgment in the matter involved. ART. 326. When it shall become necessary to make up the number of justices of a chamber, with justices from another, or with substitutes, before the commencement of the hearing the names of those designated shall be communicated to the solicitors of the parties, and the hearing shall at once be proceeded with, unless any of the justices shall at that tine be challenged, even though verbally. In such case the hearing shall be suspended, and the challenge being reduced to writing and presented before the third day, this issue shall be heard and determined in the manner prescribed. If the challenge should not be presented within said period, it shall not be admitted, and the challenging party shall be fined the amount prescribed in article 212, and shall be taxed the costs of the suspension, a new day being set for the hearing of the cause as soon as possible. ART. 327. In the case of the first paragraph of the foregoing article, if the hearing shall have been had on account of no challenge having been interposed, the voting for judgment shall be suspended for three days. The substitute justices may be challenged during this period, and after said period has elapsed, without a challenge having been interposed, the time for the rendition of judgment shall immediately commence to run. ART. 328. If the challenge should be interposed within said period, and allowed, the hearing shall be vacated and it shall be had anew before competent justices, at the earliest day which can be set. If the challenge be disallowed, the justices who attended the hearing shall render judgment, the period within which to render it beginning on the day following the decision upon the challenge. ART. 329. If, after the beginning of the hearing of a cause, one or more of the justices shall fall ill or become otherwise unable to continue attending the same, and there should be no probability that the said justice or justices will be able to attend within a few days, a new hearing shall be had, the number of justices being filled from among those who should substitute those disabled. 66

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LAW OF CIVIL PROCEDURE. If, notwithstanding the disability of one or more justices, a sufficient number shall remain to render judgment, a suspension shall not be necessary, nor a new hearing, in a proper case. ART. 330. Hearings shall begin with the reading of the brief made by the relator; and in cases in which no brief has been made, with a succinct statement made by the said relator, or by the recording clerk of the chamber, of all matters tending to furnish information on the question at issue, when the law does not provide otherwise, after which the attorneys for the parties appearing thereat shall present their arguments in their order. The latter may make a second argument, with the consent of the presiding judge, for the purposes of correcting facts or statements. The hearing shall be considered as ended when the presiding judge pronounces the word "heard." ART. 331. Parties to the action may, with the consent of the presiding judge, verbally state what they may deem proper for their defense at the conclusion of the hearing and before it is declared closed, or when any petition is presented on their behalf. The presiding judge shall allow them to speak, as long as they confine themselves to the questions at issue and observe the proper respect. ART. 332. The presiding judge shall call to order'any attorney who clearly strays from the question at issue in his argument, or who loses time with impertinent and unnecessary arguments; and if he shall persist therein after having been admonished twice, permission to speak may be withdrawn from him. ART. 333. It is the duty of the justice presiding at the hearing, assisted by the chamber, in a proper case, to preserve good order and to require that the respect and consideration due the court be maintained, at once correcting any offenses which may be committed, in the manner prescribed in title 13 of this book. ART. 334. The hearing shall be entered upon the record by means of statements drafted by the relator or clerk of the chamber, stating the names of the justices composing the chamber, the names of the attorneys making the arguments, of the solicitors who may have attended, and the time consumed at said hearing. If any of the attorneys for 'the parties shall raise any collateral matter at the hearing which requires a decision, it shall also be included in said statement, which shall be read, in such case, to the attorneys at the conclusion of the hearing, for their approval and signatures. SECTION II.-Jut88?C ") OOlftm ." AR. 335. A justice "ponente" shall be selected for each cause, all the justices of the chamber being selected for these duties in their turn, with the exception of the presiding judge thereof. 67

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LAW OF CIVIL PROCEDURE. The presiding judge shall, nevertheless, also undertake said duties in his turn when for any reason whatsoever the number of justices of a chamber, including the presiding judge, should be reduced to three. ART. 336. It shall be the duty of the ponente1. To report to the chamber with reference to the propriety of naking any amendments in, or additions to, the abstract requested by the litigants. The records shall previously be delivered to the litigants for this purpose. 2. To examine and classify as to the pertinency of all interrogatories, depositions, and proposals of evidence submitted by the parties. Should any objections be made to the classification, it shall be decided by the chamber. 3. To preside at the presentation of all evidence and to receive any declarations which the chamber may order, without prejudice to the provisions of article 254. 4. To authenticate the ratifications and to make the appointments for the performance of every duty. 5. To verbally submit to the deliberation of the chamber all findings of fact and conclusions of law, and the decision which, in his judgment, should be rendered, but without making a draft thereof. 6. To draft the rulings and judgments agreed upon by the chambers, even though his vote has not been in accordance with that of the majority. In such case, the presiding judge of the chamber may intrust the drafting of the judgment to another justice, if he considers it advisable by reason of special circumstances. 7. To read the judgment in open court. Should he not be present in the chamber on the day the judgment is to be read, the presiding judge shall act in his place. 8. Any other duties which may be intrusted to the ponente by a special provision of law. ART. 337. It shall also be the duty of the justice ponente to investigate whether legal formalities have been observed; whether or not instruments for which this law prescribes precise forms have been drafted in accordance thereto, or whether other abuses have been committed, either of commission or of omission, in the proceedings of the action, verifying those noted by the relator; and if there exists a mistake which should be corrected, he shall call the attention of the chamber thereto, in order that it may definitely determine what it may deem proper, for the purpose of correcting the same and to procure a punctual and strict observance of this law, in letter as well as in spirit, by all officials taking part in actions. 68

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LAW OF CIVIL PROCEDURE. 69 r SECTION lI.-VOting and decision s in action ART. 338. After a hearing in a cause has been closed, any of the justices may demand the record for the purpose of making a private examination thereof. When several justices request said record, the one presiding shall designate the period of time that each may retain the same, in order that judgment may be rendered within the time fixed therefor. ART. 339. With the exception of the case referred to in the foregoing article, rulings and judgments shall be discussed and voted upon immediately after the hearing; and if this be not possible on account ;. of other requirements of the service, the presiding judge shall set a day therefor, within the periods respectively fixed by law. ART. 340. After the hearing, or after the citation for judgment, and before the rendition of judgment, judges and courts may order, in furtherance of justice: 1. That any document which they may deem necessary for the purpose of properly elucidating the rights of the litigants be brought before them. 2. Demand a judicial confession of any of the litigants of any facts which they may consider of importance in the question at issue, and which have not been proved. 3. That any investigation or appraisement be made that they may consider necessary, or that those already made be enlarged. 4. That any records which bear any relation to the action be brought before them. There shall be no remedy whatsoever against orders of this character, and the parties shall not have any intervention therein, except that granted them by the court.' 1The parties have no right to intervene in an act, the only object of which is to ascertain or explain some matter to the satisfaction of the judges.-Decision of December 11, 1865. Orders in furtherance of justice are not issues such as are recognized by the law of civil procedure, nor are the parties given any other intervention therein, than that specifically designated in the order itself.-Decision of April 9, 1866. Proceedings for the furtherance of justice are not instituted for private interests, but for a better administration of justice. Their admission, therefore, is to be passed upon by the court without affecting any right of the parties litigant.-Decision of -March 19, 1869. Judges may also order the examination of documents in the furtherance of justice.-Decision of June 28, 1892. The absence of a citation of the parties to attend proceedings instituted for the furtherance of justice, does not constitute a breach of form, because the parties have no other intervention therein than that expressly granted them by the judge or court.-Decision of July 8, 1885.

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LAW OF CIVIL PROCEDURE. ART. 341. The period within which the proceedings for the furtherance of justice shall be performed, shall be fixed in the said order, and if it be not possible to determine it, the judge or chamber shall see that said proceedings are executed without delay and shall, on his or its own motion, issue the reminders and compulsory process which may be required. ART. 342. In such cases, the period within which judgment is to be rendered shall be suspended from the date of the order issued in furtherance of justice until it has been fulfilled, after which and during the remaining time, the proper ruling or judgment shall be rendered without a rehearing. ART. 343. The discussion and voting for judgments and rulings shall always be held behind closed doors, and before or after the hours designated for the ordinary dispatch of business and for hearings. After the voting has begun, it can not be interrupted except for an insuperable cause. ART. 344. The ponente shall submit to the chamber for its deliberation, all questions of fact and of law and the decision to be included in the judgment, and the voting shall take place after the necessary discussion. ART. 345. The ponente shall vote first, and afterwards the other justices in the inverse order of their seniority with regard to length of service. The presiding judge shall vote last. ART. 346. When any justice should be transferred, retired, removed, or suspended, he shall vote upon all actions, the hearing of which he may have attended, and which have not as yet been decided. ART. 347. If, after the hearing, any justice shall become disabled, to such an extent that he can not attend the voting, he shall give his vote in writing, properly based and signed, and shall forward it directly, under closed cover, to the presiding judge of the chamber. If he be not able to write or sign, he shall be assisted by the relator in the action. The vote thus cast shall be attached to the others, and shall be preserved, together with the book of judgments, by the presiding judge and rubricated by him. If said disabled justice should be unable to vote even in this manner, the voting in the action shall be done by the other justices who may have attended the hearing, should there be a sufficient number to form a majority. Otherwise, a new hearing shall be had with the presence of those who may have attended the former hearing, and with the justice or justices who are to replace those disabled. ART. 348. Three concurring votes are necessary for the rendition of judgments by audiencias. If the decision is to be rendered in the form of a ruling (auto), the votes of an absolute majority of the justices who shall have attended the hearing shall be necessary. 70

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LAW OF CIVIL PROCEDURE. 71 ART. 349. If there be a disagreement by reason of the absence of a sufficient number of votes to render judgment, it shall be adjusted in the manner prescribed in the following section. SECTION IV.-.-ianner of adjusting disagreements. ART. 350. If, in voting upon a judgment, ruling, or order of mere practice, there should not be a majority of votes upon any findings of fact or conclusions of law to be made, or upon the decision to be rendered, the discussion and voting upon the points not agreed upon shall be repeated. If there should be no majority at the second voting, an order shall be made declaring a disagreement and ordering a new hearing before an increased number of justices. ART. 351. The new hearing shall be held before the same justices who attended the previous one, and two additional ones, if there were an odd number of dissenting justices, and three, if the number were even. ART. 352. The following shall attend, in the order given, for the purpose of adjusting disagreements: 1. The presiding judge of the court. 2. The associate justices of the respective chamber who have not heard the action. 3. The senior justices in length of service of the other chambers, with the exception of the presiding judges thereof. ART. 353. The presiding judge of the court shall set the time for the hearing of mattersupon which there has been a disagreement, after receiving notice thereof from the presiding judge of the proper chamber, and after designating the justices who are to adjust said disagreement. ART. 354. The names of the justices who are to adjust the disagreements, shall be made known to the litigants in due time, in order that they may allege their rights of challenge, if proper. ART. 355. The disagreeing justices shall state with clearness, in the order declaring the disagreement, the points on which they agree and those upon which they disagree, and shall confine themselves to deciding such questions, with the justices adjusting the disagreement, upon which no agreement has been reached. ART. 356. Before commencing to hear an action upon which there has been a disagreement, the presiding judge of the chamber who is to adjust said disagreement shall ask the disagreeing justices whether they insist in their opinions, and only in case of an affirmative answer shall the hearing be continued. If, upon voting on a judgment disagreed upon, the disagreeing justices should come to an agreement in sufficient number to form a majority, the proceedings shall not be continued.

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LAW OF CIVIL PROCEDURE. ART. 357. If, upon voting on a judgment by a chamber sitting to adjust a disagreement, there should not be a majority upon the points disagreed upon, a new vote shall be taken, but only upon the two opinions which obtained the greater number of votes at the preceding one. TITLE VIII. MANNER AND FORM IN WHICH JUDICIAL DECISIONS SHALL BE RENDERED. SECTION I.-JGdyqlle2n8. ART. 358. Judgments must be clear, precise, and congruent to the pleadings and other allegations duly advanced in the action, and shall contain the declarations required by the latter, deciding for or against the defendant -all questions which have been the object of the arguments.' If there should be several issues, the decisions pertaining to each shall be separately rendered.2 ART. 359. If there should be an adjudication of profits, interests, losses, or damages, the net amount thereof shall be determined or the bases shall be fixed according to which the liquidation is to be made. Only in cases in which it is impossible to do either, shall an adjudication be made, reserving the right to fix the amount thereof and its enforcement in the execution of the judgment. ART. 360. Judges and courts can not, under any pretext whatsoever, postpone, delay, or refuse to decide questions discussed in the action.' 'A judgment is congruent to the pleadings when it grants the support mentioned in article 1100 of this law, even though the plaintiff should call the same provisional or temporary, if it be clearly deduced from the terms and bases of the petition that the support mentioned in said article is referred to, and not the maintenance included in articles 1609 et seq.-Decision of December 24, 1888. 2A judgment which grants less than is requested is not incongruent.-Decision of January 4, 1887. A judgment which, in revoking a ruling appealed from, does not decide as to the delivery of certain estates, etc., relating to the estate of a deceased person, which questions had been decided by the lower court and had been the subject-matter of the express petition of the party taking the appeal, violates the provisions of this article.-Decision of January 14, 1884. a Art. 360 of the law of civil procedure presupposes as a fundamental basis for the adjudication of losses and damages, the legal proof of their existence, and, therefore, a chamber which condemns the defendant to pay the losses and damages which may have been caused to the estates, the subject of the litigation, etc., violates the provisions of this article, because the judgment is uncertain.-Decision of January 4, 1887. 4A judgment which reserves for another action the decision of one of the questions raised in the action, violates this provision, as does also the judgment which reserves to the plaintiff the right which may pertain to him.-Decisions of July 9, 1886, and December 18, 1868.

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LAW OF CIVIL' PROCEDURE. ART. 361. Notwithstanding the provisions of the foregoing article, courts and judges, when they are to base their judgment exclusively upon the purported commission.of a crime, shall suspend the decision of the action, until the termination of the criminal proceedings, if, after hearing the department of public prosecution, they should consider the institution of a criminal action proper. The order of suspension may be appealed from for review and for a stay of proceedings.' ART. 362. Neither shall judges nor courts be permitted to change or modify their judgments after they are signed, but they may elucidate any obscure point or' supply any omission they may contain, upon a point discussed in the action.2 These elucidations or additions may be made, on the court's own motion, on or before the legal working day following the publication of the judgment, or, at the instance of a party, on or before the day following the notification. In the latter case, the judge or court shall decide what may be considered proper, on or before the day following the presentation of the instrument requesting the elucidation.' ArT. 363. In inferior courts the judgments shall be drafted by the judge who renders the same, who, after entering them upon the record, shall sign and read them in open court, the clerk or secretary authenticating their publication. ART. 364. In the supreme court and in audiencias, after the judgment has been prepared by the ponente, in accordance with the pro'In order to consider a document false, it is necessary that a clear and express declaration of its falsity be made in the judgment.-Decision of Miarch 6, 1861. 2 The elucidation of a judgment rendered by a court, having been requested because nothing was provided therein relating to the reconvention made in the action, the judge supplemented the judgment absolving the plaintiff therefrom and allowing the appeal taken. After the record had been transmitted to the higher court a judgment was rendered confirming that appealed from, with costs. The appellant also demanded an elucidation with regard to the reconvention, but the chamber declared that an elucidation was not necessary, because the elucidation ordered by the court had not been the object of the appeal. An appeal for annulment of judgment having been taken, the supreme court decided that the explanations or additions which courts make in their judgments, in view of the privilege granted them by article 362 of the law of civil procedure, constitute part of the judgment itself, and the appeals taken are considered to embrace said additions or explanations, for which reason the adjudging chamber in this case should not have refused to render judgment on the question of the reconvention, added to its judgment by the judge of first instance, and this question not having been decided, it is evident that article 358, invoked by the appellant, has been violated.-Decision of November 17, 1887. 2The correction of an arithmetical error does not constitute a real change in the judgment, and still less so, when it was requested and made within the legal period.Decision of November 6, 1884. The elucidations or additions made by courts in judgments, constitute a portion of said judgments, and appeals taken by the parties are understood to include said additions or elucidations.-Decision of November 17, 1887. 73

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LAW OF CIVIL PROCEDURE. visions of number 6 of article 336, and after having been approved by the chamber, it shall be drafted on official stamped paper and signed by all the justices who may have rendered it; shall be read in open court by the ponente, and in his absence, by the presiding judge of the chamber, the publication thereof being authenticated by the proper secretary or clerk of the chamber. The latter shall enter in the record a literal certified copy of the judgment and of the fact of its publication, countersigned or viseed by the presiding judge of the chamber, who shall recover and keep the original for the purpose of forming the register of judgments, in the manner prescribed in the regulations or in special provisions. ART. 365. If, after an action has been decided by a court, one of the justices who voted at said decision should become unable to sign, the one who presided in the chamber shall do so for him, stating the name of the justice for whom he signs and playing thereafter the words: Voted in chamber, but was unable to sign. ART. 366. Every justice taking part in the voting for a judgment, shall sign the decision agreed upon, even though he shall have dissented from the majority; but he may, in such case, explain his vote, writing, basing, and inserting it with his signature at the bottom, within the twenty-four hours following, in the book of reserved votes L (votos reservados). ART. 367. Private reserved votes shall not be inserted in the certificates of the judgments, but must be forwarded to the supreme court in the cases prescribed, and. always when the record is transmitted to the same. They shall be made public when an appeal for annullment of judgment is taken and allowed. SECTION II.-_Torm in which judicial resolutions s/tail be rendered. ART. 368. The resolutions of superior and inferior courts in matters of a judicial character shall be calledProvidencias,' when they are of mere practice. Autos (rulings), when deciding incidental issues or points which determine the disputed personality of any of the parties, the competency of the inferior or superior court, the allowance or disallowance of a challenge, the striking out of a complaint, the allowance or disallowance of exceptions, the refusal to admit a counterclaim, the refusal to admit evidence or any proceeding therefor, those which may. cause irreparable injury to the parties, and others deciding any other incidental matter, when it is not prescribed that a judgment by rendered thereon. Sentencias (judgments), when finally deciding the questions at issue in an action in one instance, or in an extraordinary remedy; or when 1This has been translated Orders" or Orders qf mere practice." 74

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LAW OF CIVIL PROCEDURE. in deciding an incidental issue, it puts an end to 'the main issue which was the object of the action, making the continuation thereof impossible, and decisions which allow or refuse to allow a litigant to be heard, after he has been declared in default. Final judgments, when, by their nature or by agreement of the parties, there should be no ordinary or extraordinary remedy against them. Feoutoria, the public and formal instrument in which a final judgment is entered for enforcement. ART. 369. The formula for orders of mere practice shall be limited to the order of the judge or court, without any bases or additions other than the date thereof and the name of the judge or chamber issuing the same. ART. 370. The formula for rulings (autos) shall be based upon resultandos and considerando both concrete and confined to the particular question decided, the name of the judge or court deciding the same, and the place and date upon which the decision was made. ART. 371. Final judgments shall be drafted as follows: 1. The place, date, and judge or court rendering the same, the names, domicile, and profession of the parties litigant, and the character in which they litigate, the names of their attorneys and solicitors, and the object of the action. There shall also be stated, in a proper case, and before the considerandos," the name of the justice ponente. 2. In separate paragraphs, which shall begin with the word resultando there shall be clearly and concisely stated the contentions of the parties, and the facts that have been properly alleged and on which the same are based and which are connected with the questions to be decided. In the last resultando, there shall be stated whether the provisions of law have been observed in the course of the proceedings, and stating, in a proper case, the defects or omissions that may have been committed. 3. The points of law alleged by the parties shall also be considered in separate paragraphs,.beginning with the word coniderando, giving the reasons and legal principles which are considered proper for the decision, and citing the laws or precedents which may be considered applicable to the case. If, during the course of the action, any defects or omissions should have been committed which should be corrected, they shalt be stated in the last considerando, mentioning, in a proper case, the doctrine to be followed for a correct observance and application of this law. 1 Against the violations of regulations committed during the course of judicial proceedings, the ordinary appeals granted by the laws may be utilized for the purpose of repairing the injury which said violation may cause the parties, and if these 15

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76 LAW OF CIVIL PROCEDURE. 4. Finally, judgment shall be pronounced in the manner prescribed in articles 358 and 359, and such statements as may be necessary to correct any errors which may have been committed in the proceedings shall be set forth. If said errors should deserve disciplinary correction, it may be imposed in a reserved resolution, when this is considered advisable.1 ART. 372. The supreme court and the audiencias shall see that the provisions of the preceding article are complied with, and shall, therefore, duly admonish their subordinate courts and judges when they have not conformed to the rules prescribed therein, and shall impose upon them such other disciplinary corrections which may be proper. ART. 373. The ejecutorias shall be headed in the name of the King. The final judgments shall be inserted therein, as well as the previous ones, if the latter form a complement to the former. If the transcript is issued at the instance of a party, for the protection of his interests, there shall also be inserted such documents, instruments, and proceedings which he may designate, and at his cost. AnT. 374. Orders of mere practice, rulings, and judgments must be issued within the period of time prescribed by law for each. The judge or court who should fail to do so, shall be disciplinarily corrected, unless there should be good cause, which shall be entered in the record. TITLE IX. REMEDIES AGAINST JUDICIAL RESOLUTIONS AND THEIR EFFECTS. SECTION I.-eMedles cgCctnst resolutions of juds of ,J&r 4 instance. ART. 375. Against orders of mere practice issued by judges of first remedies should not have been used, acts consented to and carried out can not be returned to.-Decision of May 7, 1888. The explicit precepts of this article are violated when no law or doctrine whatsoever is cited in the judgment in support of the declaration made therein.-Decision of April 14, 1860. The violation of this article can never give rise to an appeal for annullment of judgment.-Decisions of January 4, September 99, and October 19, 1866, and kne 0, 1865. 1 The decision of questions of fact is of the exclusive jurisdiction of the adjudging chamber.-Decisions of JAne 16 and 30, 1876; Tanuary 18, 1883, and May -1, 1888. An adjudging chamber does not violate any laws by considering and combining various elements, in order to deduce its true belief.-Decision of February 19, 1879. According to jurisprudence of the supreme court, the taxation of costs in the first instance is of the exclusive competency of the superior courts, who are to consider the good or bad faith of the litigants.-Decision of October 7, 1879. The decision in the second instance does not have to be confined to a declaration in the last resultando as to whether the legal prescriptions have been observed or not in the course of the proceedings of the appeal, but must contain a similar declaration with regard to the first instance.

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LAW OF CIVIL PROCEDURE. instance there shall be no other remedy but an application for a rehearing, without prejudice to which the order shall be executed. In order that this application be allowed, it must be made within the third day, and the provision of this law which has been violated must be cited. If these two requisites have not been complied with, the judge shall disallow the application eo instant and without further remedy.1 ART. 376. A rehearing of other orders and rulings made by a judge of first instance may also be requested within five days, excepting those mentioned in article 381. ART. 377. When an application for a rehearing has been presented in the proper manner and within the proper time, a copy thereof shall be delivered to the adverse party, who may object to the application, if he should care to do so, within the three days following, When there are several colitigant parties, said period shall be common for all of them. ART. 378. After the period above mentioned has elapsed, whether or not written objections have been filed, the judge shall, on or before the third day following, decide what he may consider proper. ART. 379. From a ruling deciding on an application for a rehearing or the orders and rulings referred to in article 376, an appeal may be taken on or before the third day thereafter. ART. 380. When the rehearing refers only to the orders of mere practice, mentioned in article 375, there shall be no remedy whatsoever against a ruling deciding the same, except the right to institute an action for liability, and the right to request .in the second instance, that the error be cured when proper. ART. 381. Final judgments in all matters and rulings deciding dilatory exceptions and incidental issues, may be appealed from within five days.2 ART. 382. The appeals may be allowed for a review only, or for a review and stay of proceedings also. They shall be allowed for review only in all cases in which it is not 1 Orders of mere practice (providencias) are those issued for the purpose of conducting the action in the manner prescribed by law. An order requiring that the record be delivered to the relator for the preparation of a brief is not an order of mere practice, when a question is involved in which the appeal is not interposed at the proper time.-Decision of July 9, 1887. 2No appeal lies to the audiencia of the territory from the orders and other resolutions rendered by judges of first instance in actions brought before them on appeal from municipal courts of their district and which are of the competency of the latter in first instance, because the law does not authorize a third degree of jurisdiction in any kind of actions.-Decision of September 13, 1884. When an appeal is interposed in due time without the signature of an attorney, although it can not be passed upon until the defect is cured, the lapse' of the period of time is interrupted, and after the defect is cured said appeal must be admitted.Decision of December 26, 1883. 77

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LAW OF CIVIL PROCEDURE. prescribed that they be allowed without limitation or for a review and stay of proceedings also.' ART. 383. In addition to the cases expressly mentioned in the law, the following appeals shall be allowed for review and for a stay of proceedings: 1. Appeals from definite judgments in all kinds of actions, when not otherwise provided by law. 2. Appeals from rulings and orders which put an end to an action, rendering its continuation impossible. 3. Appeals from rulings and orders which cause definite and irreparable injury.2 ART. 384. In the last case of the foregoing article, if the judge allows the appeal for a review only, because he does not consider the injury irreparable, and the appellant insists upon the contrary, on or before the third day thereafter, the appeal shall be allowed for a review as well as for a stay of the proceedings, provided that the appellant, within a period not to exceed six days, furnishes a bond to the satisfaction of the judge to indemnify the opposite party or parties, in a proper case, for all costs or damages they may incur or suffer. 4 If the audiencia shall affirm the ruling appealed from, it shall condemn the appellant to the payment of said indemnities, and shall moderately fix the amount of said losses and damages. The indemnity therefor shall not be less than 250 nor more than 2,500 pesetas for each of the opposite parties, in addition to the costs. ART. 385. If an appeal is taken in time and in proper form, the judge shall allow it without any further proceeding, if proper, stating whether it is allowed for a review of proceedings only, or for a review and stay of the proceedings. ART. 386. If the appeal has been allowed for a review and stay of proceedings, the judge shall forward the original record to the superior court within six days, under his liability and at the cost of the appellant, first citing and summoning the solicitors of the parties to appear before said court within the period of twenty days. ART. 387. In the case 'of the foregoing article, the execution of the judgment or ruling appealed from shall be suspended until the superior court renders a decision thereupon.8 ART. 388. The jurisdiction of the judge over the principal issue and over incidental issues which may arise, shall also be suspended from the 1 A ruling allowing an appeal for review only is not final for the purposes of an appeal for annulment of judgment.-ecision of July 7, 1886. 2 An appeal for annulment of judgment does not lie when based on a violation of this article, because the latter relates to mere practice only.-Decision of Jun 8; 1885. 3lf a decision is appealed from, even though it be in one of its issues only, it does not acquire the character of a res judicata in any of them.-Decision of January 11, 1876. 78

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LAW OF CIVIL PROCEDURE. 79 moment he allows an appeal therefrom for a review and for a stay of proceedings.1 ART. 389. The following are excepted from the provisions of the foregoing article, and the judge may continue exercising jurisdiction over the same: 1. Issues heard and determined in a separate record, instituted before the appeal was allowed. 2. All matters relating to the administration, custody, and care of property attached or under judicial control, provided that the appeal does not involve one of these points. 3. Matters relating to the security and custody of persons. ART. 390. The execution of the judgment, ruling, or order appealed from shall not be suspended, when the appeal has been allowed for a review of the proceedings only. In such case, if the appeal should be from a final judgment, an authenticated statement of all that is necessary for its execution shall remain in the court, the record being forwarded to the appellate court in the form and manner prescribed in article 386. If the appeal should be from.a ruling or order, the appellant shall be furnished, at his cost, a certified copy of the contents of the record, with such additions as may be made by the colitigant and those which the judge may consider necessary to enable him to apply to the audiencia. The appellant must request said copy within five days, stating the details it should contain. Upon the expiration of this period without having requested it, the said statement or copy shall be denied him and the decision appealed from shall be considered final.2 ART. 391. At the end of the statement or copy mentioned in the last two paragraphs of the foregoing article, the citation shall be entered, summoning the parties to appear before the appellate court within the period of fifteen days, and the fact of service thereof upon the appellant's solicitor shall be therein stated. ART. 392. Within the fifteen days following the date of the deliv'By virtue of the provisions contained in this article, judges are not permitted, after allowing an appeal for a stay of proceedings and for a review, to change the state of the records nor that of the evidence taken, nor to order, therefore, that documents be removed and delivered to the parties who presented the same, -and certified copies put in their place.-Decision of September 18, 1884. 'The ruling from which an appeal for review was allowed shall become final, if the appellant does not request the statement within the period of five days.-Decision of January 16, 1885. Although the signature of an attorney is necessary to the instrument requesting said statement, if the first application did not contain it, the defect must be corrected; but if the application is made in due time it interrupts the lapse of the period and the appeal must be allowed.-Decision of December 26, 1888.

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LAW OF CIVIL PROCEDURE. ery of the statement, the appellant must make use thereof and perfect \ his appeal before the appellate court.' ArT. 393. When any appeal has been allowed for a review only, the appellant may request the audiencia to declare it allowed for a stay of proceedings also, citing the legal provision upon which said request is based. This application must be made within the time fixed for his appearance, if the appeal were from a final judgment, and otherwise at the time when the authenticated statement is presented for the purpose of perfecting the appeal. ART. 394. If, at the time said request is made by the appellant, the respondent has entered his appearance before the appellate court, a 4' copy of said instrument shall be served upon him in order that he may object thereto, if he so desires, within the three days following, upon the expiration of which, the audiencia, without further proceedings and without remedy, shall render the decision it believes conformable to law. ART. 395. If the audiencia shall deny the application above menA tioned, the costs of the issue shall be taxed against the appellant, and the appeal shall take the proper course. If the appeal is admitted for a review and stay of proceedings, an order shall be made requiring the judge of first instance to suspend the execution of the judgment or forward the original record, as the case may be, the parties being notified thereof. ART. 396. The respondent may also request the audiencia, within the period set for the appearance, that the appeal which was allowed by the lower court for a review and for a stay of proceedings, be declared as allowed for a review only, citing the legal provisions on which he bases his request. This application shall follow the same course as prescribed in. article 394. If the appellate court should grant the same, an order shall be issued requiring the judge of first instance to execute the judgment appealed from, and attaching a certified copy of the latter to said order. If the matter on appeal is a ruling or order, requiring that the record remain in the lower court for its continuation, it shall be returned to the same, a certified copy of all that is necessary for the determination of the appeal being retained. ART. 397. Against the rulings or orders of judges of first instance disallowing an appeal, the appellant may seek the remedy of complaint before the respective audiencia. This remedy must be prepared by requesting within five days there'The period within which to perfect an appeal can not be extended on account of its nature.-Decision of December 5, 1861. 80

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LAW OF CIVIL PROCEDURE. after, a rehearing of the subject-matter of the ruling or order, and if it be denied, a certified copy of both resolutions. If the judge should deny the rehearing, he shall order at the same time that, within the six days following, said certificate be given to the party interested, the date of the delivery being entered by the recording clerk at the end thereof. AR. 398. Within the fifteen days following the delivery of the certificate, the party who requested the same shall be obliged to make use thereof, filing his complaint in the audiencia. ART. 399. The said complaint, together with the copy, having been presented in time, the audiencia shall cause an order to be issued requiring the judge of first instance to make a report with the reasons for his action, and after this report has been received, the audiencia shall decide what it may deem just, without further proceedings. If the disallowance of the appeal be considered proper, it shall cause the judge to be informed thereof by means of letters mandatory, in order that it may appear in the record. And if it deems that the appeal should have been allowed, it shall so declare, stating whether it is to be considered as allowed for a review only or also for a stay of proceedings, and shall order the judge, according to the cases, to transmit the original record, as prescribed in article 386, or that the appellant be furnished the certified copy referred to in articles 390, 391, and 392, in the form and for the purposes prescribed therein. SECTION 11.-Remedies against resolutions of audiencias. ART. 400. Against orders of mere practice made by audiencias, there shall be no remedy whatsoever, except an action for liability. ART. 401. Against judgments or rulings deciding incidental issues which are raised during the course of the second instance, there shall be a remedy of complaint to the same chamber within five days.1 The practice for this remedy shall be the same as is provided for rehearings in articles 377 and 378, the decision being rendered after a report from the justice ponente. Am. 402. Against final judgments and rulings which put an end to an action, renderedby audienciad at second instance, there shall be no remedy but an appeal for annulment of judgment, in the cases and in the manner prescribed in title 21 of book 2 of this law. That is to say, in issues occurring and raised during the second instance.Decision of October 6, 1862. This does not take place when there is an express provision of law in contravention thereof, as is the case in article 868 of this law. And therefore a request should not be made to have the record transferred to another chamber, as it would be illegal.-Decision of March 2, 1868, 5901 6 81

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82 LAW OF CIVIL PROCEDURE. Against other decisions which they render on appeal, there shall be no remedy whatsoever, except the action for liability.' ART. 403. An appeal for annulment of judgment shall also lie from the final judgments rendered by audiencias in matters submitted to the same in original and only instance, and from rulings deciding the remedies of complaint established in article 401, when they have the character of final judgments. SECTION III. -Remedies ag/ainst decisions of the supreme court. ART. 404. The provisions of articles 400 and 401 shall be applicable to decisions of a similar character rendered by the supreme court. ART. 405. There shall be no remedy against decisions granting, denying, allowing, or disallowing appeals for annullment of judgment, except that of revision or of criminal liability, in a proper case. SECTION IV.-P8ovisions 0onon to superior and inferior courts. ART. 406. In cases inwhich an elucidation of a judgment is requested, in accordance with the provisions of article 362, the period within which to interpose the remedy which may be proper against the same judgment, shall be counted from the date of the notification of the ruling granting or denying the elucidation. ART. 407. After the periods fixed for the preparation, interposition, or perfection of a remedy, without seeking the benefit thereof, the subject-matter of the judicial decision shall be considered res judicata without the necessity of an express declaration therefor. ART. 408. A litigant who should have taken an appeal or interposed any other remedy, may abandon the same before the judge or court rendering the decision appealed from, if he does so before the record has been forwarded to the appellate court, or before a certificate or authenticated copy has been delivered to him for the purpose of taking or perfecting the appeal. He may also do so after having received this document, if he returns 1 In the law of civil procedure an appeal for annulment of judgment to the chamiber which rendered the final judgment is unknown, even though it was rendered on false testimony.-Decision of March P9, 1866. Although a judgment rendered on false testimony or documents may be revoked and rescinded, it is indispensable that the falsity be proved and that the decision was rendered by virtue thereof and not for any other reasons, in accordance with the provisions of laws 1 and 2, title XX VI, Partida 3, in accordance with the Roman laws, Digest 33, De re judicata, 3rd and 4th Code, 8& ex falsis instrunentis vel testimoniis judicatum sit.-Decisions of February 9, 1865, and October 1, 1866. At the present time if the judgment was rendered on false documents or testimony, there lies an appeal for revision, in accordance with article 1794 of the law in force. Although the final judgments of courts do not generally affect those who have not been parties to the litigation, there are some exceptions, as is the case when the nullity of a will is involved, because after it has been declared null by a court it can not be valid for a third person, even though he should not have been a party to the litigation.-Decision of March V8, 1859.

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LAW OF CIVIL PROCEDURE. it in its original state as a proof that he has not used the same before the appellate court. In other cases the abandonment must be made before the appellate court.' ART. 409. In order to consider the abandonment made, it shall be necessary that the solicitor have or present a special power therefor or that the person interested ratifies his action in writing. When the abandonment is considered as having been made, the costs incurred by the taking of the appeal shall be taxed against the party making it.' TITLE X. EXTINCTION OF ACTIONS. ART. 410. All actions shall be considered abandoned and be -extinguished by law, even if minors or incapacitated persons are parties thereto, if, after having been instituted, they are not prosecutedWithin four years when the cause is at first instance. Within two if it is at second instance. Within one year if on appeal for annulment of judgment. These periods of time shall be counted from the time the last notice was served on the parties.8 ART. 411. No action shall be extinguished within the periods mentioned in the foregoing article when the want of prosecution was due to force majeure or to any other cause independent of the will of the litigants. In such cases said periods shall be counted from the time the litigants could have begun the prosecution.' 'See articles 845 to 848 and 1787. 'An order declaring an appeal abandoned is final.-Decision of December 20, 1862. If the appellant does not appear before the appellate court within the time set for his appearance, it is not necessary that the parties he cited to perfect the appeal, because the first time that the respondent requests judgment in default the remedy is declared abandoned.-Decisions of September 20, 1865, and April 24, 1869. An appeal is not considered abandoned until the court so declares.-Decision of April 6, 1866. 'A declaration of abandonment is not proper when the delay in the proceedings is due to force majeure, an exception which favors the litigant whose solicitor discontinues in the exercise of his duties, without notifying the person interested in due form.-Decision of June 8, 1891. The law does not require for these cases the previous citation which is required in rendering judgments or rulings which close an action, because the intention thereof is to officially close the causes.-Decision of April 29, 1885. The extinction of an action is applicable to causes prosecuted according to the old law of procedure, with the only difference with regard to causes suspended upon the promulgation of this law of the provisions of article 419; that is to say, the periods to be counted from the day on which the law went into effect. -Deci ion of December 7, 1885. 'The loss of the record roll of the second instance does not constitute a cause of force majeure referred to in this article.-Decision of March 9, 1887. 83

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LAW OF CIVIL PROCEDURE. ArT. 412. It shall be the duty of the clerk or recording clerk in whose possession the record may be, to inform the proper judge or court when the periods fixed in article 410 have elapsed, in order that the proper order may be officially issued. ART. 413. If the record be at first instance, and it should appear that the four years have elapsed without any of the parties having taken up the prosecution of the action when they were able to do so, the action shall be considered as abandoned, and the judge shall order the record filed in the archives, without further proceedings. In such case the costs shall be taxed against the parties at whose instance they were incurred. ART. 414. When the record is at second instance, or on appeal for annulment of judgment, after the respective periods have elapsed, the appeal shall be considered as abandoned, and the judgment appealed from or complained against shall be considered final, the record being ordered returned to the lower judge or court, with a certificate of the ruling containing said decision, for the proper purposes. In such cases the costs of the appeal shall be taxed against the appellant or petitioner. ART. 415. The plaintiff, .appellant, or petitioner may request a rehearing or review of the rulings referred to in the two foregoing articles within five days, if he should believe that the court has erred in its declaration that the legal period has expired, by virtue of which the action has been considered extinguished, or if the case is included in the provisions of article 411. The request can not be based on any other reason. ART. 416. This remedy shall take the course prescribed in articles 377 and 378, the person requesting the rehearing being permitted to present his evidence of the facts upon which his request is based within a period not to exceed ten days. ART. 417. The provisions contained in the foregoing articlesshall not be applicable to proceedings for the execution of final judgments. These proceedings may be instituted at any time before the execution of the judgment, even if the periods mentioned in article 410 have expired. ART. 418. The extinction of the first instance does not extinguish the cause of action, which may be prosecuted again in the proper action and a new action instituted, if said cause of action should not have become prescribed in accordance with law.' ART. 419. In actions which, upon the promulgation of this law, are 'See article 944 of the Code of Commerce with regard to the interruption of the prescription of causes of action arising from commercial contracts, and articles 1946 and 1973 of the Civil Code relating to cases in which an interruption will not be considered, etc. 84

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LAW OF CIVIL PROCEDURE. 85 pending in any instance, the period fixed in article 410 shall be counted from the day on which, after their publication, said law goes into operation. If said actions are filed, the pending instance shall be considered as legally extinguished without the necessity of a special declaration, unless the prosecution thereof is proceeded with within the period aforementioned. TITLE XI. TAXATION OF COSTS. ART. 420. When there is an adjudication of costs, as soon as it becomes final, payment shall be enforced by compulsory process, after their taxation, if the party adjudged to pay the same should not have done so before the opposite party requests said taxation.1 ART. 421. The taxation of costs shall be made in the superior and inferior courts by the clerk of the chamber or recording clerk who may have taken part in the action, including therein all the costs comprised in the adjudication, and incurred up to the time of the taxation. In the superior or inferior courts having assessors of costs by virtue of an alienable office, and until said offices revert to the State, said assessors shall make the taxation in accordance with the provisions of this law. ART. 422. Fees appertaining to officials subject to schedules, shall be regulated according thereto. The fees of attorneys, experts, and other officials not subject to a schedule, shall be fixed by the persons interested in a detailed and signed statement, which they shall personally present at the clerk's The costs of the second instance can not be taxed against a litigant who obtained a favorable judgment at first instance, and is forced to appear before the higher court by reason of the appeal taken by the opposite party.-Decision of April 14,1882 The costs can in no case be taxed against the respondent.-Decision of April 25, 1887. The adjudging court is to consider the good or bad faith of the litigants, for the purpose of taxing the costs at first instance.-Decisions of April 14, 1882, October 25 and December 15, 1883, May 21, 1884, May 20 and December 16, 1885, March 31 and May 22, 1886. After the adjudication upon costs, they shall be recovered by compulsory process, without permitting foreign questions to be raised, which must be decided in a separate proceeding. -Decision of ,Tanuwry 17, 1888. When the plaintiff is granted part of what he desires, the rest being denied him, he may be adjudged to pay the costs-Decision of February 13, 1886. When the decision of the lower court is affirmed in all its points, the appellant is obliged to pay the costs.-Decision of September 80, 1886. The costs of the second instance can not be imposed in any case upon the respondent who has appeared to support the judgment he obtained in the lower court.Decision of April 25, 1887.

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LAW OF CIVIL PROCEDURE. office, without the necessity of a letter of transmittal, or through the solicitor of the party whom they defended, after the judgment or ruling in which said costs were imposed becomes final. The recording clerk shall include in the taxation the amount appearing in the statement. ART. 423. Fees for instruments, proceedings, or other acts which are useless, superfluous, or not authorized by law, and the items of statements which are not mentioned in detail, or which relate to fees not incurred in the action, shall not be included in the taxation of costs. Neither shall there be included in said taxation the costs of proceedings or of issues which had been expressly adjudicated against the party who obtained the final judgment, such costs being at all times on account of said party.1 ART. 424. After the taxation of costs has been made and presented, no other entry shall be included or added thereto, the person interested reserving the right to demand payment therefor, if he should so desire, of the person and in the manner he may see fit. ART. 425. The taxation of costs shall be submitted to each of the parties for examination, for a period of three days, the party who has been adjudged to pay the same making the first examination. ART. 426. If the fees of the attorneys should be objected to as being excessive, the attorney against whom the complaint is directed shall be heard for a period of two days, and the record shall then be transmitted to the association of attorneys, and where there is none, to two attorneys appointed by the judge or chamber, for a report thereon. Should there not be two attorneys at the place where the action was heard, or all of them should be interested in the question, the data shall be transmitted to the nearest association or college of attorneys, through the proper judge of first instance. The same action shall be taken when fees of experts or other officials not subject to a schedule are objected to; in such case, the report of the academy, college, or guild to which they belong shall be heard, and if there be none, that of two persons of the same profession. Should there not be any in the place, the neighboring places may be resorted to. ART. 427. The chamber or the judge in a proper case, in view of the statements of the parties or persons interested and the reports received with regard to the fees, shall -approve the taxation or shall order the changes made therein which they may consider just and at the cost of the proper party, without further remedy.2 ART. 428. When the taxation of costs is objected to, because fees or charges have been included therein, the payment of which does not appertain to the person adjudged to pay the costs, said objection shall be heard and decided according to the procedure and with the remedies prescribed for incidental issues. 1See article 858 of the Organic Law. 2After the taxation of costs has been approved there is no further remedy.-Deci*ion of April 30, 1866. 8 6

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LAW OF CIVIL .PROCEDURE. 87 TITLE XII. DISTRIBUTION OF BUSINESS. ART. 429. All civil matters, whether of contentious or voluntary jurisdiction, shall be distributed among the courts of first instance when there is more than one in the town, and in all cases among the different clerks' offices of each court. ART. 430. Judges of first instance shall not permit that any matter be proceeded with, unless a memorandum of distribution appears thereon. In the case said memorandum does not appear, he can not issue any other order but one requiring that the matter be submitted for distribution. ART. 431. Notwithstanding the provisions contained in the foregoing articles, the first proceedings in cautionary attachments, redemptions,' summary proceedings to prevent the construction of a new work or the demolition or strengthening of a construction, building, or tree about to collapse or fall, the custody of persons, and in all other matters which, in the judgment of the judge, are of so peremptory and urgent a character that a delay thereof would give a reasonable motive to fear that irreparable injury would be caused to the persons interested, may be made and carried into effect by any of the judges or clerks of whom the same is requested. In such cases, as soon as the urgent action has been taken, the matter shall be submitted for distribution without a delay of more than three days. ART. 432. With the exception of the cases mentioned in the foregoing article, the judges issuing orders in a matter which has not as yet been distributed shall be disciplinarily corrected, according to the provisions of the following title. ART. 433. Any distributor or clerk of the court who distributes any matter to a court or clerk's office other than the one to which it rightfully belongs, shall incur a fine of not less than 65 nor more than 375 pesetas, without prejudice to the criminal liability which may be proper. ART. 434. A clerk who acts in a matter subject to distribution without it having been assigned to him, shall incur a fine of double the fees he may have earned thereby. ART. 435. Verbal actions, actions of unlawful detainer, and other matters over which municipal judges have jurisdiction, are not subject to distribution. Where there are two or more, each shall take cognizance of those appertaining to his district, in accordance with the rules established 'Retracto: The right which by law, custom, or agreement a person has to annul a sale and himself take the thing sold to another for the same price.--Escriche, Diccionario de Legislacidn y Jurisprudenia.

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LAW OF CIVIL PROCEDURE. in articles 62 and 63, with an appeal to the court of first instance of the same district in which they shall be distributed among its clerk's offices.1 TITLE XIII. DISCIPLINARY CORRECTIONS. ART. 436. Municipal judges and judges of first instance, and the chambers of justice of the audiencias and of the supreme court, shall have the power to disciplinarily correct, 1. Private individuals who do not observe the proper order and respect in judicial proceedings. 2. Officials who take part in actions for the offences they may commit. ART. 437. Whosoever shall interrupt a hearing of an action, or any other formal judicial proceeding, by manifesting ostensible signs of disapproval or of approval, showing a lack of the proper respect and consideration due inferior or superior courts, or by disturbing order in any manner whatsoever, without his action constituting a crime 1The provisions of this article have been supplemented by the royal order of September 20, 1891, the text of which is as follows: 1. In towns in which there are two or more municipal judges, each shall take cognizance of the matters appertaining to his district, in accordance with the provisions of article 435 of the law of civil procedure, and subject to the rules of competency established in articles 62, 63, and 1560, without the parties being permitted to submit either in an implied or express manner to one of them to the exclusion of the other. 2. Municipal judges shall not proceed with any matter, the cognizance of which pertains to another district, and shall not issue any order therein except one transmitting the papers or petitions to the competent court. Letters rogatory shall be executed by the judges in whose districts the proceedings referred to in the commission are to be fulfilled. 3. Judges of first instance, in taking cognizance of appeals, and chambers of justice in deciding questions of competency, shall, in a proper case, impose the disciplinary corrections established in the Law of Civil Procedure upon the secretary of the, municipal court, who should not have entered in a statement the circumstances determining the competency, or upon the municipal judge if, said circumstances having been entered, he shall not duly consider them. 4. In every municipal court of a town in which there are two or niore of said courts, there shall be kept a register of all oral actions and proceedings to avoid litigation which may be held, in which there shall be entered the date of the proceedings or act, the purpose thereof, the names of the plantiff and of the appellant, their domiciles, the street, place, or location of the estate, when the action involves a real action, and any other data which may be necessary to determine the competency. 5. For the purposes of said register, municipal judges shall furnish a daily report to the presiding judge of the territorial audiencia of the oral actions and proceedings to avoid litigation (actos de conciliaci6) which may have been had, stating the details referred to in the foregoing number and the result of each proceeding or action. 6. The presiding judges of the audiencias shall observe the greatest care to secure a proper fulfillment of the foregoing provisions, utilizing for this purpose the powers granted them by the organic law of the judicial service. 88

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LAW OF CIVIL PROCEDURE. (delito), shall be at once admonished by the presiding judge, and expelled from the court room if he should not obey the first admonition. ART. 438. Whosoever shall refuse to comply with the order of expulsion, shall be arrested and punished, without further remedy, by a fine of not more than 50 pesetas in municipal courts,.of 100 in courts of first instance, and of 150 in audiencias, and shall not be released from arrest until he has paid his fine, or has been imprisoned the.number of days necessary to satisfy the fine at the rate of 15 pesetas per day. ART. 439, Witnesses, experts, or any others who, as parties or representing them, should show a lack of the consideration, respect, and obedience due the courts at formal judicial hearings and proceedings, either by words, actions, or in writing, shall be punished in the manner stated in the foregoing article when their offense does not constitute a crime. The attorneys and solicitors of the parties are not included in these provisions, to whom the prescriptions of articles 442 et seq. shall apply. ART. 440. When the acts referred to in the two foregoing articles should constitute a crime or misdemeanor, the parties committing the same shall be placed under arrest and the proper preliminary proceedings instituted, and the persons under arrest shall be placed at the disposal of the court which is to take cognizance of the case. Ar. 441. All judicial acts performed under intimidation or force shall be null. Judges and chambers who shall have acted under intimidation or force, as soon as they are freed therefrom, shall declare all the proceedings so performed null, and shall, at the same time, institute an action against the guilty parties. ART. 442. Attorneys and solicitors shall be disciplinarily corrected1. When they willfully disobey the provisions of this law in their instruments and petitions. 2. When in the exercise of their profession, they show a lack of the respect due the superior and inferior courts, verbally, in writing, or by actions. 3. When, in the defense of their clients, they show an unnecessary or serious discourtesy to their colleagues. 4. When, upon being called to order in their oral arguments, they do not obey the presiding judge of the court. ART. 443. Notwithstanding the provisions contained in the foregoing article, solicitors and attorneys, when called to order, may, after requesting and obtaining the consent of the judge or person presiding at the proceedings, explain the words they may have used, and show the sense or intention in which they were used, or fully satisfy the superior or inferior court. 89

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LAW OF CIVIL PROCEDURE. AnT. 444. The assistants of superior or inferior courts shall also be disciplinarily corrected for the faults which they may commit or the omissions they may incur with regard to their duties in judicial proceedings. The same provisions shall apply to the subordinate officials of superior or inferior courts, for the offences they may commit in the fulfillment of the judicial mandates entrusted to them. ART. 445. The punishment of attorneys, solicitors, assistants, and subordinate officials for the offences above mentioned, shall always be imposed by the court or chamber of justice in which are pending the proceedings, in which said penalties were imposed, or where the oral defense is presented in which the former have committed the transgression. If they shall commit other offences which deserve punishment, it shall be administratively imposed according to the provisions of laws, ordinances, or regulations. An. 446. The chambers of justice of the supreme court may disciplinarily correct those of the audiencias and inferior judges for the offences they may have committed in the proceedings of which the former take cognizance, by virtue of appeals for annulment of judgment, or on complaint, or to decide questions of competency. The civil chambers of audencias shall have the same power with regard to judges of first instance, and the latter over the municipal judges who are subordinate to them, when, by virtue of an appeal or other remedy, they take cognizance of the proceedings in which the offense was committed. ART. 447. Neither judges nor chambers of justice can disciplinarily correct the officials of the department of public prosecution for offences which they may commit in the judicial proceedings in which < they must take part. In such cases they shall confine themselves to informing their hierarchical superior of the offence committed, in order that he may impose the correction which he may deem proper. ART. 448. The disciplinary corrections which may be imposed upon the officials mentioned in articles 442 et seq. shall be1. Admonition. 2. Warning or advice. 3. Reprehension. 4. A fine not to exceed 250 pesetas when imposed by municipal judges, 500 when imposed by judges of first instance, 750 when imposed by audiencias, and 1,250 when imposed by the supreme court. 5. Partial or total retention of the fees or of the charges pertaining to the instruments or acts in which the offence was committed. 6. Suspension from the exercise of the profession or employment with the deprivation of salary and emoluments, which can not exceed three months, but may be extended to six months if a second offence 90

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LAW OF CIVIL. PROCEDURE. be committed. During the suspension the salary and emoluments of the person punished shall belong to the person discharging his duties. ART. 449. The imposition of the costs upon the aforementioned officials shall also be considered as a disciplinary correction, in the cases in which it is authorizediby law. ART. 450. The disciplinary correction shall be imposed eo instacnti, in view of what may appear from the record relating to the offence committed, and, in a proper case, from the contents of the instruments or certificate which may have been made by the recording clerk, by order of the presiding judge, at the time the offence was committed, of the acts which are considered to deserve correction as well as of the explanations made by the person interested. ART. 451. Against an order imposing any of the corrections above mentioned, the party involved may be heard in justification, if he should so request, within the five days following the day he was notified or when he received official notice thereof. ART. 452. The hearing in justification shall take place in the chamber or court where the correction was imposed, according to the procedure prescribed for issues, and without the necessity of the services of a solicitor or attorney. If, for the purposes of said hearing, the record showing the imposition of said correction should not be concluded, a separate record shall be prepared containing the statements which the judge or chamber may deem proper. In municipal courts the matter shall be heard and decided in an oral trial.' ART. 453. These issues shall be heard with the attendance of a representative of the department of public prosecution, and only when the correction consists in the imposition of costs shall the litigants interested therein be parties thereto, if they should request it. ART. 454. The correction may be affirmed, increased, reduced, or vacated in the decision of these issues. ART. 455. From the decisions rendered by municipal judges, the only appeal shall be to the judge of first instance of the judicial district. From the decisions rendered by the latter in first instance, the only appeal shall be to the civil chamber of the proper audiencia. Against those rendered by chambers of justice of audiencias or of the supreme court, there shall be no remedy whatsoever. ART. 456. The department of public prosecution shall see that the provisions of this law are duly complied with, for which purpose, in causes and other judicial matters in which it takes part, if any offence 'The administrative proceedings instituted for the imposition of disciplinary corrections upon officials of the judiciary or upon their assistants, shall be drafted on official paper in accordance with article 43 of the law, without prejudice to reimbursement in a proper case, in accordance with article 49 of the same.-Royal order of December 4, 1884. 91

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LAW OF CIVIL PROCEDURE. is noted which should be corrected, the public prosecutor shall recommend what he may deem proper to the judge or court. ART. 457. The department of public prosecution shall be informed of any disciplinary correction imposed upon officials of the judiciary (excepting that mentioned in subdivision 1 of article 448) as soon as the decision is final, attaching thereto a certified copy of the same drafted on official stamped paper. Those imposed upon assistants of superior or inferior courts shall be entered in a register, which shall be kept in the office of the secretary of the same. Those imposed upon attorneys or solicitors shall be communicated to the dean of the college or association to which they belong for the proper record and other purposes. Where these corporations do not exist they shall be entered in the register of the superior or inferior court. ART. 458. The provisions of this title shall be understood without prejudice to other prescriptions of this law, for the special cases to which they refer. 92

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I BOOK II. CONTENTIOUS JURISDICTION. TITLE I. PROCEEDINGS TO AVOID LITIGATION. r ART. 459. Before instituting a declaratory action a conciliation must be attempted before the competent municipal judge. The following are excepted: 1. Oral actions. 2. Declaratory actions which are brought as an issue or consequence of another action, or proceedings of voluntary jurisdiction. 3. Actions in which the public treasury, municipalities, charitable institutions, and, in general, civil corporations of a public character, are plaintiffs or defendants. 4. Actions in which minors or incapacitated persons are interested, for the free administration of their property. 5. Actions brought against unknown or uncertain persons, or against absentees who have no known residence, or who reside outside of the territory of the court before which the action is to be brought. In the last case, if the litigants should reside in the same town, a conciliation must be attempted. 6. Declaratory actions instituted to annul or to demand the fulfillment of agreements made in proceedings to secure a conciliation. 7. Actions against the civil liability of judges and associate justices. 8. Actions before arbitrators and friendly compromisers, proceedings to secure the settlement of estates, executory actions, actions of unlawful detainer, summary proceedings relating to property, and for temporary maintenance.2 'See note to article 155. 2 With regard to actions brought against the State, and against public corporations, although proceedings to secure a conciliation are not required, there must be stated in a certificate, authenticated in due form, that the administrative remedies and other means to reach an agreement have been used, as prescribed by royal order of June 9, 1847; the law of February 20, 1850; royal decree of September 20, 1851; article 173 of the instructions of May 31, 1855; the decree laws of July 9, 1869, and August 26, 1874; and the royal orders of January 11, 1877, and March 23, 1886. Nevertheless, the absence of administrative proceedings, a requisite similar to the proceedings to secure a conciliation, is not a motive to raise questions of competency on the part of the administrative authorities, but a cause for annulment which 93

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LAW OF CIVIL PROCEDURE. ART. 460. Proceedings to secure a conciliation shall not be necessary for the interposition of actions of teto or retracto (redemption),1 or any other action which is urgent and peremptory in its nature. But if litigation is to be resorted to, the proceedings to secure a conciliation shall be required or a certificate to the effect that a conciliation was attempted without effect. ART. 461. The judge shall not admit a complaint not accompanied by a certificate of the proceedings to effect a conciliation, or that one was attempted without result, in cases in which it is required by law. Nevertheless, proceedings had without this requisite shall be valid and proper, reserving the liability which the judge may have incurred; but said proceedings to secure a conciliation shall take place at any stage of the action in which the absence thereof is noted.' ART. 462. The municipal judges of the domicile, and, in their absence, those of the residence of the defendant, shall be the only ones competent in proceedings to effect a conciliation instituted before them, in cases in which, according to law, they must be held. In towns having more than one municipal judge, the one of the district of the place of residence of the defendant shall be of competent jurisdiction.' ART. 463. If a question is raised as to the competency of the municipal judge before whom the proceedings to avoid.litigation are instituted, or if said judge is challenged, the appearance of the parties shall be considered as an attempt to secure a conciliation, without must be considered by the court taking cognizance of the cause.-Decision of the Council of State of February 9 and May 13, 1864, and others. At the present time the absence of an administrative claim before the judicial proceedings, constitutes the dilatory exception of number 7, article 532 of this law. The fact of proceedings to secure a conciliation not having been attempted does not constitute a basis to take an appeal for annulment of judgment.-Decision of April 3, 1865. A person not taking part in proceedings to effect a conciliation is not bound thereby and may demand its annulment.-Decision of July 1, 1870. With regard to these proceedings in suits for divorce, see the decree of November 23, 1872, and of the regency of February 9, 1875. 1 Tanteo y retracto: The right which certain persons have to acquire for themselves a thing purchased by another, rescinding the sale already made. The fundamental basis of the retracto is, like the tanteo, the right to acquire, in preference to a third person, a thing sold or given in payment to another; but in the tanteo this right of preference must be exercised before the consummation of the contract, while by means of the retracto, the assignment of the estate made to the purchaser is annulled, and the person in whose favor this is effected is substituted for the purchaser or assignee. Thus the tanteo takes place before the sale, and the retracto after it has been consummated. 2If a complaint is made without a certificate to the effect that a conciliation was attempted, this lack alone produces the effects of this article.-Decision of April 17, 1868. 8This article is applicable exclusively to proceedings to secure a conciliation.Decision of June 3, 1869. 94

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LAW OF CIVIL PROCEDURE. further proceedings, and the plaintiff may institute the proper action showing a certificate to this effect. ART. 464. For the purposes of the proceedings to effect a conciliation, the party in interest shall appear before the municipal judge and present as many copies of the complaint signed by him, or by a witness, at his request, should he not be able to sign, as there may be defendants, and one more, in which shall be stated: The names, profession, and domicile of the plaintiff and defendant. The cause of action. And the date on which said complaint is presented to the court. ART. 465. The municipal judge shall, on the day the complaint is filed, or on the next working day, cite the parties to appear on a day and hour designated by him, within the shortest period of time possible. Twenty-four hours at least must intervene between the summons and the appearance, which period may, nevertheless, be reduced by the judge if there be good cause therefor. In no case can the period exceed eight days from the date of the presentation of the complaint.1 ART. 466. The secretary of the .court, or the person whom the latter may designate, shall serve the summons upon the defendant or defendants, in accordance with the provisions of articles 262 and 263 of this law relating to notifications of all kinds; but instead of the copy of the order, one of the copies of the complaint presented by the plaintiff shall be delivered to him, upon which the secretary shall make a memorandum of the name of the municipal judge ordering the summons, and of the day, hour, and place for the appearance. Upon the original complaint, which shall afterwards be filed in the archives, the person summoned shall sign a receipt for the copy, or a witness shall do so at his request, if he is unable to sign. ART. 467. Persons absent from the place where said conciliation is requested, shall be summoned by means of a communication addressed to the municipal judge of the place where they are residing. A copy or copies of the complaint shall be attached to the communication to be delivered to the defendant. The municipal judge of the place of residence of the defendants shall see, under his liability, that the citation is made in the manner prescribed in the foregoing articles, on the first working day after the day of the receipt of said communication, and he shall return the same, duly endorsed, on the same day of the summons, or the next day at the latest. This communication shall be filed in the archives with the copies of the complaints mentioned in the foregoing article. ART. 468. The plaintiffs and the defendants are obliged to appear on 'An extension for the purpose of answering the complaint can not be granted in these proceedings.-Decision of January 14, 1869. 95

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LAW OF CIVIL PROCEDURE. the day and hour fixed. If any of them should not appear, and should not show good cause for not attending, the proceedings to secure a conciliation shall be considered as attempted without result, the costs being taxed against the person in default. ART. 469. The plaintiffs as well as the defendants shall appear accompanied by an hombre beno.' iHombres buenos in proceedings for conciliation must be Spaniards who are in the full enjoyment of all their civil rights. ART. 470. The proceedings to secure a conciliation shall be held in the following manner: The plaintiff shall commence by stating his claims and indicating the grounds upon which the same are founded. The defendant shall answer whatever he may consider proper, and may also exhibit any document upon which he bases his exceptions. After the answer, the persons interested may reply and rejoin, if they so desire. If there should be no agreement, the hombres buenos and the municipal judge shall attempt to secure an agreement. If they should be unsuccessful the proceedings shall be considered as closed. ART. 471. A succinct record of the proceedings to secure a conciliation shall be drafted in a book which shall be kept by the secretary of the court. This record shall be signed by all the persons present, and by a witness for those who should not be able to sign, at their request. ART. 472. In the book referred to in the foregoing article a memorandum shall be made, signed by the municipal judge and by the parties present, to the effect that the proceedings to secure a conciliation had been held, at which the defendants did not appear, if such be the case. If there are several defendants, some of whom appear, the proceedings to secure a conciliation shall be proceeded with, and shall be considered as attempted without success with regard to the other defendants. ART. 473. A certified copy of the minutes of the proceedings to secure a conciliation shall be given to the person or persons requesting the same, or of the failure thereof, or that an effort was made to secure a conciliation, which failed because one or more of the defendants did not appear. ART. 474. The costs incurred in the proceedings to secure a conciliation shall be taxed against the person instituting the same, and the costs of the certificates shall be paid by the persons requesting them. ART. 475. The agreement reached by the parties at a proceeding to 1 See note to article 11, I a 986

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LAW OF CIVIL PROCEDURE. secure a conciliation shall be enforced by the same municipal judge, according to the procedure prescribed for the execution of judgments rendered in verbal actions, when the interest involved does not exceed 1,000 pesetas. Whenever the amount involved exceeds the sum above mentioned it shall have the validity and force of an agreement contained in a formal and public instrument. ART. 476. An action for annulment of the agreement entered into at proceedings to secure a conciliation may be brought for the causes which invalidate contracts. The complaint in said action must be presented to the judge of first instance of the judicial district within the eight days following the proceedings to secure a conciliation, and it shall be heard and determined according to the procedure prescribed for declaratory actions, based upon their import. If the amount involved should not exceed 1,000 pesetas, the action shall also be heard before the judge of first instance, according to the procedure prescribed for oral actions, and without further remedy.1 ART. 477. If the ordinary action is not instituted within two years following the proceedings to secure a conciliation, the latter proceedings shall not produce any effect whatsoever, and new proceedings must be held before instituting the action. ART. 478. Neither shall the prescription be interrupted if the proper action be not instituted within the two months following the unsuccessful proceedings to secure a conciliation.2 ART. 479. The municipal judges shall forward to those of first instance of their respective districts semiannual statements of the proceedings to avoid litigation held before them, in order that they may be filed in the said courts of first instance. IThis article has not prohibited the exercise of the actions which may be legally brought, for other reasons, when not against the agreement entered into.-Decision of January 4, 1866. Orders issued for the enforcement of the agreement entered into in proceedings to secure a conciliation, can not be appealed from for annulment.-Decision of September 28, 1866. The period of eight days refers only to the agreement entered into if the proceedings to secure a conciliation are valid, and not to the vices which invalidate said proceedings.-Decision of January 11, 1883. After the order issued for the enforcement of an agreement entered into at proceedings to secure a conciliation has been executed, the only remedies against the same shall be those granted by law against final judgment.-Decision of November 11, 1881. 'The proceedings to avoid litigation produce the interruption of the prescription of ownership and other property rights, "provided that within two months after the celebration thereof a complaint as to the possession or ownership of the thing con, tested be presented to the judge."-ivil Code, Art. 1947. 5901 7 97

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LAW OF CIVIL PROCEDURE. TITLE II. DECLARATORY ACTIONS.' ART. 480. All contentions at law between parties for which no special proceedings are prescribed in this law shall be heard and decided in the proper ordinary declaratory action. ART. 481. Actions. of this kind are: 1. Declaratory actions of greater import. 2. The same of lesser import. 3. Oral actions. CHAPTER 1.-PROVISIONS COMMON TO DECLARATORY ACTIONS. SECTION I.-RUles to determine the proper action. ART. 482. The following shall be decided in declaratory actions of greater import: r 1. Causes of action in which the amount involved -exceeds 5,000 pesetas.2 2: Causes of action in which the amount involved can not be estimated, or can not be determined according to the rules established in article 488. 3. Those relating to political or honorary rights, personal exemptions and privileges, filiations, paternity, interdiction, and others involving the civil status and conditon of persons. ART. 483. Ordinary causes of action in which the amount involved is more than 1,000 pesetas and does not exceed 5,000 pesetas, shall be decided in an action of lesser import.3 ART. 484. The provisions of the two foregoing articles shall be understood without prejudice to the provisions relating to executory actions. .ART. 485. All questions between parties in which the amount involved does not exceed 1,000 pesetas, shall be decided in an oral action. ART. 486. All causes of action between parties, whether before or after the commencement of an action, and at any stage thereof, may be submitted for decision to arbitrators or friendly compromisers with the consent of all the persons interested, if they have the legal capacity necessary to give said consent. xJuicio declarativo: That involving doubtful and controverted rights which must be judicially decided.-Escriche, Diccionario razonado de legislaciln jurisprudencia. 2According to the law of procedure of Spain (to which the note to article 155 refers), the action of greater import is that involving an amount of more than 3,000 pesetas, while in the Philippines it is the action in which the amount involved exceeds 2,500 pesetas. -The amount for Spain was changed by the law of May 11, 1888. 'For Spain this amount is between 250 and 3,000 pesetas, and for the Philippines between 500 and 2,500 pesetas. 98

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LAW OF CIVIL PROCEDURE. The following are excepted from this rule, and can not therefore be submitted to the decision of arbitrators or of friendly compromisers: 1. The causes of action referred to in number 3 of article 482.1 2. Questions in which, according to law, the intervention of the department of public prosecution is necessary. ART. 487. Complaints in intervention, and all other complaints which are incidental to or a consequence of another action and which must be heard in the ordinary manner, must be heard and determined according to the proceedings established for the proper declaratory actions according to the matter or amount in litigation. If the amount involved should not exceed 1,000 pesetas, and the complaint were incidental to an action of which a judge of first instance is taking cognizance, the latter shall decide the same in an oral action; without further remedy. ART. 488. The amounts involved in the causes, for the purpose of determining thereby the kind of declaratory action to be instituted, shall be determined according to the following rules: 1. In petitory actions relating to the right to demand perpetual annual prestations, the amount involved shall be determined by one annual payment multiplied by 25. 2. If the prestation be for life, the annual payment shall be multiplied by 10. 3. In obligations payable at different times, the amount involved shall be determined by the amount of the entire obligation, when the action involves the validity of the obligation in its entirety. 4. When several credits belong to several persons interested and arise out of one and the same title against a common debtor, if each creditor, or two or more creditors, institute' separate actions for the payment of what is due them, the amount involved, for the purposes of determining the character of the action, shall be the amount claimed. 5. In actions relating to easements, the amount thereof shall be calculated by the amount paid for said easements, if it should appear. 6. In real or mixed actions the amount involved shall be the value of the real estate or thing in litigation, according to the consideration appearing in the last instrument by which said property was alienated. When the action involves, in addition to the property, the profits or rents which may have accrued therefrom, the latter shall be added to the value of said property. 7. In actions involving several credits against the same debtor, the amount involved shall be determined by the total amount of all the credits. 8. In actions relating to the payment of credits together with interest or profits, if the interest due and unpaid should be claimed with the 'See articles 1814 and 1820 of the Civil Code. 99

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LAW OF CIVIL PROCEDURE. principal the former shall be added to the amount of the credit in order to determine the amount involved. The amount of the profits shall be deemed true and exact if the plaintiff shall state in his complaint the annual import of the same and the time during which they have remained unpaid. If the amount of the interest or profits due is not true and exact, it shall be ignored, and the principal only shall be taken into consideration. 9. The provisions of the foregoing rule are applicable to the case in which damages are claimed together with the principal amount. 10. For the purpose of determining the amount of the claim, only a the interest and profits due and unpaid shall be taken into consideration, and not those to fall due later. ART. 489. The amount involved in every action shall be precisely determined according to the rules established in the foregoing article, and when it cannot be determined by the same, the class of action in which the matter is to be heard shall be determined in the complaint itself. ART. 490. The judge of first instance shall proceed with the action in accordance with the procedure prayed for by the plaintiff, unless he considers himself incompetent on account 'of the amount involved, in I which case he shall render a decision to that effect, notifying the plaintiff to allege his rights before the competent judge. This ruling may be appealed from for a review and stay of proceedings. ART. 491. In actions of greater and lesser import, when the defendant does not agree to the value given to the thing in litigation, or to the character of the action instituted by the plaintiff, he shall so state to the court in writing within the first four days of the period allowed to answer the complaint, presenting, in a proper case, the documents on which he bases his contention. Said period of four days cannot be extended. ART. 492. After said written statement has been presented to the court, the judge shall cite the parties to appear, fixing a day and hour therefor within the six days following, in order that the parties may come to an agreement with regard to the class of action to be adopted. If they should not come to an agreement and the difference should consist in the nonexistence of the data referred to in the rules of article 488, and each party should place a different value on the amount involved in the complaint, they shall at the said hearing appoint an expert to appraise the same, or each party shall select one, and the judge a third one, for the purpose of settling any differences which may arise between the other two. The result arrived at, at the appearance, which may be attended, in a proper case, by the attorneys of the parties, shall be succinctly recorded, and the statement shall be signed by the persons attending and by the judge and the clerk. 100

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LAW OF CIVIL PROCEDURE. ART. 493. When the parties do not come to an agreement with regard to the class of action to be adopted, the judge, within the two days following that of the appearance, or after the decision of the experts, in a proper case, shall make such ruling thereupon as he may consider proper. ART. 494. There shall be no remedy whatsoever against a ruling declaring that an action of greater import is proper. An appeal for annulment of judgment only shall lie against a ruling declaring that an action of lesser import is proper. This appeal must be taken at the same time as an appeal from the final judgment, but it shall be necessary to prepare the same within the three days following the notice of the ruling, by stating the intention of taking said appeal for annulment at the proper time. If it should be declared that an oral action before the. competent municipal judge is the proper action, an appeal for a stay and review of the proceedings lies fromthe ruling. ART. 495. If there should be doubt as to the amount in litigation in oral actions, the question shall be decided by the municipal judge after hearing the parties at the time of the appearance for trial. No appeal shall lie from the decision of said judge sustaining his jurisdiction, but if an appeal be taken from the final judgment, the judge of first instance may annul the proceedings, if it should appear that the amount involved is greater than 1,000 pesetas. An appeal for a review and stay of proceedings shall lie to the judge of first instance of the district from a ruling of a municipal judge, declaring that the amount or matter in litigation does not come within his jurisdiction. SECTION ILPreparatory proceedings. ART. 496. Every action may be prepared: 1. By a demand made by the party who proposes to bring an action upon the party whom he intends to sue, for a sworn declaration with regard to some fact relating to the personality of the latter, and without information of which the action cannot be brought. 2. By demanding the exhibition of the personal property, which, in a proper case, is to be the object of the real or mixed action which he intends to institute against the person who has the same in his possession. 3. By the person who believes himself to be an heir, coheir, or legatee, to exhibit the will, codicil, or testamentary memorandum of the testator. 4. By the buyer demanding of the seller, or the seller of the buyer, in case of eviction, the exhibition of the title deeds or other instruments having reference to the thing sold. 101

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LAW OF CIVIL PROCEDURE. 5. By a partner or member of an association demanding the presentation of the documents and accounts of the company or association, of a copartner or coowner, who may have the same in his possession, in r cases in which it may be proper according to law. The judge shall grant the request in any of these cases, if he should deem the cause on which it is based a good one. If not included in A the foregoing cases, the judge shall deny the same ex-ofcio. An order of the judge denying said request may be appealed from for a review and for a stay of proceedings.1 ART. 497. In the first case of the foregoing article, the procedure prescribed for confession in court shall be followed, until a declaration of confession is obtained, in a proper case. ART. 498. In the second case of article 496, if the personal property being exhibited, the plaintiff should state that it is the property which is the object of the action, the clerk shall enter a description thereof in the record and it shall be left in the possession of the person exhibiting the same, ordering him to preserve it in the same condition until the termination of the action. The deposit of said personal property may also be ordered at the instance of the plaintiff, if the requisites of article 1398 necessary for the ordering of a cautionary attachment, are attendant. This deposit + shall be for the account and at the risk of the person requesting it, and if he should not institute his action within the thirty days following, the attachment shall be dissolved de jure, an indemnification for the damages caused thereby being made. The admonition ordered in the first paragraph of this article shall also remain without effect, if the action is not instituted within said period. ART. 499. In the third case of article 496, if the party shall designate, at the time the request is made, the protocol or archives in which the original document is filed, he shall not be required to exhibit the document. ART. 500. He who shall refuse, without just cause, to make the exhibition referred to in cases 2, 3, 4, and 5, of article 496, shall be liable for the losses and damages which may be caused to the plaintiff, who may claim the same in the main action. If the party required to make such exhibition objects thereto, his objection shall be heard and decided according to the procedure established for issues. ART. 501. With the exception of the cases mentioned in article 496, the person seeking to institute an action can not request a declaration The law of civil procedure is not violated when a request being made for the exhibition of title deeds by virtue of which another possesses an estate is definitely denied, because the cause for the request does not appear good in the judgment of the court.-Decision of Aipril p90, 1870. i 102

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LAW OF CIVIL PROCEDURE. under oath from the opposite party, or from witnesses, or for any other evidence, except when the advanced age of some witness, the imminent danger of his life, his near departure to a point where communication is difficult or slow, or for other good reasons, said party is in danger of losing his rights for lack of evidence; in which case he may request, and the judge may order, that the witness or witnesses who may be under the circumstances referred to, be examined in the manner prescribed in the proper articles of this law. These proceedings shall be attached to the record as soon as the action shall have been instituted. SECTION III.-Preentation of document8' ART. 502. The following must necessarily be attached to every complaint or answer: 1. The power of attorney by which the solicitor is empowered to act, whenever he intervenes. 2. The instrument or instruments showing the representative capacity of the party, if he appears as the legal representative of some person or corporation, or if the right he claims is based upon one conveyed to him by another by inheritance or otherwise. 3. The certificate of the proceedings to effect a compromise (acto de conciliacidn) or to the effect that proceedings to avoid litigation were attempted in vain, in the cases in which they are an indispensable requisite before instituting an action.2 ART. 503. Every complaint or answer must also be accompanied by the document or documents upon which the party interested bases his right. If said documents are not at his disposal, he shall indicate the protocol or archives in which the originals are filed. It shall be understood that the plaintiff has the documents at his disposal, and they must be attached to the complaint, whenever the With regard to the formalities to be observed in documents, see article 396 of the mortgage law, and article 152 of the regulations of September 25, 1892, relating to the tax on property rights. z See art. 461 of this law. This article is violated when the use of waters and an easement being involved and the ownership having been acknowledged by the opposite party, the plaintiff is demanded to prove the same.-Decision of November 29, 1888; decision of February 8, 1888. Administrators and agents must attach to the complaint the instrument evidencing the capacity in which they appear in the action. A dilatory exception for lack of personality may be taken against ,a plaintiff who claims a right transferred to him, without proving the assignment by an instrument attached to the complaint.-Decision of May 21, 1879. But the personality exists from the time of the presentation of the instrument transferring the right, a proof as to the validity of this right not being required. -Decision of June 4, 1879. 103

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LAW OF CIVIL PROCEDURE. originals are filed in a protocol or public archives from which he may demand and obtain authenticated copies of the same. ART. 504. The presentation of the documents referred to iii the foregoing article, when they are public, may be made by means of a simple copy, if the person interested declares that he has no other authentic copies; but said copy shall not produce any effect whatsoever, if, during the period designated for taking evidence, he does not obtain and include in the record a copy of the document having the requisites necessary in order to be admitted as evidence. ART. 505. After the filing of the complaint and answer, neither the plaintiff nor the defendant shall be permitted to file any other documents but those mentioned in the following cases: 1. Documents bearing a date later than the date of said pleadings. 2. Documents bearing a date prior thereto, when the party presenting the same states on oath that he had no prior knowledge thereof. 3. Documents which could not be procured before for reasons for which the party interested can not be blamed, provided that the designation mentioned in the second paragraph of article 503 has been made at the proper time.' An. 506. No document whatsoever shall be admitted after the citation for judgment. The judge shall, on his own motion, reject those which may be presented, ordering them to be returned to the party without further remedy. This shall be understood without prejudice to the authority which, in furtherance of justice, is vested in judges and courts by article 340. ART. 507. Every document presented after the expiration of the period fixed for the taking of evidence, shall be referred to the opposite party, in order that, within the period of six days, which can not be extended, he may state whether he acknowledges the document as genuine, efficacious, and admissible, or the reasons he may have for objecting thereto. This statement shall be made in a supplementary prayer (otrosi) in the concluding pleadings, when the condition of the record permits it. For the purpose of making such reference only, the original document shall be delivered -to the opposite party or parties in cases in which no copy is attached on account of the document being composed 1 The violation of this article can not serve as a basis for an appeal for annulment of judgment.-Decision of October 10, 1882. When the plaintiff designates the place where the documents which must be attached to the complaint may be found, and, before answer is made, succeeds in attaching the same to the records, said complaint can not be rejected on account of a breach of law in the manner of presenting the same.-Decision of May 14, 1884. No essential form of procedure was violated in rejecting a document which the plaintiff had requested be included in the record, believing that this should be done because it bore a date later than that of the complaint and answer, without considering that it related to occurrences of a prior date.-Decision. of March 22, 1888. 104

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LAW OF CIVIL PROCEDURE. of more than twenty-five pages. If there are as many copies as there are opposite parties, the period of time for such reference shall be common and simultaneous for all. ART. 508. A party who allows the six days to elapse without disputing the correctness of said document, shall be considered to have acknowledged the efficacy thereof in the action. ART. 509. Within the three days following the delivery of the copy of the objections made to the document, the party who shall have presented the document may briefly answer, setting forth what he may deem proper. After said period has elapsed no instrument whatsoever shall be admitted on this point. ART. 510. When the document is a public one and the authenticity thereof is denied, or any of the parties should be in doubt as to the correctness of the copy, it shall be compared with the original, with a citation of the opposite parties, in the manner prescribed -in article 598. In such case, if the certified copy or the transcript should not contain the entire document referredto, such particulars as the parties may designate at the time of the comparison shall be added. ART. 511. If the document were a private one, it shall be considered valid and efficient when the party whom it prejudices acknowledges it as genuine. Such acknowledgment shall be considered as made if it be not expressly objected to, or six days are allowed to pass without the document being disputed. If the said party does not acknowledge the signature, or disputes the genuineness of the document, the comparison prescribed in articles 605 et seq. shall be made. ART. 512. When the objection refers to the admission of the document by reason of its not being included in any of the cases mentioned in article 505, the judge shall reserve his decision until final judgment is rendered. ART. 513. In case that one of the parties should contend that a document which may have a well-known influence in the action is false, and institutes a criminal action for the discovery of the crime and of its author, the action shall be suspended until after a final sentence is rendered in the criminal action. Said suspension shall be decreed as soon as the party interested shows that the complaint in the criminal action has been admitted.' There shall be no remedy whatsoever against this order. It is not sufficient to indicate suspicions as to the falsity, but it is necessary to make an accusation, as litigants may do according to this article.-Decisions of January 90, 1866, and June 9, 1868. After a party has presented a document in. an action he has no right subsequently to deny its authenticity on account of mere suspicion, because a document can not 105

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LAW OF CIVIL PROCEDURE. SECTIONIV.Copies of instruments anid documents and their purposes. ART. 514. Every instrument presented in a declaratory action shill be accompanied by as many true copies thereof, on ordinary paper, as there are other litigants, which copies shall be signed by the solicitor, or in a proper case by the party, being responsible for the correctness thereof. For this purpose parties bringing the action in common and represented by the same counsel shall be considered as a single party. The instruments mentioned in number 4 of article 10 are excepted from said prescription. ART. 515. In the same manner there shall be accompanied as many copies of every document presented as there are other litigants. If any document is composed of more than 25 sheets, the presentation of copies thereof shall not be obligatory, but they shall be admitted if presented. ART. 516. The copies of the instruments or documents shall be delivered to the opposite party or parties upon being notified of the order made with regard to the respective instrument, or when the proper citation or summons is served upon them. ART. 517. The omission of the copies shall not be a ground for the nonadmission of the documents and instruments which are presented at the proper time. In such case the judge shall fix, without further remedy, the unextendible period which, taking into consideration the length of the instrument and documents, he may consider necessary to make the copies; and if they should not be presented within said period, the clerk shall make the same at the expense of the solicitor or of the party, if no solicitor took part. From these provisions are excepted the complaints, which shall not be admitted when not accompanied by the copies thereof and the documents prescribed. ART. 518. The original record shall in all cases be preserved in the clerk's office, where it may be examined by the parties or their counsel during office hours, whenever they wish to do so, without the clerk charging any fees for the exhibition thereof. The original papers shall be delivered or referred to the parties only in the cases expressly prescribed by law. be classified as false without the previous declaration required by law 11, Title III, partida 3, or which said party could obtain by making use of the right granted by the law of civil procedure.-Decision of October 2, 1866. Although the institution of a criminal action is optional with the parties, for a suspension of the action it is indispensable that the document, the falsity of which is alleged, be of importance therein, without the violation of this article in any case being a motive for an annulment of judgment. See article 361 of this law. 106

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LAW OF CIVIL PROCEDURE. An. 519. The answers to the pleadings and similar matters shall be made in view of the copies, documents, and orders which each party shall retain in his possession. If, on account of some document having more than 25 sheets a copy thereof should not have been presented, the original shall be'delivered to the opposite party for the purpose of making answer, being afterwards attached to the record. ART. 520. Upon the expiration of the period allowed to a party to answer any pleading, proceedings, or act, without answer being made and after the expiration, in a proper case, of the extension which may have been allowed, such action shall be taken as may be proper, at the instance of the opposite party. Nevertheless, any proper instrument shall be admitted and it shall produce its legal effects if presented before the day when notice of the order made thereupon is given. It shall not be admitted thereafter, and said order being considered final, the proceedings shall be continued. ART. 521. If any document has been delivered to the parties which is not returned within the proper period, the proceedings prescribed in art. 308 for the recovery of the record shall be followed. ART. 522. Excluding the provisions of article 513, the provisions of this section and those of the foregoing one are not applicable to oral trials, which shall be governed by the special rules therefor.' CHAPTER II.-DECLARATORY ACTIONS OF GREATER IMPORT. SECTION I.COn-plaint and Summrons. ART. 523. A declaratory action shall commence by the filing of a complaint, which shall succinctly and in numerical order state the facts and the principles of law upon which it is based, and the claim shall be clearly and precisely fixed, as well as the persons against whom the complaint is directed. The kind of action instituted shall also be stated when a question of jurisdiction is to be decided thereby.2 'Testamentary proceedings being instituted, the heir and the legal representative of the estate must be cited to appear.-Decision of March 16, 1864. When three or more persons are sued together and in solido, the domicile of the greater number must be taken into consideration.-Decision of December 18, 1868. 2 Arts. 224, 225, 254, 256, and 260 of the law of 1855 are equivalent to articles 523, 539, et seq. of the new law, and establish the manner of instituting actions and pleading exceptions, and the period within which the questions of fact and of law are to be definitely determined and which are the object of the judicial contention, in order that the question being confined to clear and precise terms, the order of the action may be methodized and the status of the litigants be equal, who otherwise would constantly be surprised by new questions.-Decisions of Jne 15, 1866, and May 12, 107

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108 LAW OF CIVIL PROCEDURE. ART. 524. After the complaint, together with the necessary copies, has been presented, it shall be referred to the defendant or defendants, who shall be summoned to appear in the action within a period of nine days, which can not be extended.' ART. 525. When the person to be summoned does not reside in the place where the action is instituted, the judge may extend the period for the appearance, granting such time as he may consider necessary, in view of the distances and means of communication, said extension not to exceed one day for every 30 kilometers of distance. ART. 526. If the defendant, having been personally summoned, or after service of summons has been made upon the nearest relative or upon a member of the household found at his residence, allows the 1865. For this reason no questions should be considered which are raised after the arguments have been closed.-Decision of October 17, 1892. The plaintiff must determine in the complaint precisely what he claims and determine the kind of action he brings; and in the answers and rejoinders the plaintiff as well as the defendant must definitely determine the questions of fact and of law the object of the arguments, no definite judgment being permitted on points raised subsequently thereto, and on those which have not been argued or with regard to which no evidence has been taken.-Decisions of December 4, 1865, and May 19, 1863. An indication of the action brought is now only necessary in the case of the second paragraph of article 523. Thus, if said instruments should not be objected to by the opposite party or the nullity demanded of a public document, upon which the opposite party bases his cause of action, -the validity of said document must be admitted as an unquestionable fact, and can not be contested afterwards for the purpose of taking4an appeal for annulment of judgment.-Decision of January 30, 1864. When the action is based upon the nullity of an act or obligation, a declaration of nullity must previously be requested, and consequently an annulment of the other rights to which it gave rise.-Decisions of April 26, 1861, January 80, 1864, April 28, and May 12, 1865. But this is understood with regard to the plaintiff and not to the defendant who complies with this provision by taking an exception alleging the nullity of the document and its consequences.-Decision of December 7, 1885. It is not necessary to give the technical name to the action instituted, but it is sufficient to determine the class to which it belongs, etc.-Decision of October 7, 1858. Actions are not classified according to the name given them by the parties, but according to the matter involved.-Decision of October 14, 1886. A decision which definitely decides a cause can not possibly violate articles 523 et seq. of this law, which refer to the form in which the complaint is to be made in order to be admitted, and it is evident that after having been admitted it can not be alleged that a decision declaring that there was no basis for the action signifies a nonadmission of the complaint,-Decision of JAne 7, 1884. A complaint can not be rejected without any proceedings under the pretext of being unjust and frivolous, if it appears to have all the external legal conditions.Decision of January 31, 1885. With regard to the prescription of actions, the lapse of time is sufficient for it to take place without the other requisites which the law requires for the prescription of the ownership of real estate being necessary therefor.-Decision of June 23, 1886. 'The omission of the copies of the documents on which the cause of action is based does not constitute a basis for an annulment of judgment mentioned in subdivision 1 of article 1691 of this law.-Decision of July 10, 1886.

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LAW OF CIVIL PROCEDURE. period fixed for the appearance to expire without appearing and be declared in default, the complaint shall be considered as answered. After being informed of this order, the action shall be proceeded with in default, other notifications to be served thereafter being made within the limits of the court. ART. 527. If the summons should have been served by delivery to servants or neighbors, or by means of edicts, and entry in default on account of the failure of the defendant to appear has been requested, if he should not be found at his residence, a second summons shall be -issued in the same manner as was the first one, citing him to appear within a period half that fixed in the previous summons. If the second period expires without appearance, he shall be declared in default, and the complaint shall be considered answered at the instance of the plaintiff, this order and all others thereafter made, being served within the court. ART. 528. If there are several defendants, the period for appearance to answer shall begin to run and be counted for all of them on the day following that on which the last defendant summoned was served. Until this period expires, entry of default can not be requested against any of said defendants, and such request shall be presented in a single petition relating to all the defendants in default. ART. 529. After the defendant has duly appeared, he shall be considered as a party to the action and shall be required to make answer to the complaint within twenty days thereafter. This period shall be common for all the defendants when there are several, unless, by reason of the plaintiff not having submitted the copy of a document exceeding twenty-five sheets in length, the original one must be delivered to each of said defendants, and they can not litigate jointly. In such case the period within which to make answer shall be twenty days for the first of the defendants, and ten days for each of the others. ART. 530. In case that there are several defendants, they must litigate jointly and be represented by the same counsel, if the exceptions they plead are all the same. If they are different they may litigate separately. If it should appear from the answers that the same .exceptions have been pleaded, the judge shall compel such defendants thereafter to litigate jointly and be represented by the same counsel. SECTION II.-Dilatory exeptwn0. ART. 531. If the defendant should plead any dilatory exception, he shall not be obliged to answer the complaint until the same has been disposed of, which must always be done before any further proceeding in the action. 109

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LAW OF CIVIL PROCEDURE. ART. 532. The following only shall be admissible as dilatory exceptions: 1. Lack of jurisdiction. 2. Want of personality on the part of the plaintiff on account of the lack of some qualification necessary to appear in an action, or because he does not prove the character or representative capacity under which he sues. 3. The want of personality in the solicitor of the plaintiff, on account of the insufficiency or illegality of the power of attorney. 4. Want of personality on the part of the defendant, because he does not have the character or representative capacity under which he is sued. 5. The pendency of another action in another competent superior or inferior court. 6. A legal defect in the manner in which the complaint is made. It shall be understood that this defect exists when the requisites referred to in article 523 are not complied with in the complaint. 7. The absence of a prior demand made administratively, when the complaint is directed against the public treasury.2 ART. 533. If the plaintiff were a foreigner, a demand from the 1 Declinatures must be heard and decided as issues even when interposed in favor of the administrative authorities, requiring therefore a hearing of the department of public prosecution.-Decision of July 12, 1880. When the appeal is based on the want of jurisdiction on account of the question involved, the appellant considering that the same is of an administrative character, an appeal for breach of form is not proper, but an appeal for breach of law may be taken in accordance with article 1692, number 6, of the Law of Civil Procedure.Decision of April 27, 1889. 2 The directors of associations in liquidation retain their powers to demand the fulfillment of obligations in favor of the same before their dissolution.-Decision of October 12, 1888. A litigant can not allege the lack of personality of an opposite party when it has been recognized in other questions. Nor can the personality of a solicitor be questioned on account of the insufficiency of a power, especially if this was corrected, provided that said circumstance does not affect the validity of the power.-Decision of July 4, 1878. A ruling relating to the dilatory exceptions of want of jurisdiction and litis pendencia is not definite for the purposes of an annulment of judgment, because it does not put an end to the action.-Decision of March 81, 18&5. The circumstance that a complaint administratively made in the name of the State had not been made before the judicial complaint, can not affect the question of competency.-Decision of April 27, 1880. That is to say, this prior administrative complaint is equivalent to proceedings to secure a conciliation, and as the absence thereof does not vitiate the judicial proceedings according to article 461, the omission of the preliminary administrative proceedings can not affect it, nor can it be invoked as a basis to raise a question as to the competency of the court, as has been declared in a number of decisions, of which may be cited those of January 30, 1865, April 19, 1878, August 10, 1879, and May 20, 1882. 110

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LAW OF CIVIL PROCEDURE. 111 defendant for security for the purpose of satisfying anything which may result from the action, in the cases and in the manner in which said security is demanded of Spaniards in the country to which said foreigner belongs, shall also be considered a dilatory exception.' ART. 534. Dilatory exceptions may be pleaded within six days only, counting from the day following the notification of the order requiring r an answer to the complaint. After said period has expired these pleas must be alleged. in the answer and shall not produce the effect of suspending the course of < the action. ART. 535. All dilatory exceptions must be pleaded by the defendant at the same time and in the same instrument; if he does not do so, he can only make use of those not pleaded in his answer to the complaint. ART. 536. All dilatory exceptions shall be referred to the plaintiff for a period of three days. After the plaintiff has returned the exceptions they shall be heard and determined in the manner prescribed for issues. ART. 537. The judges shall first decide upon the declinatory pleas and exceptions to the pendency of an identical action in another court if any of these exceptions have been pleaded. If the judge declares himself competent, he shall at the same time decide all other dilatory exceptions. In any case the ruling hereupon may be appealed from for a review and for a stay of proceedings.2 ART. 538. After the decision overruling the dilatory exceptions has been agreed to, or after it has become final, notice shall be served upon the defendant at the instance of the plaintiff requiring him to answer the complaint within the ten days following the service of the order. 'The dilatory exceptions are all specified in this law, and that of security for the results of the action can only be pleaded in the case indicated. A decision which disallows this exception is not definite for the purposes of an annulment of judgment, nor does an appeal lie therefrom.-Decision of March 18, 1871. This exception can not be pleaded, whatever be the laws of the country to which the foreigner belongs, when the latter has resided many years in Spain engaged in commerce and is a member of commercial associations, and consequently does not require -, this guaranty for the purpose of alleging his rights before the courts of the Kingdom arising from contracts executed in Spain and with Spaniards.-Decision of October 13, 1881. In order that this dilatory exception be admissible and proper in an action, it is not sufficient that the litigant in question is a foreigner, but it is indispensable that said caution be required of Spaniards in the country to which he belongs, or of which he is a citizen.-Decision of June 30, 1877. 2 When the exception to the jurisdiction is allowed, the judge must abstain from deciding any other questions.-Decision of April 17, 1886. A decision overruling dilatory exceptions is not definite.-Decision of September 29, 1886.

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112 LAW OF CIVIL PROCEDURE. SECTION III.-Aswers, counterclaims, replication, and rejoin ders. ART. 539. The defendant shall make his answer in the manner prescribed for the complaint. AnT. 540. If the answer is not filed within the time fixed therefor, the complaint shall be considered as answered upon the petition of the plaintiff and the proceedings shall be continued as may be proper.1 ART. 541. In the answer to the complaint, the defendant must plead all the peremptory exceptions which may be proper and the dilatory ones which were not taken within the period prescribed in article 534. 7 In the same answer may also be included the counter-claim in cases in which it may be proper. No counter-claim shall be admitted when the judge has no jurisdiction to take cognizance of the same on account of the matter therein contained.' 'An answer may be admitted after the period of twenty days has expired, and an extension may be granted in a proper case if the plaintiff does not utilize the means or complaints authorized by articles 308 and 520 of the law.-Decision of May 8, 1884. 2 The exception of res judicata requires the threefold identity of persons, things, E and actions, and the reservation of rights made in the original judgment can not be understood in the sense that the same question can be reopened between the same persons on the same grounds.-Decision of February 28, 1884. The exception of res judicata requires the threefold identity of person, thing, and action.-Decisions of July 6, 1882; June 15, October 15, 1885; January 21, farch 24, November 2, and December 7, 1886. The irrevocability of res judicata refers only to the persons who have been parties to the action.-Decision of December, 29, 1883. Although it is true that in the answer to the complaint the defendant should plead his exceptions, and in replications and rejoinders should state definitely the points of fact and of law under discussion, it is no less certain that afterwards, in support of the counter exceptions, documents may be presented of a later date, or under oath of being new evidence, should they be of prior date.-Decision of October 12, 1866. Although res judicata does not affect the persons who have not been parties to the action, it is evident that it may be pleaded as an exception when an action is in question, in which said parties bring a similar action with the same object in view, basing their claims upon the same rights contained in similar titles, so that the situation of the parties is identical.-Decision of October 6, 1884. If an identity of persons and action exists, but not of things, the exception of res judicata can not be pleaded.-Decision of October 90, 1884. Decisions rendered in executory actions have not the force of res judicata.-Decision of March 6, 1885. Although res judicata prejudices only the persons who are parties to the action in r which the final judgment was rendered, as well as their heirs and legal representatives, this general rule does not govern nor does it apply in the case of the declaration of the validity or nullity of a will, which affects all those who derive their action and right therefrom.-Decision of June 2, 1886. If the action being heard in the absence and in the default of the defendants, the a prescription of the rescissory action has neither been proposed nor been the object of the arguments, and which exception might have been pleaded by said defendants, i in a proper case, there thus being lacking legal terms to allow or overrule said excep-

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LAW OF CIVIL PROCEDURE. ART. 542. After the answer to the complaint has been filed, a counter claim can not be filed, the defendant reserving his right, which he may exercise in the proper action. ART. 543. The exceptions and the counter claim shall be heard at the same time and in the same manner as the principal issue of the action, and shall be decided with the latter in the final judgment.' The peremptory exception of res judicat is excepted when it is the only one pleaded. In such case, if the defendants should request it, said exception may be heard and decided according to the procedure prescribed for incidental issues.2 ART. 544. The defendant may make use of the privilege which is granted the plaintiff in article 501, to request the examination of witnesses before the expiration of the period of time prescribed for the taking of evidence, in the cases and in the manner prescribed in said article. ART. 545. The answer to the complaint shall be referred to the plaintiff for a period of ten days in order to permit him to reply thereto, and the replication for a similar period to the defendant, in order that he may rejoin thereto; ART. 546. The plaintiff may waive a replication, in which case a rejoinder shall not be permitted.8 The replication shall be considered as waived by the plaintiff when he expressly does so, or when he allows the period of time required for the filing thereof to expire without presenting the same, and when the opposite party requests that the papers referred to the plaintiff be ordered returned. In such case the parties must, within the three days following, request, should they not already have done so, that the evidence in the case be taken, it being understood, otherwise, that they waive the right to do so. ART. 547. In the replication and rejoinder, the plaintiff as well as the defendant shall concisely and definitely, in numbered paragraphs, state the points of fact and of law which are the object of the contentions, the adjudging chamber in doing so upon its own initiative commits a violation from which an appeal for annulment of judgment may be taken.-Decision of December 15, 1887. Exceptions which are not pleaded in the answers or replication, can not be considered in the judgments nor serve as a basis for an appeal for annulment of judgment.-Decision of February ,3, 1888. 'When in the answer to the complaint a counter claim is presented, the final judgment must decide the complaint and the counter claim, and if this is not done the provisions of this article are violated.-Decision of April 2, 1869. 2Articles 1251 and 1252 of the Civil Code state the conditions or requisites which produce res judicata. The lack of a replication does not constitute an implied acknowledgement and confession of the facts alleged in the answer and rejoinder.-Decision of larch 24, 1885. 5901-8 113

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114 LAW OF CIVIL PROCEDURE. tion, being permitted to modify or make additions to those contained in the complaint and answer. They may also amplify, add to, or modify the allegations and exceptions contained in the complaint and in the answer, but they can not change those which are the principal object of the action.' ART. 548. In the replications and rejoinders each party shall clearly admit or deny the material allegations contained in the pleadings of the opposite party. Silence or evasive answers may be considered in the judgment as a confession of the facts to which they refer. They may also request, by a supplementary prayer (otrosi), that the action be decided without further proceedings, or that evidence be taken therein.2 SECTION IV.-Admission of evidence, time within which to be taken, -and general provisions relating thereto. ART. 549. The judge shall order that evidence in the action be taken in case that all the litigants request it. If any litigant should object thereto, a day shall be fixed for hearing the question of submission for the taking of evidence, at which hearA complaint relating to a sum of money is not modified when a sum of money received subsequently is acknowleeged and deducted in the replication.-Decision of March 9, 1885. In the replications and rejoinders, the parties may add to or modify the claims 9 contained in the complaint and in the answer.-Decision of February 10, 1886. The petitions deduced in the complaint and in the answer subsist, and they can not be considered modified by the replications and rejoinders, if it be not expressly requested or stated, or when it can not be inferred as a necessary consequence of the points of fact and of law indicated in said instruments.-Decision of October 14, 1866. a Law 2, Title XVI, Book XI of the Novisima Recopilacidn, which permits judgment to be rendered after the truth has been arrived at, is not observed since the publication of the law of civil procedure; as the supreme court has repeatedly stated.-Decisions of June 26, 1866, and December 27, 1864. According to Law 25, Title II, Partida 3, although the plaintiff when he determines the reason upon which he bases his claim to a thing, afterwards bases his claim upon another reason, but he can not do so in the replication and rejoinder, nor in the second instance, but he may do so in a new action, upon the closing of the previous one.-Decision of May 21, 1861. The points of fact and of law must be definitely fixed in the replications and rejoinders and new exceptions can not afterwards be pleaded, nor if they are pleaded, can they be taken into consideration.-Decisions of May 21, 1859, and &ptember 22, 1865. The complaint may be extended in the replication, but there can not be deduced in the same a petition and a new action entirely different from that deduced in the complaint.-Decision of December 26, 1878. 2The lack of a replication does not constitute either an acknowledgment nor an implied confession of the facts alleged in the answer to the complaint.--Decision of y March 24, 1885. The facts alleged in order to prove or deny the complaint should be proven by those who advance them.-Decision of April 18, 1887, and November 18, 1887.

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LAW OF CIVIL PROCEDURE. ing the attorneys of the parties, if present, may be heard, the judge deciding what he may deem proper. ART. 550. The ruling by which evidence is ordered taken can not be appealed from; the ruling by which the taking of evidence is refused may be appealed from for a review and stay of proceedings.1 ART. 551. If the litigants should have agreed to submit the case for judgment without the taking of evidence, the judge shall order that the record be brought before him and shall cite the parties to appear for judgment. ART. 552. The ordinary period forthe taking of evidence shall be divided into two parts common to all parties. The first period of twenty days, which can not be extended, shall be for the purpose of stating in one or more written instruments all the matters upon which they desire evidence to be taken. The second period of thirty days, which can not be extended either, shall be for the purpose of taking all the evidence proposed by the parties. Within these periods the judge may, in view of the circumstances of the case, grant such time as he may deem sufficient therefor, which shall not be less than ten days for the first, nor fifteen days for the second period, but he shall extend said periods of time to the maximum when any of the parties request it. ART. 553. The periods mentioned in the foregoing article can not be suspended, except by reason of force majere which prevents the submission or the taking of evidence within the same. This provision shall be applicable to the extraordinary periods of time for the taking of evidence referred to in the following articles.2 ART. 554. The extraordinary period for the taking of evidence shall be granted if it is to be taken outside of the islands of Cuba and Porto Rico or of their adjacent ones.3 ART. 555. The extraordinary periods shall beFour months if the evidence is to be taken in the islands of Cuba and Porto Rico reciprocally, or in the other Antilles. Six months if in Europe or the Canary Islands. Eight months if on the continents of America, or Africa, or ports of the Levant. 1 From an improper ruling refusing to allow evidence to be taken an appeal for annulment of judgment lies, in a proper case, for breach of form when a final judgment is rendered, but not for a breach of law.-Decision of October 11, 1886. The refusal to suspend the period for the taking of evidence cannot be considered as equivalent to a refusal to admit evidence.-Decision of May 12, 1886. The suspension of the period can not be considered as a proceeding for the taking of evidence of those specially mentioned in the law, and which refusal may give rise to an appeal for annulment of judgment by reason of a breach of form.-Deision of March 28, 1888. 3A litigant may take advantage at the same time as his adversary of the extraordinary period granted upon the petition of the latter.-Decision of April 8, 1861. 115

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LAW OF CIVIL PROCEDURE. One year if in the Philippines, or in any other part of the world not herein mentioned. ART. 556. In order that the extraordinary period may be granted, it is necessary: 1. That it be requested within the three days following that on which notice of the ruling is served which orders that evidence be taken. 2. That the acts, evidence of which is to be taken outside of the territory of the islands of Cuba and Porto Rico and the adjacent ones, occurred in the country where it is desired to procure the evidence. 3. That when the evidence to lie taken is of witnesses, the residences of the witnesses to be examined be stated in addition to the provisions prescribed in article 639. 4. That there be stated, in case the evidence to be taken is documentary, the archives in which said documents are recorded from which certificates are to be taken, and that they are pertinent to the action. ART. 557. An extraordinary period must also be granted even if the acts occurred within the islands and the adjacent ones, if the witnesses who are to testify concerning the same are at any of the places mentioned in article 555. In this case the names and residences of the witnesses must be stated in the petition. ART. 558. The petition requesting that an extraordinary period be granted shall be referred to the opposite party for a period of three days, which can not be extended, and without further proceedings the issue shall be decided. ART. 559. The ruling granting, or refusing to grant the extraordinary period, may be appealed from for a review only. ART. 560. The extraordinary period for the taking of evidence shall commence to run at the same time as the ordinary period, but shall commence to be counted from the day following that on which notice of the ruling in which the same was granted, is served. ART. 561. The litigant to whom an extraordinary period has been granted, and who does not take the evidence designated, shall be adjudged to pay to his adversary an indemnity which shall not be less than 1,250 pesetas nor more than 12,500 pesetas, as the judge taking cognizance of the action may determine, unless it should appear that the said party was not to blame therefor, or unless said party should waive the taking of said evidence before the expiration of the ordinary period. This indemnity shall be imposed in the final judgment. 1The imposition of a fine upon the party who has secured unjustly the grant of the extraordinary period for the taking of evidence, is not sufficient for an appeal for annulment of judgment, because, in addition, this measure referring to procedure, the fact of not having secured the evidence by the faults of the party requesting the extraordinary period, is to be determined by the court passing judgment.-Decision of March 11, 1889. 116

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LAW OF CIVIL PROCEDURE. + AA. 562. If after filing the replication and rejoinder some important fact, material to the decision of the case, should occur, or if any like fact of prior date comes to the knowledge of any of the parties, to which they swear that they had no previous knowledge, they may allege such facts clearly in writing during the first period designated for the admission of evidence, which shall be called a supplementary pleading.' ART. 563. A copy of the supplemental pleading shall be given to the opposite party, in order that within the three days following its delivery he may fully admit or deny the fact or facts therein alleged. At the same time he may allege other facts which may elucidate or controvert the facts set forth in the supplementary pleading.2 ART. 564. The evidence submitted shall confine itself to the definite allegations contained in the replication and rejoinder, or to those contained in the complaint and answer, and in those of the supplementary pleading in a proper case, which have not been fully admitted by the party prejudiced thereby.3 ART. 565. Judges shall on their own motion reject all evidence contrary to the provisions of the preceding article, and all other evidence which in their judgment is immaterial or impertinent.' ART. 566. There shall be no remedy whatsoever against the decisions allowing proceedings for the taking of evidence. Against decisions refusing the taking of evidence the only remedy shall be an application for a rehearing if interposed within five days, and if the judge should not admit it the interested party may make a similar application in the second instance. ART. 567. If proceedings for the taking of evidence are requested within the last three days of the first period, the opposite party may, 'Article 562 of this law refers alone to the different steps in a cause, and its violation can not give rise to an appeal except for breach of form.-Decision of January 9, 1884. 'It should be remembered that the admission of evidence in the second instance can be granted only when it was impossible to take the evidence in the first instance, owing to lack of time; but it can not be alleged when it has been proposed and taken during the period fixed by the law of civil procedure.-Decision of March 10, 1878. 'The allegations contained in the answer to the complaint have the force of proof, because, according to law, one party is relieved of the necessity of proving the facts which the other acknowledges in writing.-Decision of February 20, 1880. According to Law I, Title XIV, Partida 3, and repeated decisions of the Supreme Court, evidence as to the facts whose truth is acknowledged by all parties is unnecessary; and the defendant having consented that there should be included in the inventory of an estate the rents of certain properties, evidence of such fact is not necessary, and the judgment absolving the defendant because the plaintiff did not prove the same, violates the aforementioned law.-Decision of October 29, 1881, and October 17, 1882. 4 Evidence that can not be taken should be considered impertinent, and of this class should be considered that which has for its object the taking copies of several particulars contained in preliminary proceedings or causes, provisionally suspended, because this would be equivalent to violating the secrecy of the preliminary proceedings.-Decision of 11ay 16, 1888. 117

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LAW OF CIVIL PROCEDURE. within the three days after a copy of said request is delivered to him, present such evidence relating to the same facts as he may deem proper. After the expiration of the latter period, or otherwise, upon the expiration of the twenty days prescribed in the second paragraph of article 552, the first period for the taking of evidence shall be definitely closed, and an order shall be made opening the second period.' ART. 568. Judges shall examine all documentary evidence submitted in the order in which it is presented. They shall immediately issue compulsory orders, letters rogatory, and all other process which may be necessary for the taking of evidence beyond the seat of the judicial district; but they shall not be delivered to the interested party until after the decision opening the second period is rendered, and until after the clerk shall have entered an endorsement upon said decision, showing the period granted for the taking of evidence and the day on which said period commences. ART. 569. All proceedings for the taking of evidence, including that of witnesses, shall be public after a citation of the parties twenty-four hours in advance, the litigants and their attorneys being permitted to be present.2 ART. 570. The party to whom they belong shall not be previously cited to appear at the examination of the books and papers of the litigants. The examination of documents shall always be made in the presence of the interested party or of a member of his family, and, in their absence, in the presence of two witnesses, residents of the same town. ART. 571. Notwithstanding the provisions of article 569, the judges may order that such evidence as would produce scandal, or offend public morals, be taken behind closed doors, always allowing the parties and their attorneys to be present. ART. 572. The judge shall, at a reasonable time beforehand, fix a day and hour for the taking of any evidence that should be given before him. ART. 573. The parties may designate a person to represent them at the taking of evidence beyond the place of the residence of the judge. This appointment shall be expressed in the letters requisitorial, letters rogatory, or communication addressed for that purpose. In such case, the court or judge to whom said communication is addressed, shall appoint a day or hour for the taking of said evidence, and shall cite the person or persons designated to appear, if they be residents of that place or have entered an appearance. 1 Against these decisions no appeal shall lie except an application for a rehearing, and if this is not made nor advanced in the second instance, an appeal for annulment > of judgment shall not be allowed.-Decision qf June 15, 1885. 2 Evidence must be taken before the courts and according to the formalities prescribed by law.-Decision of April 2, 1887. 118

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LAW OF CIVIL PROCEDURE. ART. 574. The parties and their attorneys who appear at the proceedings for the taking of evidence shall simply attend the same, and shall not intervene therein in any other manner than that prescribed for each class of evidence. Any person violating this rule shall be admonished by the judge, and if he persist in his disobedience the judge may deprive him of his right to be present. ART. 575. A separate record shall be made of the evidence of each of the parties, which shall afterwards be attached to the main record. ART. 576. All proceedings for the taking of evidence held after the expiration of the second period prescribed therefor, shall be null and void. SECTION. V.-Jfeans of proof. ART. 577. The means of proof which may be employed in an action are the following: 1. Confession in court. 2. Formal public documents. 3. Private documents and correspondence. 4. Commercial books kept as prescribed in section 2, title 2, book 1, of the Code of Commerce.' 5. Opinions of experts. 6. Judicial examination. 7. Witnesses.' 1.-Confession in court. ART. 578. From the time the action is submitted for the taking of evidence until the citation for judgment in the first instance, every litigant is obliged to make his statement under oath when the opposite party requires it. This shall be understood without prejudice to the provisions of number 1 of article 496.3 ART. 579. These statements may be made at the election of the party requesting them, under a decisory or indecisive oath. 1 This reference is to the old code. The code in force treats of the subject mentioned in the present article, in Title III of Book I (articles 33 to 49, inclusive). 'It can not be said that article 577 of this law or article 42 of the Code of Commerce is violated, when the judgment is not based alone on the evidence taken from the commercial books which lack some of the legal requisites in order to be admitted as conclusive evidence.-Decision of January 9, 1884. 'The confession made in court must be related to the other replies given by him who confesses, and also with all the other evidence.-Decision of November 12, 1884. The adjudging chamber is authorized to weigh the evidence as it may deem proper, but can not pass it by or deny it.-Decision of March t2, 1889. 119

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LAW OF CIVIL PROCEDURE. In the first case said testimony shall be considered full proof even though there be additional evidence. In the second case it shall prejudice only the person who testifies.1 ART. 580. The interrogatories shall be in writing, stated with clearness and precision in the affirmative sense, and must be confined to facts pertinent to the issue. The judge shall, ex offoio, reject all questions not possessing these requisites. No copy of the interrogatories shall be attached to the original. ART. 581. The person interested may present his interrogatories in a sealed envelope, which the judge shall keep unopened until appearance is made to reply thereto. The presentation of the interrogatories may be delayed until appearance is made to reply thereto, a request being made to cite the party whose testimony is required, to appear for that purpose. ART. 582. The judge shall fix the day and hour upon which the parties shall appear for the purpose of answering the interrogatories. The person who is to testify shall be cited at least one day before the hearing. If he fails to appear or show good cause for nonappearance, he shall again be cited to appear at another stated day and hour, with the admonition that if he does not then appear, his absence shall be taken as a confession. ART. 583. At the time of the appearance the judge shall, decide on the admission of the questions, whether presented under sealed cover or at the time of the appearance, and shall then proceed to the examination of the party who is to answer thereto upon each question admitted. ART. 584. The witness shall personally answer viva voce in the presence of the opposite party and his attorney, if attending. The witness can not make use of any prepared draft of his replies, but he shall be permitted to consult at the time simple notes or memoranda, when, in the opinion of the judge, they may be necessary to refresh his memory. ART. 585. The answers must be affirmative or negative, the witness being permitted to make such explanations as he may deem proper or those which the judge may request. If he refuses to testify, the judge shall admonish him at once that if he refuses to answer it shall be taken as a confession on his part. If the answers should be evasive, the judge shall, eo oficio or at the instance of the opposite party, likewise admonish him that the facts 1 Confession in court made with all necessary requisites constitutes full proof against him who makes the same.-Decision of November 18, 1886. 120

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LAW OF CIVIL PROCEDURE. about which he refuses to give categorical or direct answers shall be accepted as confessed.' ART. 586. A witness may refuse to answer a question when it refers to a fact of which he has no personal knowledge. Only in such a case may interrogatories be answered by a third person having personal knowledge thereof, by reason of having acted on behalf of the person interrogated, if the latter should request it, and accepts the liability therefor. ART. 587. If the party proposing the interrogatories should be present at the time the testimony is taken, both parties may reciprocally and in person, without the intervention of their attorneys or solicitors, and through the judge, ask each other such questions and make such remarks as the judge may deem proper for discovering the truth of the facts, but without interrupting each other. The judge may also request such explanations as he may deem conducive to this end. ART. 588. The clerk shall make a record of the proceedings, in which shall be inserted the testimony given, which may be read by the person giving the same. Otherwise the clerk shall read it, the judge then asking said witness if he ratifies said testimony, or whether he has anything to add or change; his statements shall then be added to the proceedings, after which they shall be signed by the witness, if he is able to do so, and by the judge and the others present, and shall be certified to by the clerk. ART. 589. When two or more litigants are required to answer to the same interrogatories, the judge shall adopt, if the person interested requests it, the precautions necessary to prevent them from having any communication with each other, or advise each other beforehand as to their contents. ART. 590. If, on account of the illness of the litigant or other special circumstances, he can not appear to answer the interrogatories, the judge may, if he deems it proper, go to the house of said litigant, together with the clerk, in order to take his evidence. In such a case the opposite party can not be present; but he may examine the testimony, and may request that within three days a reexamination be made in order to elucidate some doubtful point with regard to which no categorical answer had been given. ART. 591. A litigant residing within the judicial district may be 1The provisions of the law of civil procedure with reference to considering as confessed the litigant who refuses to reply to questions, is applicable in an ordinary action as well as in an issue of poverty.-Decision of February 18, 1870. The "cognoscencia" to which Law 2, Title 13, of Partida 3 gives and attributes the value of full. proof is the judicial, explicit, and absolute confession; but not that which is limited to but one part of the complaint, denying at the same time the validity of the remainder, which in a particular manner constitutes the essential basis of the alleged action or exception pleaded.-Decision of June 22, 1878. 121

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LAW OF CIVIL PROCEDURE. obliged to appear before the judge taking cognizance of the cause, in order to give his testimony, unless, in the opinion of said judge, there is a good cause which prevents him from so doing. In such case, as well as when he lives beyond the judicial district, he shall be examined by means of a commission or letters rogatory, to which shall be attached the interrogatories, after being approved by the judge, and inclosed in a sealed envelope, which shall be opened at the time of taking the declaration. AnT. 592. If the person whose declaration is to be taken does not appear upon the second citation without giving a good cause for his nonappearance, or if he refuses to testify, or answer either affirmatively or negatively, notwithstanding the admonition addressed to him, such action may be considered as a confession in the final judgment. ART. 593. New interrogatories can not be demanded concerning facts which have already been the object of previous ones. Neither can such deposition be demanded more than once by either party after the expiration of the period for the admission of evidence. ART. 594. In actions in which the State or any corporation thereof is a party, the public prosecutor, or the person representing said party, shall not be required to testify. In lieu thereof, the opposite party may submit in writing the questions he may desire to ask, which shall be answered by means of a report prepared by the employees of the administration having knowledge of the facts. These communications shall be addressed through the person who represents the State or corporation, who is obliged to file the answer within the period which the judge may fix. 2.-Public documents. ART. 595. Under the name of formal public documents are included: 1. Public instruments drafted according to law. 2. Certificates issued by exchange and commercial brokers, of entries contained in the record of their respective transactions in the manner and with the formalities prescribed by article 64 of the Code of Commerce and by special laws.1 1 This reference is evidently to the old Code of Commerce, and the code at present in force contains the following: Art. 93. The licensed agents shall have the character of notaries in all that refers to the negotiation of public instruments, industrial and commercial securities, merchandise, and the other commercial acts included in their office in the respective center, They shall keep a registry book in accordance with the prescriptions of article 386, entering therein in proper order, separately and daily, all the transactions in which they may have taken part, being moreover permitted to keep other books with the same formalities. The books and policies of licensed agents shall be admitted as evidence in suits.Code of Commerce in force in Cuba, Porto Rico, and the Philippines. See in addition article 58 of the Code of Commerce in force, and also number 2 of article 596 of the present law. 122

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LAW OF CIVIL PROCEDURE. 3. Documents issued by public officials who are authorized to issue the same in the exercise of their official duties. 4. Record books, by-laws, ordinances, registers, poll and property statistics, and other documents in public archives or depending on the State, provinces, or towns, and copies made and authenticated by the secretaries and archivists, by order of the proper authorities. 5. The ordinances, by-laws, and regulations of companies, corporations, or associations, providing they have been approved by public authority, and copies certified to in the manner prescribed in the foregoing number. 6. Records of certificates of births, marriages, and deaths taken from the registers by the parish priests, or by the persons in charge of the civil registers. 7. Writs of execution and all kinds of judicial proceedings. 'Instruments transferring ownership can not be admitted or have any effect in a cause unless registered in the registry of property.-Decision of October 22, 1857. Copies of records issued by parish priests may be questioned for lack of due form.Decision of September 10, 1864. When a decision is rendered absolving a defendant owing to the fact that the documents presented by the plaintiff were not recorded in the registry of property, the case may be opened again with reference to the same subject after the defects contained in the documents have been cured without an exception of res judicata being permissible.-Decision of December 27, 1869. In giving more value to a will, in which a child is declared and acknowledged as a natural child of the testator and the same is constituted heir, than to the baptismal register, in which it appears that the child is the natural child of another, is not a violation of the law of civil procedure.-Decision of January 14, 1878. .The law of civil procedure only indicates the means of proof which the litigants may employ in a cause, and defines those included under the name of formal public documents without specifying as to their intrinsic efficacy compared with others.Decision of December 81, 1877. All the documents which in the last century were issued in the territory of Mal1orea without the formalities required by the Nocisina Recopilacidn, Law 1, Title 23, Book 10, were and are valid according to the custom which obtained in said place and at that time and, by virtue of which, they are of force both within and out of court.-Decision of February 20, 1878. The decisions which declare a right, although with the clause "without prejudice to a third person," may be an element of proof which may be employed by those who were not parties to said cause.-Decision of June 28, 1882. Although the baptismal registries are public documents, their value as evidence does not go beyond proving the act itself, and does not prove others, which must be proven by other evidence.-Decision of April 8, 1884. Opinions submitted by experts in a cause do not have the character of a public document.-Decision of October 1, 1884. With reference to number 2 of this article, see articles 36, 93, 102, and 103 of the Civil Code in force. When it is impossible to present or find certain parish registers, the court may form its judgment on the strength of the ones presented, or from other evidence.-Deision of October 10, 1889. The certificate given by the director of an asylum or hospital for the insane, stating 1.23

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LAW OF CIVIL PROCEDURE. ART. 596. In order that formal public documents be valid in an action, the following rules must be observed: 1. When presented in an action without citation served upon the opposite party, they must be compared with the originals prior to said citation, if their authenticity or exactness is questioned by the party prejudiced thereby. Otherwise they shall be considered genuine and effective without the necessity of such comparison. 2. When they are to be included in the record in accordance with the provisions of article 504, or in the cases mentioned in article 505, they must be issued by virtue of a compulsory order made therefor after the party prejudiced thereby has been cited to appear. 3. That if the certificate requested should be but a part of a document, there be added thereto the part the opposite party may request, should he deem it proper. Such request shall be made at the time the certified copy is issued, and the party requesting the same shall pay the added cost thereof, without prejudice to what may finally be decided as to the payment of costs. 4. The transcripts or certified copies must be furnished by the custodian of the archives, office, register, or protocol in which the documents are filed, or by the clerk in charge of the judicial records, or otherwise by the clerk of the court before which the action is pending. Such transcripts and certified copies shall be issued under the official liability of the custodians of the originals, and the intervention of the that a certain person had been admitted thereto on a certain day and died there, is only valid in a cause to prove what is stated, that is, the fact that the person mentioned in the certificate remained in the asylum for the insane the time mentioned, and although from this fact the presumption of insanity arises, in order to be duly considered, it should be supported by special and direct proof.-Decision of February 14, 1868. After the parish priests issue copies of their registers, their functions cease, and the contents of said copies cannot be altered except by order of the competent legal authority.-Decision of April 16, 1864. The facts which were formerly proven by the parish registers are now proven by a certificate of the civil register; and have been since the law of June 17, 1870, which is in harmony with the civil code. Law 5, title xxiv, book 10 of the Novisima Recopilacion is violated when contracts contained in public instruments are not given preference over those contained in private documents, although the latter be written on stamped paper.-Decision of November 21, 1872. The certificate issued with reference to the poll of residents of a town in order to prove that the plaintiff was a servant of the person alleged to have employed her, and who makes claim for wages, does not prove that there was any contract between them, for, according to the practice established by the supreme court, the documents of the class to which said certificate belongs only proves the fact of the record and in no manner whatsoever the statement or claims contained therein with reference to prior and distinct acts.-Decision of October 14, 1882. 124

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LAW OF CIVIL PROCEDURE. parties in interest shall be limited to designate what is to be transcribed or certified to, and to be present at the comparison thereof.' ART. 597. The following documents shall be valid without comparison, reserving contradictory evidence and the provisions of article 606: 1. Writs of execution and certified copies or transcripts of final judgments, issued in legal form by the court making the same. 2. Ancient public documents which are not of record and all those whose protocol or original may have disappeared. 1 The violation of this article is not a sufficient ground for an appeal for annulment of judgment.-Decision of October 18, 1882. Article 596 of the law is not violated when the authenticity or exactness of some documents has not been questioned formally and in due time.-Decision of October 8, 1885. According to the doctrine admitted in practice no document can be made a public instrument without the citation of the persons interested who may be prejudiced thereby, or without a judicial order in a proper case.-Decision of hune 12, 1882. Although it is true that according to law 114, Title XVIII, part. 3, public instruments are valid as evidence in suits, they do not legalize contracts made contrary to other laws.-Decision of April 9, 1881. This article does not determine the legal value of the documents which the parties may present in aft action, but their efficacy by reason of the form in which they have been presented:-Decision of February 15, 1864. There is no difference between the first or subsequent copies of public instruments unless a first copy being in question the comparison requested with the original can not be made because the latter has been lost.-Decision of June 8, 1866, and May 24, 1860. According to the spirit of law 2, Title XVI, Book X of the Novisima Recopilaci6n, in the event of the registries and protocols having been lost, full faith and value should be given to the first copy of a public document taken from the true original by the same notary who authorized it when falsity or any defect other than the lack of verification or comparison is not alleged.-Decision of January 26, 1866. In order that public documents be valid in a cause, it is not sufficient that they have been drafted according, to the prescriptions of law 114, Title XVIII, Partida 3, but it is also necessary according to article 281 of the law of civil procedure, that those which have been presented in a cause without citation be compared with th.e originals, unless the person who may be prejudiced thereby has given his express consent, or their authenticity is proven by other means.-Decision of Noceniber 15, 1880, and November 2, 1888. Article 281 of the law of 1855 did not require a comparison when the document was presented by express consent, and article 597 of the law of 1881 only requires the comparison when its authenticity or exactness had been expressly questioned. Therefore, as formerly express consent was necessary, now an implied consent is sufficient. Letters signed by the hand of a notary public with the formalities and other requisites of law 114, Title XVIII, Partida 3, are complete evidence of ownership, if there is no doubt as to their authenticity and they contain no erasures which would invalidate them according to other laws of the title and partida cited.-Decision of March 16, 1878, January 2s, 1878, and April 29, 1878. 125

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LAW OF CIVIL PROCEDURE. 3. Any other formal public document which by its nature has no original or recorded copy with which it may be compared.' ART. 598. The comparison or verification of public documents with their originals shall be made by the clerk, who must go for the purpose to the archives or place where the original is kept, the day and hour being previously determined, and perform his duty in the presence of the parties and their attorneys, should they attend. The judge may also in person make a comparison, if he considers it proper.2 ART. 599. Documents executed in other countries shall have the same validity in an action as those executed in Spain, providing they possess the following requisites: 1. That the subject matter of the act or contract be lawful and permitted under the laws of Spain. 2. That the contracting parties have legal power and capacity to contract according to the laws of their own country. 3. That in the execution thereof all formalities and requirements prescribed in the country wherein the acts or contracts were made have been observed. 4. That the document be legalized and possess the other requisites necessary to prove its authenticity in Spain. ART. 000. To every document drafted in any language other than Spanish there shall be accompanied a translation thereof, and copies of both the original and translation. Said translation may be made privately, in which case, if any of the parties question it within three days, stating that he does not consider it a true and faithful translation, the document shall be transmitted for translation to the official in charge of this service in the general government in the islands of Cuba and Porto Rico, respectively, and should there be none, to the colonial department through the respec1 The fact of not having executed an instrument on the proper stamped paper does not affect its quality or validity.-Decision of May 26, 1867. 2 The ruling which denies the admission of documents in certain proceedings is not final.-Decision of April 6, 1885. The act of comparing certain obligations with the still) book from which they were taken, is merely preparatory to the final judgment and is not a proceeding for the taking of evidence, which gives rise to an appeal for annulment of judgment when denied.-Decision of November 4, 1885. With reference to documents issued in a foreign country, consult the royal decree of October 17, 1851, and article 35 of the royal decree of November 17, 1852, with reference to aliens. The treaties which the Spanish Government has celebrated with other countries should also be consulted. When the documents which come from abroad are forwarded by vice-consuls or consular agents who do not correspond directly with the Secretary of State they should also be signed by the head of the legation or the respective consul.-Circtlar of Jime 7, 1859, to which reference is made in the decision of Jine 30, 1866. 126

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LAW OF CIVIL PROCEDURE. tive governor-general, in order that it be translated by the bureau of translations. 3.-Private documents, correspondence, and books of merchants.1 ART. 601. The original private documents and correspondence in the possession of the litigants shall be presented and attached to the records. When they form part of a book, proceedings, or package, the whole thereof shall be exhibited in order that certified copies of suck parts as the persons interested may designate may be made therefrom. The same method shall be observed with regard to documents in the possession of a third person who declines to allow them to leave his possession.2 See articles 1225 to 1230 of the Civil Code. 2According to laws 114 and 11.9, Title XVIII, Partida 3, for the validity and force in action of private documents, the testimony of witnesses must be taken after the documents have been submitted, even of those who attended the proceedings and whose names appear in the documents.-Decision of February 8, 1858. Law 119, Title XVIII, Partida 3, which does not consider sufficient proof the comparison of a private document with others of undoubted validity to show the authentic character of the former, refers to the case wherein the one who signed it afterwards denies it.-Decision of May 9, 1868. Although a private document has not in itself legal validity to prove the transfer of ownership of real estate, according to law 114, Title XVIII, Partida 3, which requires for this class of contracts the execution of a public instrument, said law can not be considered violated by a judgment which gives weight to such a private document when the truth of its contents has been proven by the acknowledgment of the vendor and that of the witnesses who took part in its execution.-Decision of January 28, 1865. Private documents are evidence against the subscriber thereof when he acknowledges the same, as provided by law 119, Title XVIII, Partida 3. This doctrine, however, is not applicable to dowry instruments when they prejudice a third person, in which case the delivery of the dowry must be proven in another manner, aside from the simple admission of the husband that he received it.-Decision of June 20, 1865. Only in treating of the comparative value of a private document as against a public document is law 31, Title XIII, Partida 5, applicable.-Decision of June 20, 1865. In order that private documents be valid against those who wrote them or who ordered them written, they must be acknowledged by their authors or it must be proven that they were made at their orders, as prescribed in law 114, Title XVIII, Partida 3. Credit entries in books made from memory can not prejudice the person who did not make or authorize them to be made, according to law 121 of the above-mentioned title and code.-Decision of June 19, 1867. Law 4, Title XXVIII, Book XI, of the Novisima Recopilacidn is repealed by the Law of Civil Procedure, and although article 1429 of said procedure contains the same provision, it should be remembered that, according to the express declaration of the Supreme Court the legal value of private documents acknowledged before a judicial authority gives them no more weight and virtue in ordinary causes than that which 1297

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LAW OF CIVIL PROCEDURE. ART. 602. Persons not parties to an action shall not be compelled to exhibit private documents belonging exclusively to them, reserving the right of the person needing the same, which he may exercise in the proper action. If said persons are disposed to exhibit them voluntarily, they shall not be compelled to present them at the clerk's office, and if they request it, the clerk shall go to their residences or offices to make certified copies thereof.1 ART. 603. Private documents and correspondence shall be acknowledged or denied under oath before the judge by the person prejudiced thereby, if requested by the opposite party. Such acknowledgment shall not be necessary if the person prejudiced by said document shall have acknowledged its authenticity in his answer, replication, or rejoinder. ART. 604. When commercial books are to be employed as evidence, the provisions of articles 51 and 52 of the Code of Commerce shall be observed, and they shall be exhibited at the place of business or office where such books are kept.2 of right belongs to them when questioned by a third person.-Decision of June 18, 1879. Law 119, Title XVIII, Partida 3, in so far as it relates to the suppletory proof of private documents, when not acknowledged by the person who executed the same, is repealed by the Law of Civil Procedure, and in such case any of the means of proof authorized by the latter may be employed, for the purpose of proving the legitimacy of the document and the existence of the contract contained in the same.-Decision of December 27, 1881. A private document can produce no effect in a cause in which final ruling has been rendered declaring it not admissible.-Decision of November 19, 1880. Private documents are valid whose falsity has not been questioned when the attesting witnesses who subscribed the same at their execution acknowledge them, even when one of those who executed the same may have died.-Decision of October 2, 1888, and December 3, 1889. 'The syndics as representatives in bankruptcy proceedings and of the bankrupt have the right, in the discharge of their duties, to request the necessary data of persons or of judicial entities with whom the bankrupt may have had business relations. Articles 602 and 603 of the Law of Civil Procedure are not applicable when treating of merchants with regard to whom the special provisions of article 21 of the Code of Commerce are applicable.-Decision of December 20, 1888. 'The law in force mentioned in this article are articles 45 to 49 of the Code of Commerce of 1885.-Decision of December 20, 1888. The articles referred to in the foregoing decision are as follows: ART. 45. No official inquiry can be instituted by judges or courts nor any authority in order to ascertain if merchants keep their books in accordance with the provisions of this code, nor any general investigation or examination of the bookkeeping in the offices or counting houses of merchants. ART. 46. Neither can the general communication, delivery, or inspection of the books, correspondence, and any other documents of merchants be decreed at the instance of a party, except in case of liquidation, universal heirship, or bankruptcy. Am. 47. With the exception of the cases mentioned in the foregoing article, the exhibition of the books and documents of merchants can only be decreed, at the 128

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LAW OF CIVIL PROCEDURE. 129 4.-Comparison of handwriting. ART. 605. Comparison of handwriting may always be requested whenever its genuineness is denied by the person prejudiced thereby, or when a doubt is raised as to the authenticity of any private or public document, an original, of which does not exist and which can not be verified by the official who issued the same. Said comparison shall be instance of a party, or officially, when the person requesting it has any interest or liability in the question in which the exhibition is to take place. The inspection shall be made in the counting house of the merchant, in his presence, or that of the person he may designate, and shall be limited exclusively to the points which relate to the matter in question, said points being the only ones which may be verified. ART. 48. In order to graduate the weight of evidence of books of merchants the following rules shall be observed: 1. Books of merchants shall be evidence against themselves, no proof to the contrary being admitted; but the opponent can not accept the entries which are favorable to him and reject those which prejudice him; but, having admitted this means of evidence, he shall be subject to the results which they may conjointly entail, taking into equal consideration all the entries relating to the matter in litigation. 2. If the entries of the books exhibited by two merchants should not conform, and those of one of them have been kept with all the formalities mentioned in this title and those of the other contain any defects or lack the requisites prescribed by this code, the entries of the books correctly kept shall be admitted against those of the defective ones unless the contrary is demonstrated by means of other proofs legally admissible. 3. If one of the merchants should not present his books or should state that he does not possess any, those of his adversary, kept with all the legal formalities, shall be evidence against him unless it is proven that the lack of said book is caused by force majeure, and always reserving the evidence against the entries exhibited, by the other means legally admissible in suits. 4. If the books of the merchants possess all the legal requirements and are contradictory, the judge or superior court shall determine by the rest of the evidence, classifying it according to the general legal rules. ART. 49. Merchants and their heirs or successors shall preserve the books, telegrains, and correspondence of their business in general for the entire period which the latter may last, and until five years after the liquidation of all their commercial transactions and business. Documents which specially relate to certain acts or transactions may be rendered useless or destroyed after the time of the limitation of the actions which could be brought by virtue thereof has elapsed, unless some question referring to the same directly or indirectly is pending, in which case they must be kept until the conclusion thereof. See also the following articles of the same code: ART. 709. A bill of lading drawn up in accordance with the provisions of this title shall be proof as between all those interested in the cargo and between the latter and the underwriters, proof to the contrary being reserved by the latter. AnT. 710. Should the bills of lading not agree, and there should not be observed any correction or erasure in any of them, those possessed by the freighter or consignee signed by the captain shall be proof against the captain or agent in favor of the consignee or freighter; and those possessed by the captain or agent signed by the freighter be proof against the freighter or consignee in favor of the captain or agent. 5901-9

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LAW OF CIVIL PROCEDURE. made by experts, according to the provisions of the fifth paragraph of this section.' ART. 606. The person demanding the comparison shall designate the document or documents with which said comparison is to be made as to the authenticity of which there is no doubt. Should no such documents exist a public document shall be considered efficient, and with regard to private documents the judge shall take their value into consideration in combination with the other evidence. ART. 607. The following shall be considered as genuine for the purposes of comparison: 1. The documents which the parties acknowledge as such by common agreement. 2. Formal public instruments. 3. Private documents, the handwriting or signature of which has been acknowledged in court by the person alleged to be the writer thereof. 4. The portion of the document questioned, the handwriting of which is acknowledged by the person prejudiced thereby. In the absence of these means the party alleged to be the writer or subscriber of the document questioned may be required, at the instance of the opposite party, to write such sentences as the judge may dictate at the time. Should he refuse to do so, such refusal may be held as an acknowledgment of the authenticity of the document questioned. ART. 608. The judge shall himself make the comparison after hearing the experts thereupon, and he shall decide upon the result of this proof in accordance with the rules of sound judgment, without being obliged to subject himself to the opinion of said experts.2 5.-Opinion of experts. ART. 609. Expert testimony may be used when, in order to determine or consider some fact of influence in the action, scientific, artistic, or practical knowledge becomes necessary.' 1The comparison of signatures made by virtue of an order is not subject to the conditions established for these proceedings in the Civil Procedure, and therefore the decision rendered by virtue of a comparison made in the manner prescribed does not violate these provisions, although the documents employed for this purpose do not conform to the conditions established in the article mentioned.-Decision of April 20, 1877. 2Couts are not obliged to adjust their decisions to the opinions of experts, and less so when said opinions are deficient.-Decision of March 7, 1885. sA ruling denying the admission of expert testimony is not definite for the purposes of an appeal for annulment of judgment.-Decision of April 29, 1886. There is no breach of form when a petition that handwriting experts give testimony with regard to the sense, expression, and intention of a document is denied, which are facts which can and must be considered only by the court and with regard to which said experts are not competent.-Decision of Mfarch 22, 1888. The general principle of this article concords with article 1242 of the Civil. Code, and which in article 1243 refers to this law with regard to the value and manner of taking expert testimony. 130

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LAW OF CIVIL PROCEDURE. 131 ART. 610. The party who desires that expert testimony be taken, shall state clearly and precisely the matter with regard to which he desires expert testimony. In the same instrument he shall state whether oie or three experts are to be designated. ART. 611. Within the three days following that of the delivery of the copy of the instrument requesting said expert testimony, the opposite party or parties may briefly state what they may deem proper with regard to the pertinency thereof or its extension, in a proper case, to other questions at issue, and as to whether the number of experts is to be one or three. AR. 612. The judge, without further proceedings, shall decide what he may deem proper with regard to the admission of said testimony. Should he consider it pertinent he shall state in the same ruling upon what points the expert testimony is to be taken and whether it is to be given by one or three experts. With regard to the last point, he shall consider the number agreed upon by the parties, and should they not have agreed upon a number, he shall decide what be may. deem proper, without further remedy, taking into consideration the importance of the question and the amount involved in the action.' ART. 613. In the same decision by which expert testimony is ordered taken, the judge shall order the parties or their solicitors to appear before him at a day -and hour which he may fix, within the six days following, for the purpose of agreeing upon the expert or experts to be appointed. If a party should not appear it shall be understood that he agrees to the experts designated by the opposite party. ART. 614. The experts must have a diploma as such in the science or art to which the matter upon which they are to give their opinion belongs, if their profession is regulated by law or by the Government. Otherwise or should there not be experts of this class in the judicial district, if the parties should not agree to select them from another place, any person having a knowledge of the subject, even though he should have no diploma, may be selected.' 'A judge who should consider impertinent and unnecessary the expert testimony requested by a party in an action upon a letter which has already been acknowledged as genuine by its author and should refuse it, acts in accordance with the provisions of article 612 of the law of civil procedure.-Decision of December 13, 1888. 2 Agricultural experts may measure estates, whatever be their area, and appraise those whose area is not more than 30 hectares when judicial proceedings are in question.-Article 12 of the Regulations of October 14, 1887. The judicial examination of works, whether made judicially or extrajudicially, may be made by architects or builders; but when buildings of a public, character are in question the architects only can act.-Articles 2, 8, and 8 of the Royal decree of January 8, 1870. Expert appraisers of furniture, clothing, and jewelry do not require a diploma,

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LAW OF CIVIL PROCEDURE. ART. 615. When the parties do not come to an agreement with regard to the appointment of an expert or experts, the judge shall at once place in a box the names of three at least for each one to be designated from among those who pay in the judicial district an industrial tax for the profession or industry to which their occupation belongs, and those selected by lot shall be considered as appointed. Should there not be a sufficient number, the selection and appointment of the expert or .experts shall be made by the judge within two days after that of the appearance. ART. 616. The experts who at the time of the appearance may be challenged by any of the parties on account of any of the causes mentioned in article 620, shall not be included in the drawing, nor shall they, in a proper case, be appointed by the judge. ART. 617. After the expert or experts have been appointed they shall be informed thereof, in order that they may accept the same and take an oath that they will well and faithfully perform their duty within the limits which the judge may assign to them. ART. 618. The experts may be challenged for causes which arise subsequent to their appointment. Those selected by lot or appointed by the judge may also be challenged for causes arising prior to their appointment. ART. 619. The challenge shall be interposed in an instrument signed by the attorney and the solicitor of the party, and shall briefly state the cause of challenge and the means of proving the same. In the case of the first paragraph of the foregoing article, the written challenge must be filed before the day fixed for the beginning of the examination; in the second case, within two days after notice of their appointment has been served. ART. 620. The following are legitimate causes of challenge: 1. That the expert is a relative of the opposite party by consanguinity or affinity within the fourth civil degree. 2. That be has previously given an opinion upon the same question adverse to the challenging party. 3. That he has rendered services as such expert to the opposite litigant or that he is a partner or employee of the same. 4. That he has a direct or indirect interest in the action or another similar one or an interest in the company, establishment, or enterprise against which the challenging party is litigating. 5. Manifest enmity. 6. Intimate friendship. ART. 621. The judge shall, co instanti, deny the challenge if it is the judges being permitted to make use of the services of those whom they consider most proficient, provided that they are recorded in the proper registry (Royal order of November 15, 1887); but they can not use the services of those who are not registered.-Regulations of July 13, 1882, article 118. 132

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LAW OF CIVIL PROCEDURE. 133 not clearly based upon some of the causes mentioned in the foregoing article or if it should not have been presented with the formalities and within the periods fixed in article 619. ART. 622. After the challenge has been properly presented, the judge shall order that notice thereof be given to the expert challenged, in order that upon the notification he may state under oath, administered by the clerk, whether or not the clause upon which said challenge is basedis true. If he admits the truth of the cause, he shall be considered as challenged without further proceedings, and he shall be replaced by another appointed by the judge. ART. 623. When the expert denies the truth of the cause of the challenge, the judge shall order that the parties appear before him at the day and hour which he may designate, with the evidence which they may desire to present. If the challenging party does not appear, he shall be understood to have withdrawn the challenge. If all the parties litigant appear, the judge shall request them to agree upon the propriety of the challenge, and, in a proper case, upon the appointment of the expert who is to substitute the one challenged. Should they not come to an agreement, the judge shall admit the evidence which may be submitted, and shall attach the documents to the record, thereupon deciding what he may consider proper. If the challenge be sustained, the judge shall himself appoint another expert, if the parties should not have designated one by common agreement. A proper record of the results of these proceedings, which may be attended by the attorneys of the parties, shall be made and signed by all the parties present. ART. 624. When the challenge of an expert is disallowed, the challenging party shall, be adjudged to pay all the costs of this issue. He may also be adjudged to pay, by way of indemnity, to the party or parties, the amount which the judge may deem proper, not exceeding 500 pesetas. ART. 625. The parties and their counsel may attend the expert examination and make such suggestions to the experts as they may deem proper. For this purpose a day and hour shall be set for the beginning of this proceeding, if any of the parties should request it. When there are three experts, the examination shall be conducted by the three together. ART. 626. The experts, after conferring with each other, if there are three, shall make their report in writing or orally, according to the importance of the matter, stating their reasons therefor. In the first case they shall do so in the form of a statement, and in the second case the shall ratify it by an oath in the presence of the

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LAW OF CIVIL PROCEDURE. judge; they shall make either report immediately after the examination, and if this should not be possible, upon the day and at the hour which the judge may designate. ART. 627. The parties or their counsel may request, at the time of the statement or ratification, that the judge require of the expert or experts the explanations which may be proper for the elucidation of the questions. ART. 628. When there are three experts and they all agree, they shall give or draft their opinion in a single statement signed by all of them. If they disagree, they shall make as many statements or reports as there are opinions. ART. 629. The expert examination shall not be repeated, even though the insufficiency of the examination be alleged, or even if a majority or unanimous agreement has not been reached by the experts. Nevertheless, whenever the judge considers it necessary, he may make use of the privilege granted by article 340, and may order, in the furtherance of justice, that another examination be made, or that the previous one be extended by the same experts, or by others selected by him. ART. 630. At the instance of any of the parties, the judge may request a report of the proper academy, college, or corporation, when the expert opinion requires special scientific operation or knowledge. In such case said report shall be attached to the record and it shall produce its effects in the report, even though it should be made or received after the period for the admission of evidence has expired. ART. 631. The judges and courts shall consider the expert testimony according to the rules of sound judgment, without being obliged to subject themselves to the opinion of the experts.' 6.-Judicial iAspection.2 'Although the judge is not subjected to the opinion of the experts, when the expert opinion constitutes a means of evidence, he is obliged, on the contrary, to subject himself thereto if it is the result of an agreement between the parties with regard to any question at issue.-Decision of October 30, 1878. It would be a manifest error to give an obligatory and decisive character to the opinions mentioned in the foregoing article, because they only constitute one of the means of evidence, which is to be analyzed, classified, and weighed by the court.Decision of September 29, 1881. Art. 630 of the law of Civil Procedure grants full powers to the court to weigh expert evidence.-Decision of April 19, 1883. Courts are not obliged to subject themselves to the opinions of experts, and less so when said reports are deficient.-Decision of Mfarch 7, 1885. It is a principle of law sanctioned by various decisions that courts are not obliged to subject themselves to expert opinions, but that they can and must consider the same according to the rules of sound judgment.-Decision of June 15, 1887. See article 657 of this law. 2 See articles 1240 and 1241 of the Civil Code. 1.34

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LAW OF CIVIL PROCEDURE. ART. 632. If for the purpose of elucidating and weighing the facts, it should be necessary for the judge to personally examine some place or the thing which is the object of the litigation, a judicial inspection shall be made at the instance of any of the parties. In order to make this inspection, the judge shall fix, at least three days in advance, the day and hour when it is to take place. ART. 633. The parties, their representatives and attorneys, may attend the examination and ocular inspection and make such -verbal suggestions to the judge as they may deem proper. Each party may also be accompanied by a person familiar with the object or land. If the judge should deem it proper to receive suggestions or statements from these persons, he shall previously administer to them an oath to tell the truth. The clerk shall make the proper record of the result of these proceedings, which record shall be signed by the persons present and shall include, in addition, all pertinent suggestions made by either party and the statements of the persons familiar with the matter. ART. 634. When it is decided to make a judicial as well as an expert examination of a thing, both these proceedings to secure evidence shall be held simultaneously, in accordance with the rules established for each. ART. 635. The witnesses may be examined at the place of and immediately after the judicial inspection, when the inspection or view of the place contributes to elucidate their testimony, if this should be previously requested by a party in interest. 7.-Evidence of witnesses.1 ART. 636. None of the parties to an action shall be permitted to submit the evidence of witnesses for the purpose of corroborating the facts proven by judicial confession.2 ART. 637. To the instrument requesting the admission of this class of evidence there-shall be attached the interrogatory which contains the questions upon which the witnesses are to be'examined, with the necessary copies both of the petition and of the interrogatory. These questions shall be correlatively numbered and stated with clearness and precision, and must be confined to the questions at issue. ART. 638. The judge shall examine the interrogatory and admit the questions which may be pertinent and reject those deemed irrelevant. ART. 639. Within the ten days following that of the notification of the order admitting said evidence the person interested shall present a list of his witnesses, giving the name and surnames of each, their trade or profession, their residence and their addresses, if known. 1 See articles 1244 to 1.248 of the Civil. Code. 2 Courts must not consider the number of witnesses in weighing evidence, but the value which their statements deserve.-Decision of April 8, 1868. 135

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LAW OF CIVIL PROCEDURE. These lists may be enlarged within said period. A copy of the lists shall be given to the opposite party or parties, and no witnesses other than those mentioned therein can be examined. ART. 640. The litigants may present cross-interrogatories before the examination of the witnesses. The judge shall approve those that are pertinent and reject all others. These interrogatories may be presented under a sealed cover, which shall be opened at the beginning of the proceedings for the examination of the witnesses. Those which are presented unsealed shall be reserved in the custody of the judge under his personal liability. ART. 641. The judge shall, at least three days beforehand, fix a day and hour at which the examination of the witnesses of each party shall commence. These proceedings shall take place in open court in the presence of the parties and their counsel, should they attend the same. ART. 642. Witnesses residing within the judicial district who refuse to voluntarily appear to testify, shall be cited to appear by subpoena at least two days before that fixed for the examination, if the party interested should request it. The judge may, at the instance of any party to the action, issue such compulsory process against the witness who refuses to appear without just cause as he may consider would tend to compel his appearance, including that of being forcibly brought into court. ART. 643. The witnesses who may be compelled to appear according to the provisions of the foregoing article, shall have the right to demand of the interested party the assistance or the payment of the indemnity that may be proper. If there should be no agreement between the interested parties on the subject, the judge shall fix the amount without further remedy, taking into consideration the circumstances of the case, and he shall oblige the solicitor of the party to pay the same as costs in the action, if the witness should make a verbal demand therefor at the hearing in question, or during the next fifteen days. ART. 644. The litigants may present as many witnesses as they may desire without limitation as to number, but the costs and expenses of all witnesses exceeding six upon each point at issue, shall in all cases be paid by the person presenting such witnesses. ART. 645. The witnesses shall be examined separately and successively and in the order in which they are named in the lists, unless the judge should consider it proper to change such order. Witnesses who have testified shall not communicate with the other witnesses, nor shall the latter be present when the former are testifying. To this end the judge shall, at the request of any of the parties, adopt such measures as he may consider proper. 1386

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LAW OF CIVIL PROCEDURE. 137 ART. 646. Before testifying the witness shall take oath in the manner, and subject to the penalties prescribed by law. If the witness professes ignorance with regard thereto, the judge shall inform him of the penalties for the crime of giving false testimony in a civil cause. An oath shall not be administered to witnesses under fourteen years of age. ART. 647. Each witness shall be asked: 1. His name and surname, age, status, occupation, and place of residence. 2. Whether he is a relative by consanguinity or affinity, and in what degree, of any of the litigants. 3. Whether he is an employee or servant of the person for whom he appears, or whether he is a partner of, or has any other interests or connection with said party. 4. Whether he has any direct or indirect interest in the action or in another similar action. 5. Whether he is an intimate friend or enemy of any of the litigants. ART. 648. As soon as the witness shall have answered the questions prescribed in the foregoing article, he shall be examined upon each of those contained in the interrogatory and which have been admitted by the judge, or upon those designated by the person for whom he appears. He shall thereupon be examined upon the cross-interrogatories, if any have been presented and admitted. To each of his answers the witness shall give the reasons upon which it is founded. ART. 649. The witness shall answer orally without the aid of any memorandum. When the question refers to accounts, books, or papers, he shall be permitted to consult them in order to make answer. ART: 650. The declarations of each witness shall be written out separately, but one immediately following the other. The witness may himself read his testimony. Should he not desire to make use of this right, the clerk shall read it, and the judge shall ask the witness whether he ratifies it or has anything to add or change, his answer being written immediately thereafter. The witness shall thereupon subscribe said declaration, if able to do so, together with the judge, the clerk, and all other parties. ART. 651. The parties and their counsel can not interrupt the witnesses, nor ask other questions or cross-questions than those set forth in their respective interrogatories. Only in the event that the witness shall fail to fully answer any question or cross-question, or should contradict himself, or have 'Declarations of witnesses not authenticated by the clerk have no legal value..Decision of Feb. ;0, 1869.

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LAW OF CIVIL PROCEDURE. expressed himself ambiguously, may the parties or their counsel call the attention of the judge to the fact, in order that, should he deem it proper, he may require the witness to make the proper explanations. The judge may also ex officio request of the witness the explanations he may deem proper for the elucidation of the facts upon which he may have testified. ART. 652. If it were impossible to conclude the examination of the witnesses of one side at one sitting, it shall be continued at the following session' of the court or at the one which the judge may designate. ART. 653. If, for any reason whatsoever, all the witnesses do not appear at the time fixed for their examination, on the petition of the party interested, the judge shall set another day and hour at which they are to appear, and shall notify the parties thereof. ART. 654. If, on account of sickness or for any other cause which the judge may consider good, some witness can not be present in the court room, his declaration may be taken at his residence in the presence of the parties and their counsel, unless the judge, in view of the circumstances of the case, considers their presence unadvisable. In such case the parties may examine the declaration in the clerk's office. ART. 655. When the examination of the witnesses is to be made beyond the place where the action is pending, to the letters rogatory or communication issued for the purpose, shall be attached, in a sealed cover, the interrogatory of questions admitted by the judge hearing the cause. The judge to whom said letters rogatory are addressed shall open said sealed interrogatory at the time of the commencement of the examination of the witnesses. ART. 656. If any witness should not speak or understand the Spanish language he shall be examined through an interpreter, whose appointment shall be made in the manner prescribed for the appointment of experts. ART. 657. Deaf mutes may be admitted as witnesses if, being able to read and write, they can give their declarations in writing. ART. 658. Judges and courts shall weigh the force of the declarations of the witnesses according to rules of sound judgment, taking into consideration the reasons upon which they are based and the circumstances connected therewith.1 Nevertheless, when the law determines the number or the qualifications of witnesses as a formality or special circumstance of the act to which they refer, the provisions for said case shall be observed.2 'See article 1248 of the Civil Code. 2In order to question the weight of some evidence it is only pertinent to cite, as violated, laws or doctrines which among other circumstances combine the condition of forming part of those explicitly destined to fix the kinds of proof, indicate the value thereof or their efficiency, because those of another character can hardly serve 138

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LAW OF CIVIL PROCEDURE. 139 8. Challenge of witnesses. ART. 659. Each party may challenge the witnesses of the opposite party for any of the following reasons: 1. Relationship of the witness to the party for whom he appears by consanguinity or affinity within the fourth civil degree. as an argument against the consideration of evidence, when they can not serve as a guide thereto.-Decision of March 31, 1865. With regard to the proof of the legal existence of a will, courts can not be convinced by the full and rational means which are established for ordinary facts in this article; but they must adjust their judicial criterion to the special rules which the laws establish for the proof of such acts, with regard to the number and qualifications of the attesting witnesses, as well as with regard to the other formalities which are to be observed.-Decisions of October 26, 1864, and February 6, 1866. The rule relating to sound judgment can not be understood as meaning that in the absence of other evidence full faith is not to be given to witnesses who do not state on what they base their answers.-Decision of December 26, 1878. The rule that two reputable witnesses are sufficient to prove the truth of a complaint does not mean that whenever they do attend is the complaint to be declared proven, and much less so when complicated evidence is to be considered. A chamber which disallows the petition of the plaintiff does not violate the law of civil proce(lure. -Decision of May 4, 1880. According to article 658 of the law of civil procedure, "judges in weighing the evidence of witnesses are allowed a reasonable liberty in order to form their opinions, without considering the number, but only the value of the testimony, weighed in accordance with the rules of sound judgment.-Decision of June 28, 1881. This article is not applicable when the decision is not based on the evidence of witnesses, but on documentary evidence.-Decision of April 3, 1879. It is not a principle of law nor a rule of sound judgment that the statements of witnesses ,not challenged are to be accepted in their entirety, because this claim would be contrary to the reasonable liberty which the law grants to judges and courts in weighing the evidence of witnesses.-Decision of November 18, 1881. Law 2, Title XVI, Book XI, of the Novisina Recopilacidn relating to evidence has been repealed by the law of civil procedure, as the Supreme Court has repeatedly declared.-Decision of June 80, 1865. Laws 32, 40, and 41, Title XVI, Partida 3, relating to the value of the evidence of witnesses have been repealed by article 317 of the former law of civil procedure and by article 659 of the present law (658 of the law for Cuba and Porto Rico).Decision of December 21, 1881, and many others. The following laws of the same title and partida have also been repealed: Law 22 (Decision of une 15, 1880); law 4 (Decisions of June 11, 1879, and April 17, 1880); laws 28 and 29 (Decision of October 19, 1879), and also law 16 of Title XXXII (Decision of December 5, 1879), and laws 1 and 8 of Title XIV of the same partida (Decision of October 29, 1879). Finally, by decisions of March 13 and 22, 1889, it is stated that the laws of the Partidas relating to the evidence of witnesses have all been repealed by the law of civil procedure. Notwithstanding this decision the Supreme Court declared (Decision of February 20, 1861) that the last part of law 32, Title XVI, Partida 3, which declares that a complaint can not be considered proven by the testimony of a single witness, is still in force. An appeal for annulment of judgment can not be based on a violation of article 658 of the law of civil procedure, if at the same time there are not stated the rules of sound judgment which the adjudging chamber has not considered in weighing the evidence of witnesses.-Decision of December 5, 1882.

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140 LAW OF CIVIL PROCEDURE. 2. That the witness at the time of giving his testimony is a partner, employ, or servant of the party for whom he appears. For the purposes of this provision, a servant or employee shall be considered the person who lives in the house of the litigant and performs therein mechanical services for a fixed salary; and an employ, a person who habitually renders for the litigant remunerated services, although not living in his house. 3. That the witness has a direct or indirect interest in the action or in another similar action. 4. That the witness has been condemned for giving false testimony. 5. That the witness is an intimate friend or an open enemy of one of the litigants.1 ART. 660. Within four days after the evidence of the witnesses for one party has been taken, any one of them may be challenged by the opposite party, when any of the causes mentioned in the foregoing article are attendant and such fact had not been acknowledged in his testimony. ART. 661. In the instrument alleging the causes for challenge the proof thereof shall be presented in a supplementary statement. If proofs are not presented it shall be understood that the challenge is withdrawn. ART. 662. The party in interest may object to the causes of challenge within the three days following that upon which a copy of the written challenge is served upon him. He may also, by means of a supplementary statement, submit the evidence in his favor, and should he not do so, it shall be understood that he withdraws the same. ART. 663. If neither of the parties submits proof of the cause for challenge, such challenges shall be attached to the record without further proceedings and shall be considered at the proper time. If they have offered proof, the judge shall admit that which is pertinent, and shall order that the evidence be taken. ART. 664. The evidence relating to causes of challenge shall be presented during the time remaining of the second period for the taking of evidence. If there be not sufficient time therefor, the judge may extend it for this purpose only, for the period he may consider necessary, but in no case can the extension exceed ten days. ART. 665. The evidence relating to causes of challenge shall be attached to the record of the principal evidence for the proper final effects. 1See article 1247 of the Civil Code relating to the legal disqualification to be a witness, and to which article this one is subordinated. The Supreme Court has declared hereon that a challenge interposed by reason of relationship is subordinated to the provisions of law 9, Title VIII, Book II, of the "Fuero Real," when the relationship is to both litigants.-Decision of October 3,1868. I I

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LAW OF CIVIL PROCEDURE. 141 SECTION VI.-Final pleadings, hearings, and judgments. ART. 666. After the period for the taking of evidence has expired, or after all the evidence submitted has been taken, without any action on the part of the interested parties, or without taking account of their action should they take any, the judge shall order that the evidence taken be attached to the record, giving notice thereof to the parties. ART. 667. The party who prefers to argue his case orally instead of in writing must, within three days after notice of the order mentioned in the preceding article has been served, present a petition for a public hearing. ART. 668. The three days having passed without any of the parties having requested a public hearing, the judge shall order that the original record be delivered to each of the parties, in their order, so that they may make their final pleadings and file a written brief of the evidence. For this purpose there shall be granted to each party a period not less than ten nor more than twenty days. Only in case that, owing to the volume or complicated character of the evidence, the judge shall consider it necessary, he may extend said time, at the instance of a party, to thirty days, which period can not be extended. ART. 669. The final pleadings shall be limited to the following: 1. In numbered paragraphs there shall be stated, with clearness and with the greatest possible conciseness, each one of the facts which have been the object of the contention, making a short and methodic brief of the evidence which, in the judgment of the each party, sustains or disproves them. 2. In paragraphs, also brief and numbered, and following the same order as that of the facts, the evidence of the opposite party shall be discussed. 3. The principles of law respectively alleged in the complaint and answer, and, in a proper case, in the replication and rejoinder, shall be fully and concisely stated, if contended for in whole or in part. There may also be stated other laws or principles of law upon which a decision of the questions at issue in the cause may be based; but they shall be confined to a citation thereof, without comment or argument other than to show the positive character in which they are considered pertinent to the question at issue. Without further argument the case shall be submitted for judgment ART. 670. The final pleadings shall be attached to the record the copies prescribed being furnished to the other parties to the action ART. 671. As soon as the period granted for the final pleadings has expired, the record shall be recovered from the party in possession thereof upon the request of the opposite party, with or without the final pleadings, and the proper action shall then be taken.

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LAW OF CIVIL PROCEDURE. ART. 672. After the record has been returned by the defendant, or recovered by compulsory process, the judge shall order that it be considered closed, and that it be brought before him for judgment, with a citation of the parties. ART. 673. In the case of article 667, a copy of the petition for a public hearing shall be given to the opposite party, in order that within two days after the delivery of the copy of the petition he may fully and concisely state, and without argument, whether or. not he agrees to said petition. Said copy shall not be served when both parties join in the request. ART. 674. The judge shall order that a public hearing be granted when all the parties to the action so request. Should there not be this agreement, the judge shall grant or deny the request, as he may deem best, taking into account the nature and importance of the action. There is no further remedy against the order of the court on this subject. ART. 675. When the judge refuses to grant a public hearing he shall, in the same decision, issue the orders prescribed in article 668. Should he grant a public hearing, he shall order that the record be delivered to each of the parties in their order for their examination, for a period which shall be not less than ten days nor more than twenty days, which period can not be extended. In such case no final pleadings shall be made, nor shall the parties be permitted to file any other written allegations, being obliged to confine themselves to the statement that they have the information required to proceed with the hearing. ART. 676. After the record has been returned or recovered, in a proper case, the judge shall order the citation of the parties for judgment, and shall fix as early a date as possible within the next eight days for the hearing. At this hearing the counsel for the litigants who may appear shall be heard orally. An. 677. The judge shall render judgment and make it public within twelve days after the hearing, or the citation, in the case of article 672. This period may be extended to fifteen days, if the length of the record exceed one thousand folios.2 1 When citation for judgment is not made an appeal lies for breach of form, and not for breach of law.-Decision of October 17, 1888. 2A judgment is not final which not only does not put an end to the action, but designates where it may be continued and where the rights alleged may be argued.Decision of January 20, 1883. The reservation of rights made in a judgment can not be said to give or deprive persons of rights.-Decision of March 17, 1888. A decision which does not adjudge without evidence does not violate this law.Decision of April 10, 18&. 142

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LAW OF CIVIL PROCEDURE. ART. 678. If an appeal be taken from a final judgment at the proper time and in the proper manner, the judge, without any further proceedings, shall admit the same both for review and a stay of proceedings, and shall order that the record be transmitted to the higher court, the solicitors of the parties being cited to appear before said court within twenty days after the date of the citation. The clerk shall include the notice and the citation in a single writ, and shall, within the six following days, transmit the record to the higher court at the cost of the appellant.1 CHAPTER III.-ACTIONS OF LESSER IMPORT. ART. 679. The proceedings in actions of lesser import shall be prosecuted according to the rules established for an ordinary action of greater import in so far as not opposed to the special procedure prescribed in the following articles. ART. 680. After the complaint has been filed with the documents and the necessary copies thereof, said complaint shall be served on the defendant or defendants, with a summons to appear and make answer thereto within nine days. ART. 681. The summons shall be made in the manner prescribed for notices, substituting the writ prescribed in article 274 with a copy of the complaint. There is no breach of law when a chamber considers documentary and other evidence together.-Decision of April 80, 0888. Principles of law relating to public instruments and to their efficiency as proof are not violated when the court, acknowledging the facts certified to therein, afterwards considers the efficacy of said facts according to the other data and reasons upon whichthelitigation isbased.-Decisions of November 14 and 20, 1888, and March 11, 1886. Whenever a decision is rendered in favor of the plaintiff, it is naturally understood thereby that the exceptions pleaded by the defendant are disallowed.-Decision of April 18, 1884. An adjudgment to pay losses and damages must be preceded by the affirmation or declaration of the existence of said losses and damages.-Decision of Jnne 10, 1881. In order that an appeal for annulment of judgment may be taken for an error in law in the consideration of evidence, it is an indispensable requisite that some law or legal principle relating to the value and efficacy of said evidence and to the manner and form of considering or weighing the same be cited and be violated.-Decision of April 2, 1887. The evidence shall be weighed by the adjudging court, and its decision must be observed until it is proven that an error of fact or of law has been committed, founded on a document or authentic instrument which proves the error of the court, or which is in evident contravention of a law or principle of law which it is necessary to cite.-Decisions of June 22, July 7 and 11, 1887. 'After an appeal has been taken and is duly entered, the lapse of the period prescribed for the taking of this appeal is interrupted. If interposed without the signature of an attorney, although it can not be acted upon until this defect is cured, it must be admitted as soon as cured, otherwise giving to the law an interpretation in contradiction of the legal principles set forth.-Decisions of December 17, 1869, February 29, 1860, and Septenker 14, 1861. 143

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LAW OF CIVIL PROCEDURE. ART. 682. When, on account of the domicile of the defendant being unknown, it is necessary to notify and summon him by edicts in the manner prescribed in article 269, a period of nine days for appearance in action shall be fixed. If he should appear, he shall be granted six days within which to make answer, and upon being notified of this order a copy of the complaint and of the documents, in a proper case, shall be delivered to him. ART. 683. When there are two or more defendants they may jointly or separately make answer to the complaint within the period prescribed in article 680, which shall be common for all. If any document exceed twenty-five sheets, a copy thereof need note attached, and the original must be delivered. If the defendants can not litigate jointly, the first of them shall be granted the period above mentioned and six days to each one of the others. ART. 684. Whatever be the form in which the summons was served, if the defendant does not appear within the period designated, he shall, at the instance of the plaintiff, be declared in default, and the complaint being considered as answered, the action shall proceed on its course, notice of said order as well as all others which may thereafter be made being made within the limits of the court-room. ART. 685. If the defendant believes that an action of lesser import is not the proper action, he may employ the remedy granted him by article 491 within the four days following the summons to make answer to the complaint. ART. 686. The defendant shall in his answer plead all the exceptions he may have in his favor, dilatory as well as peremptory, and the judge shall pass upon all of them in the judgment, but he shall abstain from deciding upon the main issue if he considers any of the dilatory exceptions well taken.' ART. 687. If the defendant should present a counterclaim, it shall be referred to the plaintiff in order that he may make answer thereto within four days, which shall be limited to the allegations of said counterclaim. ART. 688. If the counterclaim should involve an issue which must be heard in an action of greater import, the judge shall refuse to entertain the same eo instant and without further remedy, without prejudice to the right of the defendant, which he may enforce in the proper action. ART. 689. The litigants shall state in their respective pleadings whether they admit or deny the allegations contained in the complaint or counterclaim. Silence or evasive answers shall be considered in the judgment as an acknowledgment of the facts to which they relate. 1This precept is applicable to actions of unlawful detainer.-Decision of December 19, 1884. 144

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LAW OF CIVIL PROCEDURE. ART. 690. If the parties should agree as to the facts, and no disputed allegations of fact are made, the question shall be reduced to an issue of law, and the judge shall, within the two days following the presentation of the answer, order that the parties be cited to appear, fixing as early a day and hour as may be possible within the six days following. At this appearance the judge shall hear the parties or their solicitors or counsel, should they attend the proceedings, and shall tender judgment within three days. ART. 691. The proceedings shall not be suspended on account of the nonappearance of any of the litigants, hearing in such case the one who appears. If none of the parties appear at the hour and on the day fixed, an entry of the fact shall be made, and the judge shall consider the proceedings closed and render judgment thereon within the period aforementioned. As soon as appearance is made, the proper record thereof shall be made, in which shall be succinctly entered what the parties may have alleged, which shall be signed by the judge, the clerk, and the persons interested. ART. 692. If the parties should not agree as to the facts, or, if agreed to, others are alleged against the plaintiff by the defendant, the judge shall order that evidence be taken requiring of each that within the period of six days, which time can not be extended, they submit that which is to their interest. After said period no new nor additional evidence can be submitted. ART. 693. The documents included in some of the subdivisions of article 505 are excepted from the foregoing prohibition. The presentation of such documents may be made in first instance during the period for the taking of evidence, and afterwards until the citation for appearance is made; in second instance, until a day is set for the hearing. ART. 694. After the expiration of the six days without any of the parties submitting any evidence, the judge, proceeding according to the prescriptions of articles 690 and 691, shall order the parties cited to appear, and he shall render judgment within three days thereafter. 1The lack of personality in any of the parties in a cause does not give ground for an appeal for an annulment of judgment as to the principal action, and can only be alleged as a basis for an appeal for breach of form, as determined by article 693 of the law of civil procedure.-Decision of November 30, 1888. In order that an appeal for an annulment of judgment for breach of form be admitted, it is indispensable that the petition for curing the defect that is supposed to have been committed should have been filed at the proper time, utilizing the ordinary remedies which for this purpose are granted by the law.-Decision of October 10, 1888. 5901 10 145

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146 LAW 01 CIVIL FROCEDURE. ART. 695. If both parties or either of them should have submitted evidence, the judge shall fix a period within which it is to be taken. This period can not exceed twenty days. ART. 696. Notwithstanding the provisions of the foregoing article, if any of the testimony is to be taken in a place other than that in which the cause is being tried, the judge, taking into consideration the distance and means of communication, may extend the period the number of days necessary, when he considers that it is not possible to take the evidence within the ordinary period. This extension can not exceed ten days. In such case the other proceedings for the taking of evidence shall be performed within the period fixed in the foregoing article. ART. 697. An extraordinary period for the taking of evidence may also be granted in the cases and with the requisites prescribed in articles 554 to 561. ART. 698. Evidence shall be taken in the manner prescribed for declaratory actions of greater import. ART. 699. Each party, within the period fixed for the taking of evidence, may challenge the witnesses presented by the opposite party for the causes and in the manner prescribed for declaratory actions of greater import, the extension of the period granted by article 664 being reduced in a proper case to five days. ART. 700. Upon the day following the period for the taking of evidence, or as soon as all testimony submitted has been taken, the judge shall ex officio order that it be attached to the record and the parties be cited to appear, the evidence in the meantime being placed in the clerk's office for examination; after the hearing, should the interested parties appear, the judge shall render judgment within five days. ART. 701. Judgments rendered in actions of lesser import may be appealed from for review and for a stay of proceedings. ART. 702. If an appeal is filed during the course of these actions, the judge shall consider the appeal as interposed at the proper time, without thereby interrupting the course of the action. In such case the appeal must be retaken at the same time as the appeal from the final judgment, and both appeals shall be admitted for a review and stay of proceedings. There must also be interposed in a proper case, at the same time, the appeal for annulment mentioned in article 494, and it shall be admitted with the other before the audiencia of the judicial district, provided it is prepared at the proper time. ART. 703. After the appeal and the application for annulment, in a proper case, have been allowed, the record shall be forwarded to the audiencia, the parties being summoned to appear ten days thereafter before said audiencia, so that, should they so desire, they may allege their rights.

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LAW OF CIVIL PROCEDURE. ART. 704. After the record has been received by the audiencia, and the appellant has appeared in person or through a solicitor, within the period fixed in the summons, the record shall be referred to the relator for a period of six days, in order that he may make an abstract thereof as concise as possible.' ART. 705. During the six days mentioned in the foregoing article the appellee may, in writing, agree to the appeal with regard to such points of the judgment which he may consider prejudicial, without stating his reasons therefor. A copy of said instrument shall be attached to the original to, be furnished to the appellant. ART. 706. Within the six days aforementioned, any of the parties may petition that evidence in the case be taken, if any of the causes should be attendant in which article 861 permits it, stating in the same instrument the evidence that is to be taken. The chamber shall at once decide what it deems proper. If it permits evidence to be submitted, it shall fix a period which can not be extended which it may consider necessary to take the evidence, but the period can not exceed twenty days.2 ART. 707. After the brief has been prepared, and in a proper case the evidence is united to the record, the latter shall be delivered to the ponente for a fixed period, not to exceed six days, for his examination. ART. 708. As soon as the ponente has examined the record a day shall be set for the hearing, and the parties shall be cited to appear for judgment. Four days shall intervene between the citation and the hearing, during which time the record shall remain in the office of the secretary in order that the parties may examine it and take copies of the abstract, should they so desire. ART. 709. Five days after the hearing, at which the parties, their solicitors or attorneys, may discuss the facts only, judgment shall be rendered affirming or reversing the judgment appealed from or deciding in a proper case what may be proper with regard to the annulment and other questions submitted for decision to the chamber. A judgment which affirms or which increases that renderd in the first instance must include the taxation of costs against the appellant. ART. 710. If the appellant does not appear within the period fixed in the summons, the chamber shall er ofoio order that the record be 'If in the order the chamber does not fix the period of six days, and in consequence thereof it is believed that an action of greater import is in question, and the proceedings are prosecuted as such, when the error is discovered the action should be returned to its status when the order was made; and if the chamber does not so proceed, and prevents the taking of evidence, an appeal for annulment of judgment lies.-Decision of Jly 8, 1885. 2If the testimony was not prepared in the instrument referred to in this article, but afterwards, the appeal for annulment of judgment is not admissible on the ground of its not having been admitted.-Decision of June 23, 1888. 47. I

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148 LAW OF CIVIL PROCEDURE. returned to the judge of first instance, in order that the judgment be executed and that the costs of the transmission of the appeal be paid by the appellant, for which purpose the amount of said costs shall be noted in the letter returning the record. ART. 711. The nonappearance of the appellee in the audiencia shall p not be an obstacle to the continuation of the proceedings in his default. ART. 712. When the judgment appealed from has been affirmed or reversed, the record shall be returned to the judge of first instance with a certificate of the decision and with taxation of costs, if such have been ordered, for their execution and enforcement. ART. 713. After the records have been received by the court of first instance, the proceedings prescribed in the title for the execution of judgment, shall be observed. CHAPTER IV.-ORAL ACTIONS.' ART. 714. Municipal judges are the only ones competent to take cognizance in oral actions of all causes of action in which the amount In place of this article see the royal order of September 20, 1891, which is given herewith: 1. In towns in which there are two or more municipal judges, each shall take cognizance of the matters appertaining to his district, in accordance with the provisions of article 435 of the law of civil procedure, and subject to the rules of competency established in articles 62, 63, and 1560, without the parties being permitted to submit either in an implied or express manner to one of them to the exclusion of the other. 2. Municipal judges shall not proceed with any matter the cognizance of which pertains to another district, and shall not issue any order therein except one transmitting the papers or petitions to the competent court. Letters rogatory shall be executed by the judges in whose districts the proceedings referred to in the commission are to be fulfilled. 3. Judges of first instance, in taking cognizance of appeals, and chambers of justice in deciding questions of competency, shall, in a proper case, impose the dfseiplinary corrections established in the law of civil procedure upon the secretary of the municipal court, who should not have entered in a statement the circumstances determining the competency, or upon the municipal judge if, said circumstances having been entered, he shall not duly consider them. 4. In every municipal court of a town in which there are two or more of said courts, there shall be kept a register of all oral actions and proceedings to avoid litigation which may be held, in which there shall be entered the date of the proceedings or act, the purpose thereof, the names of the plaintiff and of the appellant, their domiciles, the street, place, or location of the estate, whon the action involves a real action, and any other data which may be necessary to determine the competency. 5. For the purposes of said register municipal judges shall furnish a daily report to the presiding judge of the territorial audiencia of the oral actions and proceedings to avoid litigation (actos de conetiacibu) which may have been had, stating the details referred to in the foregoing number and the result of each proceeding or action. 6. The presiding judges of the audiencias shall observe the greatest care to secure a proper fulfillment of the foregoing provisions, utilizing for this purpose the powers granted them by the organic law of the judicial service.

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LAW OF CIVIL PROCEDURE. 149 involved does not exceed 1,000 pesetas, although the claim is based on a document importing a confession of judgment (,fuer2c ejecutiva). ART. 715. The following are exceptedfrom the foregoing article: 1. Interventions or interpleaders and other proceedings incidental to another action, in which case the provisions of article 487 shall be observed. 2. Reconventions in actions of greater or lesser import, which shall be heard and decided according to the provisions of articles 543-and 687. ART. 716. When the municipal judge considers himself incompetent to take cognizance of an action Qwing to the nature of the case or the amount involved, he shall make a ruling to this effect immediately following the complaint and on the same paper, and advising the plaintiff to allege his rights before the proper judge and in the proper manner. An appeal from this ruling may be taken for review and a stay of proceedings to the judge of first instance of the judicial district. ART. 717. When the defendant does not agree as to the amount involved in the action the provisions of article 495 shall be observed. ART. 718. The hearing and decision of these actions in first instance shall be had by the appearance of the parties before the municipal judge in accordance with the following articles. AR. 719. The complaint shall be presented on ordinary paper and shall contain: The names, domicile, and profession or trade of the plaintiff and of the defendant or defendants. The subject of the complaint. The date of the presentation of the complaint to the court. The signature of the person presenting it or of a Witness at his request, if he were unable to sign his name. The plaintiff shall present as many copies of this complaint, subscribed in the same manner, as there may be defendants. ART. 720. When the complaint, together with the copies, has been presented, the municipal judge within two days shall enter thereon an order summoning the parties to appear, fixing a day and hour for that purpose, in accordance with the provisions of article 725. This order shall be communicated to the plaintiff. AR. 721. The citation of the defendant to appear shall be made by the secretary or bailiff of the court by delivering to him a copy of the written complaint, on which instrument, immediately after the complaint, the secretary shall draft the writ of citation, stating the date of the order and the day, hour, and place fixed for the appearance, with the admonition that the action will be heard in his default if he does not appear. ART. 722. The service of the complaint and citation of the defendant

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LAW OF CIVIL PROCEDURE. shall be entered on the order by means of a memorandum which the defendant shall sign, or a witness at his request, should he be unable to do so. If the defendant is not found at his domicile, the memorandum' shall be signed by the person who receives it, observing the prescriptions of articles 263 and 268. ART. 723 When the defendant resides at a place other than the residence of the municipal judge who summons him, an official communication shall be sent to the judge of the place where he may be found, accompanied with a copy of the complaint and the writ of citation, in order that the latter may be served. After the communication, which shall be returned without delay to the judge who issued the request, shall be entered an account of the service of the copy and the citation. ART. 724. When the domicile of the defendant is unknown, the citation shall be made by means of edicts, posted at the place where the action is pending, and at his last place of residence, in which case the judge may extend the time for the appearance, but not to exceed the period of twenty days. The edicts shall also be published in the official periodicals whenever the judge considers it necessary. ART. 725. Between the citation and the appearance a period of time not less than twenty-four hours nor more than six days must intervene. In the cases in which the defendant does not reside at the place where the action is pending, this period shall be extended one day more for every 20 kilometers of distance. ART. 726. After the time for the appearance is set it can not be changed except for good cause, alleged and proven before the municipal judge, or by a mutual agreement between the parties. ART. 727. Should the plaintiff not appear at the day and hour fixed, he shall be considered to have abandoned the action, he being adjudged to pay all the costs aid to indemnify the defendant, who may have appeared, for the losses he may have suffered. In the record which may be made, the judge, after hearing the defendant, shall, without further remedy, fix the amount of such damages at a reasonable figure, which can not exceed 125 pesetas, unless the defendant should waive his right thereto. If no waiver is made, it shall be recovered with the costs by compulsoi;y process.' ART. 728. Should the defendant not appear the action shall proceed in his default, without a further citation. ART. 729. The appearance shall be had before the judge and secretary on the day set. At said appearance the parties in their order shall allege their claims and rights, and afterwards the pertinent evidence which they 1 The nonappearance in oral actions is not an essential form of the action enumerated in article 1691.-Decision of JAne 11, 1885. 150

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LAW OF CIVIL PROCEDURE. may submit shall be admitted, the documents being attached to the record. At this appearance any person selected by the parties in interest may accompany and speak for them. A proper record of the appearance shall be made, which shall be signed by all the persons present and those who have testified as witnesses. ART. 730. After the, appearance, the judge shall, on the same or the following day, enter final judgment at the end of the record. If the defendant should institute a demand in reconvention for an amount exceeding 1,000 pesetas, the judge in the same judgment shall make the reservation of rights prescribed in rule 4 of article 63. ART. 731. This judgment may be appealed from both for review and stay of proceedings to the judge of first instance of the judicial district, in which the municipal court is situated. The appeal may be taken when notice of the judgment is served, in which case the secretary shall make entry thereof in the proceeding, or within the next three days by appearing before the municipal judge. ART. 732. When the appeal is admitted, the record shall be transmitted to the judge of first instance and the parties shall be summoned to appear, if they so desire, within eight days, in order to allege their rights. ART. 733. Should the appellant not appear within said period, the appeal shall be dismissed, with costs taxed against him, the record being ordered returned ex oficio to the municipal court for the execution of the judgment. ART. 734. Should the appellant appear within said time, which appearance shall be recorded, the judge of first instance shall order the parties to be cited to appear on the day and hour designated by him, proceeding according to the rules hereinbefore established. Should the appellee not appear, the citation shall be served upon him by posting it within the limits of the court-room. ART. 735. After the appearance is recorded, or a notice of nonappearance of the parties has been entered, on the same or the following day, the judge shall render final judgment, affirming or reversing the judgment appealed from, taxing the costs against the appellant in the first case, or issuing, in a proper case, the order of nullity prescribed in article 495. There shall be no remedy whatsoever against this judgment. ART. 736. After the judgment has been rendered, the record shall be returned to the municipal court within two days, with a certified copy thereof for its execution. When there has been an adjudgment upon costs, the clerk shall enter a detailed statement thereof at the foot of the certified copy, for their recovery, if they have not been paid. 151

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LAW OF CIVIL PROCEDURE. ART. 737. After the certified copy with the record has been received by the municipal court, the procedure for the execution of judgments shall be observed, but the periods of time shall be so reduced that in no case shall they exceed one-half the time of those therein established. ART. 738. If an intervention of ownership or better right be interposed during the execution of the judgment relating to the property attached, the same municipal judge shall decide the question according to the procedure prescribed for oral actions, when the value of the property claimed does not exceed 1,000 pesetas. Should it exceed this amount, the demand in intervention must be presented to the court of first instance in order that it be heard according to the procedure prescribed for declaratory actions. In such case the judge of first instance shall order the municipal judge to suspend all proceedings before him until judgment in the intervention is rendered, if the intervention related to ownership; and if to a better right, the judge shall be ordered to deposit the proceeds of the sale of the property, if sold, in a public depository. ART. 739. If, in any of these actions, any of the litigants request to be allowed to litigate as a poor person, the municipal judge shall hear and determine this issue according to the procedure prescribed for oral actions, hearing the municipal fiscal who shall be cited to appear for this purpose, and taking into consideration the rules prescribed in articles 15 et seq. in determining the incidental issue. TITLE III. INCIDENTAL ISSUES. ART. 740. Incidental issues which must be decided before the main issue can be proceeded with, which may be raised in any kind of an action, except oral actions, and for which no special procedure is prescribed in this law, shall be heard and determined according to the procedure prescribed in this title.' ART. 741. Such questions, in order to be classified as incidental issues, must be immediately related to the main question which is the object of the action in which they are raised, or with the validity of the procedure.2 'An issue.raised after the termination of an action, and not during the course thereof, can never be considered as an issue incidental to an action.-Decision of -May 27, 1890. 2 Until the complaint has been admitted, the plaintiff has no personality to raise issues incidental to the question.-Decision of Kay 28, 1861. As article 740 of this law is limited to the definition of incidental issues, which are the questions raised during the progress of an action and which are related to the main issue or to the validity of the procedure, the judgment which decides the incidental issue raised by a party, and heard and decided according to all the formalities of Title 3 of Book 2 relating to the nullity of the proceedings employed in the execution of the judgment, far from violating the article cited gives thereto its full force of procedure.-Decision of February 16, 1889. 152

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LAW OF CIVIL PROCEDURE. 153 ART. 742. Judges shall ex officio reject incidental issues not included in the provisions of the foregoing article, without prejudice to the right of the parties who have raised said issues to raise the same question in the proper manner. A motion for a rehearing may be interposed against this order of the court, and, if not entertained, an appeal lies for a review of the proceedings. ART. 743. The incidental issues which, requiring a previous decision, are an obstacle to the continuation of an action, shall be heard and determined in the same proceedings, the course of the principal action being meanwhile suspended. ART. 144. In addition to the incidental issues expressly mentioned in the law, the following shall be considered as included within the provisions of the foregoing article: 1. Incidental issues which refer to the annulment of the proceedings or of any order of the court. 2. Incidental issues which relate to the personality of any of the litigants or his solicitor, based upon facts arising after answer to the complaint was made. 3. Any other incidental issue arising during the course of the action; without the previous decision of which it would be absolutely impossible, de facto or de jure, to continue the main action. ART. 745. Incidental issues which do not suspend the prosecution of the main action shall be heard and determined separately upon a separate record, without suspending the course of the principal action. ART. 746. The separate record shall be prepared at the expense of the party who may have raised the incidental issue and shall contain: 1. The original document in which the incidental issue was raised, or a certified copy thereof and the necessary part of the order, if it contains other claims. 2. The original documents relative to the incidental issue which may have been presented therewith. 3. A transcript of such parts of the main record as the party which raises the incidental issue may designate, including therein also the portions which the opposite party requeststo be added thereto, if the judge considers them pertinent. ART. 747. Such designation must be made by the party raising the incidental issue within three days after that of the notice of the ruling of the court ordering that a separate record be made, and by the opposite party within the three days following, for which purpose the record shall be placed in the office of the clerk for examination. If such designation be not made within said periods, the clerk shall at once prepare the separate record with the petition and documents mentioned in numbers 1 and 2 of the foregoing article. In every dase a memorandum of the making of the separate record

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LAW OF CIVIL PROCEDURE. shall be entered upon the main record, and in the separate record a statement to the effect that the solicitors of the parties have power to act for them in the latter. ART. 748. When an incidental issue has been interposed, and the separate record has been prepared, in a proper case, it shall be referred to the opposite party for a period of six days, in order that he may make a special answer to the incidental issue. Should there be several litigants the same period shall be granted to each of them in their order. The provisions of article 514 et seq. shall be observed in the filing' and delivery of copies. #1 ART. 749. In the document raising an incidental issue and in that containing the answer thereto, the parties shall, if they consider it necessary, request that evidence be taken. ART. 750. If none of the parties should request that evidence be taken the judge shall, without further proceedings, order that the record be submitted to him for judgment, to which the parties shall be cited to appear. ART. 751. Evidence shall be taken in the incidental issue: 1. When all litigants have requested it. 2. When but one of the parties having requested it, the judge considers it proper. ART. 752. The period for the taking of evidence in incidental issues shall not be less than ten nor more than twenty days. This period shall be common for the offering and the taking of evidence, and in other respects the provisions for declaratory actions shall be observed. ART. 753. An extraordinary period for the taking of evidence shall be granted only for such incidental issues as are heard and determined in a separate record, and in those mentioned in number 2 of article 745. ART. 754. The time for the taking of evidence having expired, the judge, without the necessity of the persons interested requesting it, shall order that the evidence taken be attached to the record, and that a hearing for judgment be had, with a citation of the parties. ART. 755. Both in the case of the foregoing article and in that of article 750, the judge shall fix the first day possible for such a hearing if any of the parties request it during the two days following that of the citation. At such hearing the court shall hear the counsel of the parties, if present. ART. 756. In the case of the foregoing article, the evidence shall be placed in the clerk's office for examination for the period from the day set for the hearing until the hearing is concluded. ART. 757. The judge shall render judgment within five days after the hearing, or after two days following that of the citation without its having been requested. 154

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LAW OF CIVIL PROCEDURE. This judgment may be appealed from, both for a review of proceedings and for stay of execution. ART. 758. The foregoing provisions shall be applicable to incidental issues raised at second instance and in appeals for annulment of judgment. A petition for a rehearing before the same chamber may be made with regard to the judgments rendered therein.1 ART. 759. Within three days after the delivery of the copy of the petition for a rehearing to the other parties they may file such answer as they may consider proper. At the expiration of said period the chamber, after receiving a report from the justice ponente and without further proceedings, shall render the decision it deems proper. An. 760. The only remedy against decisions of audiencias on said petitions for a rehearing shall be an appeal for annulment of judgment, in the cases expressly determined in this law. Against those rendered by the supreme court there is no remedy whatsoever. TITLE IV. PROCEEDINGS IN DEFAULT. ART. 761. From the time when the defendant has been declared in default, in addition to observing the provisions of article 281, there shall be ordered, if the opposite party so requests it, the seizure of all kinds of personal property and an attachment of the real property to the amount considered necessary to insure that which is the object of the action.2 ART. 762. The personal property seized shall be permitted to remain in the possession of the person in whose care or possession it may be found, whether he be the defendant or a third person, provided that, in the opinion of the judge, he possesses sufficient real estate to answer therefor. Should this not be the case, and if not furnished when demanded, the personal property shall be placed in deposit at the cost and risk of the litigant in default. ART. 763. The attachment of real property shall be made by issuing orders in duplicate to the proper register of property to enter a can'A petition for a rehearing may, before the same chamber, be made with regard to decisions relating to incidental issues raised in the second instance, and if said petition be not made no appeal for annulment of judgment can be taken.-Decisions of January 9, 1884, and December 7, 1888. 'Even in actions proceeded with in default, although the defendant should not have appeared to plead exceptions, the court may decide what it may deem proper according to the result of the proceedings.-Decision of January 11, 1886. 155

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LAW OF CIVIL PROCEDURE. tionary notice against the property, with absolute prohibition to sell, pledge, or encumber the same. One copy of said order, after being executed, shall be attached to the record for the proper purposes. Am. 764. The seizure or attachment made as a result of a declaration of default shall continue in force until the conclusion of the action. ART. 765. Whatever may be the status of the action when the party in default appears, he shall be admitted as a party thereto and the action shall continue without retrogression in any case. ART. 766. Should the defendant appear after the' expiration of the period for the taking of evidence in the first instance, or during the second instance, his evidence shall be received at second instance, should he request it and if the issue be one of fact.1 ART. 767. Said party may also petition that the seizure or attachment of his property be raised, if he alleges and clearly proves that he was unable to appear in the action on account of insuperable force may eure. This petition hereon shall be heard and determined in a separate record as an incidental issue without suspending the course of the main action. J ART. 768. Notice of judgment rendered in the proceedings in default shall be served upon the party in default if he can be found, should the opposite party demand it. Otherwise he shall be notified in the manner prescribed in articles 282 and 283. The edicts shall contain only the title and the essential part of the judgment, with the signature of the judge who rendered the same, and they shall be published in the Gaceta of the general Government and in the Boletin Ofticial of the province, if there be one. Said edicts shall also be published in the Gaceta de Madrid when, in the opinion of the judge, the circumstances of the case require it. ART. 769. The provisions of the foregoing article shall be applicable to the notification, and, in a proper case, to the publication by edicts of final judgments rendered in second instance. ART. 770. The litigant in default, who has been personally notified of the final judgment, can appeal therefrom or request an annulment of judgment, if proper, only within the legal period.2 ART. 771. The litigants in default, who have not been personally notified of the judgment, may also avail themselves of the same remedies. In such case the legal period in which to utilize the same shall com' This article and the previous one take as granted that the evidence in the case was taken in the first instance, and as this is not done in an executory action they naturally are not applicable thereto.-Decision of October 1, 1884. 2Notwithstanding the provisions of this article, a litigant in default may avail himself of the other remedies and incidental issues which may be utilized according to law.-Decision of December 90, 1886. 156

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LAW OF CIVIL PROCEDURE. mence from the day following the publication of the judgment in the Boletin Ofcial of the province, when there is one, and in its absence in the Gaceta of the general Government. ART. 772. The defendants who' have remained constantly in default and are not included in any of the cases of the two foregoing articles may be granted a hearing against the final judgment which terminated the action, in order to secure its rescission and a new judgment in the special cases prescribed in the following articles. ART. 773. A defendant who has been personally summoned, and who for nonappearance in the action has been declared in default, shall not be heard against a final judgment. The case is excepted in which he fully proves that during the entire time between the summons to appear until the citation for judgment, the defendant was prevented from appearing in the action by noninterrupted force majeure. ART. 774. In order that a hearing may be granted in the case of the foregoing article, it is indispensable that it be requested and the evidence of the force majeure be presented within four months, counted from the date of the publication of the judgment in the Boletin Ofcial of the province, where there is one, and in its absence in the Gaceta of the general Government. ART. 775. A hearing shall be granted to the defendant against a judgment rendered in default who had been summoned by a writ delivered to his relatives, members of his household, servants, or neighbors, should the two following circumstances be attendant: 1. That said hearing be requested within eight months from the date of the publication of the judgment in the Boletin Of cial of the province, if there be one, and in its absence in the Gaceta of the general Government. 2. That it be fully proven that some cause not imputable to the defendant was the cause of the summons not being served upon him. ART. 776. A defendant who, by reason of not having a known residence, had been summoned by means of edicts, shall be heard against the final judgment when all of the following circumstances are attendant: 1. That said hearing be requested within one year, counted from the date of the publication of the judgment in the Boletin Ofcial of the province, where there is one, and in its absence in the Gaceta of the general Government. 2. That the defendant proves that he was constantly away from the town in which the action was prosecuted from the time he was summoned thereto until the publication of the judgment. 3. That he likewise proves that he was absent from the town of his last place of residence at the time of the publication therein of the edicts. ART. 777. In all these cases the reasons' advanced by the litigant in 157

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158 LAW OF CIVIL PROCEDURE. I' default that he be heard against the final judgment, shall be determined in accordance with the procedure prescribed for incidental issues, at which the others interested in the action shall be heard. ART. 778. The audiencia which has rendered final judgment or to whose district the court of first instance, whose judgment has become final, pertains shall be the one to take cognizance of these incidental issues. Against the decision thereon declaring that the litigant in default shall or shall not be heard, there shall be no remedy except an appeal for annulment of judgment. .ART. 779. In the cases in which the Supreme Court shall have rendered the judgment, it pertains to the same to declare without further remedy whether the litigant in default shall or shall not be heard. ART. 780. If the hearing requested by the litigant in default is refused, all the costs of the incidental issue shall be taxed against him, and the judgment rendered in the action shall become final and shall be executed, the proper orders for this purpose being issued. ART. 781. When said hearing is granted, a certified copy of the decision granting the same shall be transmitted for execution to the judge of first instance who had taken cognizance of the action, the records being also returned if they are in the superior court. In this case also shall the costs of the incidental issue be taxed against the party who instituted the same, if no opposition has been made to said issue by the opposite party, or if the court considers such opposition was made in good faith. ART. 782. The hearings -granted against judgments rendered in default shall be had in accordance with the following rules: 1. The record shall be delivered for eight days to the litigant to whom a hearing has been granted, in order that he may make such allegations and requests which he may deem proper, in the manner prescribed for answers to complaints. 2. His statements shall be referred for eight days more to the person who obtained the transcript of the judgment, to whom copies of the instrument and other documents shall be delivered. 3. If both litigants or either of them should have requested that evidence be taken, and the question which is the object of the action should be a question of fact, the taking of evidence shall be ordered, one-half the periods of time fixed in article 552 being granted for the submission and taking thereof, without prejudice to also granting the extraordinary period when proper and when it is requested. 4. Thereafter the hearing and determination shall conform to the rules established for the first instance of the proper declaratory action, with the ordinary appeals, and appeals for annulment of judgment which may be proper. Airr. 783. If during the course of these proceedings, the party to 5Sq

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LAW OF CIVIL PROCEDURE. 159 whom the hearing was granted is again in default, a nolle prosequi shall be entered and the judgment which closed the proceedings in default shall become final, there being no further remedy against the same. ART. 784. Against final judgments rendered in oral actions heard before municipal judges in first instance, a hearing shall also be granted to the defendant adjudged in default, if all the following circumstances are attendant: 1. That the citation for appearance in the oral action has been made by edicts, or by a writ delivered to his relatives, members of his household, servants, or neighbors. 2. That he request the hearing within three months from the notification of the final judgment made within the limits of the court. 3. That he fully prove that he did not receive the writ of citation owing to a cause not imputable to himself, or that when the edicts were published he was absent from the town without having returned during the prosecution of the action. ART. 785. In the case of the foregoing article the judge of first instance, to whose district the municipal court pertains, shall take cognizance of the incidental issue according to the procedure established for oral actions, and shall decide, without further remedy, whether or not the litigant in default shall be heard, communicating his decision to the municipal judge for its fulfillment. ART. 786. Final judgments rendered in default of the defendant may be executed, reserving the right of the latter to petition for a rescission of the judgment or the hearing mentioned in the foregoing articles. He who has obtained judgment, however, can not freely dispose of the things of which he has been given possession until the periods above mentioned to hear the litigant have expired. When the action has had for its object money or a fungible' thing, it shall be deposited in due form, if the plaintiff does not give security to the satisfaction of the judge to be responsible for the same in case that after hearing the litigant in default it is ordered returned to him. In all cases the party in whose favor a judgment in default is rendered may demand that a cautionary notice of his claim be entered in the registry of property. ART. 787. After the expiration of the periods fixed, without the litigant in default having requested a hearing against the final judgmnent, the prohibition imposed on the opposite party to dispose of the thing which was the basis of the litigation shall be raised, or, in a proper case, the thing on deposit shall be ordered delivered to him, or the cancellation of the bond, had one been furnished. 'Fungible: A term applicable to things that are consumed by the use, as wine, oil, etc., the loan of which is subject to certain rules, and governed by the contract called mutuum.-Bouvier's Law Dictionary, Rawle's revision.

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160 LAW OF CIVIL PROCEDURE. ART. 788. A hearing shall not be granted to the litigants in default against final judgments rendered in executory or possessory actions, or in any action after the conclusion of which another action can be brought relating to the same matter. TITLE V. SETTLEMENTS BY ARBITRATORS AND AMICABLE COMPOUNDERS.' SECTION .-Settlement8 by arbitrators. ART. 789. Arbitrators, who may be appointed for the purpose of settling litigative questions by the persons and in the cases prescribed in article 486, must be lawyers, over twenty-five years of age, who are in the full enjoyment of their civil rights. ART. 790. There must always be. an odd number of arbitrators. If the parties agree upon the appointment of but one arbitrator he shall be selected by common consent. Common consent is also necessary in the selection of all the arbitrators, or at least of the third, if three or five be agreed upon, which number can not be exceeded. In no case can the interested parties grant to a third person the power to select or appoint any of the arbitrators. ART. 791. The compromise must necessarily be contained in a public instrument, and shall be null if prepared in any other manner. ART. 792. The compromise must contain under penalty of nullity: 1. The names, occupation, and domicile of those who authorize the same. 2. The names, occupation, and domicile of the arbitrators. 3. The question to be submitted to arbitration with its attendant circumstances. 4. The period within which the arbitrators must render a decision. 5. The stipulation that a fine shall be paid by the party who fails to comply with such parts of the stipulation as are indispensable to carry out the compromise. 6. The stipulation that another fine shall be paid by any of the parties who may appeal from the decision, to the party who agrees thereto, before such appeal can be heard. 7. The designation of the place where the proceedings for arbitration must be had. 8. The date on which the compromise was entered into. 1There are two sorts of arbitrators, the arbitrators properly so called and the amicable compounders. The arbitrators ought to determine as judges, agreeably to the strictness of law. Amicable compounders are authorized to abate something of the strictness of the law in favor of natural equity.-Civil Code of Louisiana, articles 3109, 3110.

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LAW OF CIVIL PROCEDURE. 161 ART. 793. After the instrument has been drafted, the notary who executed the same, or the one who attests it, shall present it to the arbitrators for their acceptance. An entry of the acceptance or the refusal to accept shall be made at the end of the document, which the arbitrators shall sign, together with the notary. .ART. 794. If any of the arbitrators should not accept, or lacks any of the qualifications mentioned in article 789, he shall be substituted in the manner prescribed for his appointment. When the parties do not agree to said appointments, the compromise shall have no effect. It shall also have no effect if any of the parties fails to attend the making of the appointments within three days after having been required to do so by the notary, at the instance of the other party. In such case, said party shall pay to the latter the fines stipulated, according to the provisions of subdivision 5 of article 792. ART. 795. The acceptance by the arbitrators of their appointment shall give the right to each of the parties to compel them to comply with their duties, under the penalty of being liable for the losses and damages which may be suffered. ART. 796. In the case of the foregoing article the judge of first instance of the judicial district in which the arbitration is or should be held, or, in his absence, the judge of the place where any of the arbitrators reside, shall admonish them, at the instance of a legitimate party, that they proceed without delay to the discharge of their duties, admonishing them that they will be held liable for losses and damages suffered. If the arbitrators refuse to act, or allege some excuse, such refusal or excuse shall be heard and determined according to the procedure for, and with the remedies allowed in incidental issues, the period of the compromise being meanwhile suspended. If the refusal or excuse is overruled, or if the order of the court is complied with, the party prejudiced may institute an action for losses and damages against the arbitrator or arbitrators who may have caused the delay, which shall be heard in the court of first instance, according to the procedure prescribed for the proper declaratory action. ART. 797. Arbitrators may be challenged only for causes arising after the compromise, or which were unknown when it was agreed upon. ART. 798. Arbitrators may be challenged for the same causes as any other judges. The challenge-must be presented to the arbitrators themselves. If they do not allow the challenge, the party presenting the same may repeat it before the judge of first instance of the judicial district in which the challenged arbitrator resides, or before the judge of the 5190 11

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162 LAW OF CIVIL PROCEDURE. judicial district of any of them, should there be more than one arbitrator challenged. Until the challenge is heard by the judge of first instance, the arbitration proceedings shall be suspended, and shall continue as soon as a final decision has been rendered thereupon. ART. 799. The compromise shall become null: 1. By the unanimous consent of those who agreed to the same. 2. By the expiration of the period fixed in the compromise and of any extension thereof, in a proper case, without a decision having been rendered. If this should occur owing to the fault of the arbitrators, they shall be bound to indemnify any losses and damages suffered.' ART. 800. Should any or all of the arbitrators die, the interested parties must agree to substitute them in the manner designated for the original appointment, unless they agree that the remaining arbitrators render a decision. The proceedings meanwhile shall be suspended, to be continued afterwards at the stage in which they may be. All agreements entered into by the parties shall be reduced to a public instrument, and if they do not agree the compromise shall be of no effect. ART. 801. The period fixed in the compromise for the rendition of a decision shall begin on the day following that on which the last arbitrator accepted his appointment, unless the parties interested should have fixed a day in the instrument.2 ART. 802. The interested parties may by common consent extend said period, in a public instrument supplementary to the compromise. The arbitrators may also extend the period when such power has been expressly granted them in the instrument; but in such case the extension can not exceed one-half of the period designated in the compromise, and must be unanimously agreed upon. ART. 803. The proceedings by arbitration shall be held before a clerk of a court of first instance, selected by the arbitrators, unless the interested parties designate one by common consent. ART. 804. The arbitrators shall fix a period for the interested parties, which can not exceed the fourth part of that fixed in the instrument, to prepare their claims and file the documents on which they base the same. If any of the parties in interest should not do so, the proceedings 'This article relates only to settlements by arbitrators and not by amicable coinpounders.-Decision of October 19, 1866. 2 The period fixed in the instrument of compromise within which amicable cornpounders are to render their decision is a continuous period, and thus holidays can not be deducted, unless this stipulation was made in the compromise.-.Decision of March 17, 1888,

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LAW OF CIVIL PROCEDURE. shall continue in his default, without prejudice to the right to require said party in default to pay the fine stipulated for failure to comply with the acts indispensable to perfect the compromise. The party in default may appear and be heard at any stage of the proceedings, but in no case shall there be any retrogression thereof. ART. 805. The claims and documents which are presented, shall be mutually communicated by the parties to each other, by means of copies which are to be attached thereto, as prescribed in articles 514 et seq., and they shall be granted a period for replying thereto which shall not exceed one-fourth of the time indicated in the preceding article for preparing and presenting the same. ART. 806. Within said period each of the parties may impugn the claims of the opposite party and present the documents which they may consider necessary for the purpose. These documents shall state whether the taking of evidence is or is not considered necessary by them. ART. 807. As soon as the periods fixed for the preparation of claims and the answers thereto have expired, the arbitrators shall take evidence in the proceedings, should both parties have requested it or if there is not an agreement between them as to facts of direct and well-known influence in the questions which are the object of the proceedings. ART. 808. Although neither of the parties may have requested the admission of evidence, the arbitrators may take it, determining the facts to which it should be confined. In such case the evidence can not be extended to any other point at issue. ART. 809. The period for the admission of evidence can not exceed the fourth part of that fixed in the compromise. The time for submitting and taking evidence shall be common to all parties, within which that relating to challenges, in a proper case, must also be taken. ART. 810. The same means of proof are admissible in proceedings before arbitrators as in declaratory actions of greater import. The proceedings requested for the taking thereof shall be pursued with the same formalities and in the same manner. The interested parties shall be allowed to take copies or memoranda of the testimony taken. ART. 811. In proceedings for the taking of evidence, which the arbitrators themselves can not perform, they shall call upon the judge of first instance, who shall issue mandates, letters rogatory, and other processes for the taking of evidence, which may be necessary. ART. 812. At the conclusion of the period for the taking of evidence, and after that taken has been attached to the proceedings had, the arbitrators shall cite'the parties for judgment. Before pronouncing judgment they may hear the parties or their 183

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164 LAW OF CIVIL PROCEDURE. attorneys, if they believe it necessary, or the parties request it, setting a day for the hearing.1 ART. 813, The arbitrators, before rendering their decision, may, in the furtherance of justice, order any of the proceedings mentioned in article 340. ART. 814. The arbitrators shall render their judgment upon all of the points subject to their decision, within the period remaining of the time fixed in the compromise or in the extension thereof, should the same have been granted. ART. 815. The judgments of the arbitrators should be according to law and the claims and evidence, and shall be rendered in the manner and with the formalities provided for judgments in ordinary actions. ART. 816. An absolute majority vote of the arbitrators, when there are more than one, shall be sufficient to render a judgment. Should there not be a majority of affirmative votes, the vote of each arbitrator shall be entered in the record in the form of a judgment. The points upon which they disagree shall be submitted to the judge of first instance of the judicial district, and his decision shall be the judgment, whether it agrees or not with the vote of any of the arbitrators. ART. 817. The judgment of the arbitrators, or that rendered by the judge of first instance, in a proper case, may be appealed from for review and stay of proceedings to the audiencia of the district. AR. 818. Said appeal must be taken within the five days following that of the notification of the arbitral judgment, or that of the judge of first instance in a proper case. On taking the appeal, or within three days thereafter, the appellant must show that he has paid the fine agreed upon in the compromise, to the party who has agreed to the judgment, or deposit the same in the clerk's office for delivery to him, without which requisite the appeal shall not be entertained and the judgment shall become final. ART. 819. If both parties shall have appealed from the judgment, neither shall be obliged to pay the fine. If the appellee, after having received the amount of the fine, should join in the appeal to the superior court, he shall return the fine to the appellant, with the legal interest. ART. 820. Against the orders of the arbitrators issued during the prosecution of the proceedings no other remedy shall be allowed than that of a rehearing within five days. If the rehearing be denied, and if the request for a rehearing should be based upon some defect in the form of the compromise, or upon the procedure which might affect the validity of the proceedings, a petition for annulment may be interposed, together with the appeal from the judgment. 1 Article 799 of the former law did not require a citation for judgment, and the Supreme Court had declared that this proceeding, which is indispensable at the present time, was not only unnecessary, but improper.-Decision of May 81, 1878. I;1

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LAW OF CIVIL PROCEDURE. ART. 821. When the appeal is allowed, with the petition for annulment in a proper case, the procedure established in article 386 shall be observed, transmitting the record to the audiencia through the judge of first instance. ART. 822. The prosecution of these appeals shall conform to the rules established for appeals from final judgments in actions of greater import. From judgments rendered by audiencias, an appeal for annulment of judgment lies in the cases, and in the manner established for such actions. ART. 823. When a compromise is entered into for the purpose of deciding an unfinished action pending in first instance, as soon as the compromise is presented, together with the acceptance of their appointment by the arbitrators, the judge shall order that the further hearing of the proceedings be had before said arbitrators, the clerk in whose office the records are located advising the said arbitrators thereof. ART. 824. If the compromise is entered into in order to decide an action pending in second instance, the arbitrators shall continue the proceedings according to law, and their decision shall have the same effect as that of the audiencia. ART. 825. An appeal for annulment of judgment shall lie against their decision, in the cases and with the requisites which may be proper for said appeal from judgments of audiencias in declaratory actions. In such case said appeal shall not be allowed, if the appellant, at the time he takes the same, does not show that he has paid to the other party the fine agreed upon in the compromise. SECTION II.-Settlement by amicable compounders. ART. 826. Amicable compounders, appointed by those who have the legal capacity to decide the questions mentioned in article 486, must be men of legal age, in the full enjoyment of their civil rights, and know how to read and write. ART. 827. The provisions of articles 790 to 796 and articles 799 to 802, inclusive, relative to arbitrators, shall be applicable to amicable compounders without any other modification than the following. The compromise must contain, under the penalty of nullity, the details mentioned in subdivisions 1, 2, 3, 4, and 8 of article 792.' 'The provisions contained in this article of the law are not applicable to the appointment of amicable compounders imposed by a testator upon his heirs, because they refer to a voluntary compromise which does not exist in the case mentioned in which the appointment of compromisers must be made, even though the heirs do not agree as to the designation of the third member.-Decision of J1dy 11, 1877. Article 827 of the new law inl conjunction with article 790 expressly authorizes the submission of the decision to a single amicable compounder, and does not require 185

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LAW OF CIVIL PROCEDURE. ART. 828. These compromises produce all the legal effects of other obligations, and may be invalidated for the same reasons.' ART. 829. The parties are obliged to perform all that may be necessary in order to carry out the stipulations of the compromise. The party not doing so must pay to the other the losses and damages thereby caused. The question of such damages shall be heard before the judge of first instance, and shall be determined according to the procedure established for incidental issues. ART. 830. Amicable compounders can not be challenged except for causes arising subsequently to the compromise, or unknown at the time of its execution. The following only shall be considered as legal causes for such challenge: 1. Interest in the subject which is the object of the action. 2. Manifest enmity toward any of the parties. ART. 831. The challenge must be interposed before the amicable comthe appointment of a third one; but it does require that the number of arbitrators be uneven. (See article 790.) The period within which amicable compounders are to render their decision is governed by the agreement of the parties contained in the compromise and is counted continuously, as are all periods which refer to the fulfillment of contracts unless feast days are expressly excepted.-Decision of -March 20, 1877. Two persons in a private letter addressed to two attorneys contracted the obligation to submit to their decision, as if it were the decision of amicable compounders, and one of said parties refused to comply therewith; he was sued and a decision was rendered declaring that the compromise was null. The other person interested appealed from said decision requesting an annullment thereof, basing his claim upon the principle of pact stnt servanda, but the Supreme Court declared that the appeal was not well taken, because "as article 827 of the law of civil procedure in conjunction with articles 790 et seq. prescribes that compromises of this character must be contained in a public instrument, under penalty of nullity, and that said document shall contain certain details, all of which was omitted in the papers herein referred to, it is evident that the adjudging chamber duly conformed to the legal precepts in declaring the compromise null and void.'"-Decision of May 28, 1888. 'The compromises of amicable compounders produce all the consequences of other obligations, and, as in the latter, the limits and extension of the stipulations of the parties are to be understood and explained according to the contents of the instrament, without extending them to things and cases which are not expressly included therein.-Decision of February 22, 1878. The Supreme Court has declared that, in accordance with article 829, together with number 3 of article 793 of the law of civil procedure, the powers of amicable compounders are limited by the will of the parties and that they can not consider cases and things which have not been expressly and finally submitted for their decision. Amicable compoimders can not appeal to irrelevant interpretations for the purpose of extending their powers without violating the only substantative law to which they must confine themselves, which is the will of the parties, expressly stated in the instrument of the compromise, the clauses of which must be strictly interpreted, as otherwise the amicable compounders would decide questions and cases not submitted to them.-Decision of December 10, 188,. 1866

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LAW OF OIVIL PROCEDiflRE. pounders themselves. Should it not be admitted by them, it shall be heard in the manner prescribed in article 798 with regard to arbitrators. ART. 832. Amicable compounders shall decide the questions submitted to their decision according to their knowledge and belief without being subject to legal forms. Their duties are limited to the receiving of the documents presented by the interested parties, hearing said parties, and rendering judgment. ART. 833. An absolute majority vote shall be necessary to. render judgment. If there is not a majority, the compromise shall be without effect. ART. 834. The judgment must be rendered before a notary, who shall give notice of the same to the interested parties by delivering to them an authenticated copy thereof, stating the date of the notification and delivery, and a note of which service shall also be made at the end of the original judgment, which shall be signed by the interested parties. ART. 835. From the judgments rendered by amicable compounders there shall be no remedy except that of an appeal for annulment of judgment, for the reasons and within the time and in the manner prescribed therefor in Title XXI of this book.2 ART. 836. If the appeal for the annulment of judgment is not allowed, or if not interposed in time, the judgments shall become final, and, at 'This article does not make a hearing of the parties obligatory.-Decision of October 19, 1865. An appeal for annulment of judgment from decisions of amicable compounders does not lie when they are given power to fix the amount of the indemnity due the appellant and they decide that he is not entitled to any indemnification.-Decision of JLine 12, 1893. When it is clearly and definitely agreed that all doubts which may arise with regard to the interpretation of a contract and its execution are to be submitted to amicable compounders in accordance with law, claims with regard to which there is no agreement between the parties, whether just or not, or whether included in the stipulations of the contract or otherwise, must be submitted for the decision of the amicable compounders.-Decision of December 30, 1881. Should a compromise have been made to the effect that arbitrators are to decide as to the meaning and scope of doubtful clauses of a contract, it is sufficient for the parties to give a different interpretation to one of them for a doubt to exist and give rise to proceedings by amicable compounders.-Decision of March 29, 1886. The compromise being limited to a declaration by the amicable compounders as to whether the parties are or are not entitled to an indemnity for losses and damages, an award which taxes, liquidates, and orders said indemnity to be paid is null according to law.-Decision of February 22, 1878. 2The power having been granted to the parties to a compromise executedlin 1864 to render the award without effect by paying the fine agreed upon, such clause constitutes a perfect right based upon article 302 of the law of commercial procedure, and a judgment which does not recognize the same violates this precept, because neither the law relating to the unification of the local laws ( fueros), nor the latest civil procedure have repealed substantive rights legitimately acquired.-Decision of March d1, 188<. 167

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168 LAW OF CIVIL PROCEDURE. the instance of a legitimate party, they shall be executed by the judge of first instance in whose district is situated the town wherein the judgment was rendered, proceeding in the manner prescribed for the execution of other judgments. ART. 837. In order to request the execution of the judgment, certified copies of the compromise and of the arbitral judgment shall be presented, issued by the notary who authenticates the same. After the twenty days have elapsed prescribed in this code for the appeal for the annulment of judgment against judgments rendered by amicable compounders, the judge shall order, if requested, the execution of the judgment; but if the judgment debtor proves that an appeal for the annulment of the judgment has been taken and admitted, the judge shall at his instance annul and suspend all proceedings relating to the execution, taxing the cost against him who requested execution, unless he should have given the bond prescribed in the following article. ART. 838. The judge shall also order the execution of the judgment of the amicable compounders immediately after they have rendered the same, and even though an appeal for annulment of judgment has been taken and allowed, providing that he who requests the execution of the judgment should furnish security sufficient, in the opinion of the judge, to cover what he may have received and to pay the costs, in case that the annulment of the judgment should be declared. TITLE VI. THE SECOND INSTANCE.' SECTION I.-General p]flYMrofi ART. 839. Every appellant must appear before the appellate court within the period fixed in the summons. If he does not do so the appeal shall be dismissed at the expiration of said period, without the necessity of having default entered, and the judgment or ruling appealed from shall become final without further remedy.2 See footnote No. 2, page 3, under laistan cia. 'A petition for a review may be made against an order declaring that an appeal has been abandoned, in accordance with article 890.-Decision of March 26, 1860. An appeal is not considered as abandoned until the court so declares.-Decision ofjpril6, 1864. It is not necessary for the chamber to cite the parties to enter the appeal, because if the appellant does not appear within the period of the sununons the appeal shall be declared abandoned upon the first request of the appellee for an entry in default.-Decision of April 24, 1869. At the present time a request for a declaration of default is not necessary. C Powers of a court after an appeal for a review and for a stay of proceedings has been allowed.-In an appeal for annulment of judgment, in which articles 70 and 838 of the law of civil procedure of 1855 (383, 388, and 840 of that of 1881) and law 26,

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LAW OF CIVIL PROCEDURE. ART. 840. In cases in which, an appeal having been allowed for review only, the appellant is furnished a certified copy thereof to perfect it, the audiencia shall not allow the appeal and shall declare it dismissed without the necessity of having default entered if the appellant appears after the fifteen days fixed in article 392. The same shall take place with regard to the remedy of complaint referred to in article 398. ART. 841. In all cases wherein an appeal is dismissed, the costs-thereof shall be taxed against the appellant, and the order taxing the same shall be communicated to the inferior judge with a return of the record, in proper case, for the proper purposes. An entry shall be made on the order returning the record, by the secretary, of the fees due and the amount to be paid for the official stamped paper which may have been used according to the provisions of the second paragraph of article 248, in order that said amounts may be demanded of the appellant. ART. 842. If the appellee does not appear before the superior court, the proceedings shall follow the regular course, and orders issued therein shall be posted within the limits of the court room. Should he appear later, he shall be admitted as a party to the action, and all subsequent proceedings shall be communicated to him or to his solicitor without retrogressing in the proceedings. ART. 843. If the appellant is entitled to prosecute or defend as a poor person, he shall be considered as having entered an appearance in time before the superior court, if within the period fixed in the summons he appears personally or through another person and requests that an attorney and solicitor be appointed em officio to take charge of his defense. The same petition may be made when he is summoned, in which case the clerk shall make an entry of the fact in the proceedings. In these cases the court shall make the appointments, if he is entitled to prosecute or defend as a poor person, and the solicitor appointed em ofico shall be served with all proceedings as the representative of the appellant. ART. 844. An appellee who has the same privilege may in like manTitle XXIII, Partida 3, were cited as violated, the supreme court, in allowing the appeal, stated: "That as soon as an appeal is allowed for a review and for a stay of proceedings, the adjudging court shall absolutely cease to take cognizance of the proceedings, only retaining powers of coercion to oblige the appellant to furnish the means necessary to perfect the appeal, if he does not abandon it expressly and finally, and that the court ad quem is the only one which is competent to declare the appeal abandoned after it has been allowed."-Decision of April ?9, 1882. The lack of personality in the solicitor of the appellee does not produce the effect of annulling a ruling declaring an appeal to be abandoned, because it could be made without a prior entry of default.-Decision of December 31, 1887. 169

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LAW OF C1VIL PROCEDURE. ner request the appointment of an attorney and solicitor em offlco at any stage of the appeal. ART. 845. An appellant may abandon the appeal at any stage of the proceedings, on the payment of the costs incurred by the opposite party thereby. In order to consider an appeal as abandoned, it is necessary that the solicitor present a special power of attorney, or that the litigant interested ratifies said abandonment under oath in the instrument.' ART. 846. Within the three days following the delivery of the copy of the petition to abandon the appeal, the appellee may impugn the same on the ground of the insufficiency of the power of attorney or lack of personal capacity on the part of the litigant, which defects, if true, the audiencia shall order to be cured within a short period fixed for said purpose. If this period should elapse without its having been done, the appeal shall, at the request of the appellee, proceed in its regular course. ART. 847. After the defects have been cured, or when the appellee does not impugn the petition, the audiencia shall, without further proceedings or remedy, consider the appellant to have abandoned the appeal, taxing the costs upon him, and thus make the judgment appealed from final, and order that notice thereof be communicated to the inferior judge, with the return of the record, in a proper case. ART. 848. If the appellee should desire to continue with the appeal, and therefore, within the three days prescribed in article 846 should object to the abandonment thereof, the audiencia shall permit the appellant to withdraw, and tax all costs against him incurred up to that time, proceeding with the appeal for the purpose of determining such points of the judgment which relate to the concurrence of the appellee. The same action shall be taken if the appellee within said period should state that he concurs in the appeal, in the event that the withdrawal of the appellant took place before that stage of the action in which said remedy could be employed according to articles 857 and 891.2 ART. 849. As soon as a judgment rendered on an appeal becomes final, it shall be communicated to the inferior judge for execution at the cost of the appellant by means of a certified copy and letters mandatory. If there has been an adjudgment upon costs the same shall first be taxed. ART. 850. The certified copy referred to in the foregoing article 'A court can not consider an appeal as abandoned, even though the appellee consents to all the petitions of the appellant, without the previous conformity of the latter with said declaration.-Decision of May ?9, 1888, 2 When the appellee concurs in the appeal, it can not be considered that the judgment has been accepted by him.-Decision of December 14, 1865. 170

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LAW OF CIVIL' PROCEDURE. shall contain the final judgment, and, in a proper case, the taxation and approval of costs. A memorandum of said certified copy shall be made in the office of the clerk of the audiencia and a literal copy thereof shall be entered in its register. ART. 851. A transcript of the final judgment in the action shall also be issued, with the formalities and in the manner prescribed in article 373, when any of the parties request it for the protection of his rights. This writ shall be issued at the cost of the party requesting it, after the opposite party has been cited to appear at the hearing of such request, and it shall also be recorded in the office of the clerk of the audiencia. ART. 852. Without prejudice to the issue of transcripts or to the taxation of costs in a proper case, the final judgment shall be immediately communicated to the inferior judge for its execution, if any of the parties request it. ART. 853. Appeals which may be taken from decisions of municipal judges to those of first instance shall be governed by the special provisions therefor without prejudice to the application of the rule prescribed in article 839. SECTION 11.-Appeals from final judgments rendered 'in actions of greater import. ART. 854. When the record of proceedings has been received by the audiencia receipt thereof shall be acknowledged, and as soon as the appellant has appeared, within the proper period and in due form, the record shall be referred to the relator for the making of the abstract.' ART. 855. When the abstract has been prepared, it shall be delivered with the record to each of the parties in their order for the examination of their attorneys, for a period not less than ten nor more than twenty days. This period may be extended to thirty days at the instance of a party only in case that the record exceeds 2,000 folios. In such case the extension granted to the appellant shall be understood as granted also to the appellee, without the necessity of the latter requesting it. ART. 856. Both the appellant and the appellee shall, on the return of the record, present an instrument subscribed by an attorney, stating that they agree to the abstract, or indicating the additions or corrections which they may consider necessary. ART. 857. In said instrument the appellee may concur in the appeal on the points in which he believes himself prejudiced by the judgment. 1It is not legal for parties to an action to alter the essential bases of an action or of exceptions discussed at first instance, and thus ignore the mission which appellate courts have according to law.-eci ion of June 26, 1884. 171

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LAW OF CIVIL PROCEDURE. Neither before nor after this time can this remedy be employed.1 ART. 858. If any essential formality has been omitted in the first instance, which would give rise to an appeal for annulment of judgment, and an appeal based thereon is disallowed, the interested party may, in a supplementary prayer in the instrument referred to in article 856, request that the defect be cured. This petition shall be heard and decided before any other proceedings, and according to the procedure prescribed for incidental issues. Said petition can not be interposed when it has already been denied by a final order of the audiencia by virtue of a former appeal.2 ART. 859. In the same instrument, the parties may request by means of a supplementary prayer, that evidence in the action be taken, when they consider it necessary and proper, giving the reasons upon which they base their request.8 ART. 860. In any of the cases mentioned in the three foregoing articles a copy of the instrument must also be attached for delivery to the opposite party. ART. 861. The taking of evidence at second instance can only be ordered1. In the case of article 566, if the chamber should deem that the testimony proposed and denied in the first instance is pertinent. 2. When for any cause not imputable to the party requesting the taking of evidence, it was impossible to take all or a part of that which was offered in first instance. 3. When any new fact pertinent to the decision of the cause has arisen after the termination of the period for the offering of evidence at first instance. 4. When after the termination of said period, some previously unknown fact of decided influence in the action comes to the knowledge of any of the parties, provided that said party states under oath that he had no previous knowledge of said fact. 'When a judgment has been appealed from, even though it be only in one of its points, it is not res judicata in any of the others.-Decision of January 11, 1876. Although the appeal taken by one of the appellants is dismissed, he may afterwards concur in the appeal of the opposite party (Decision of February 15, 1886), his concurrence having the same effects as the appeal itself.-Decision of April 8, 1885. 2 This petition must be heard and decided according to the procedure prescribed for incidental issues, and the remedies authorized by article 401 must be employed against decisions denying the same.-Decision of March 19, 1885. 3In order that the taking of evidence may be ordered in the second instance, it is y indispensable that it be of well-known influence in the action and that the party state under oath that he had no knowledge of the existence thereof before the expiration of the period in which to submit evidence at first instance.-Decision Qf November 26, 1885. In order that evidence may be admitted at second instance, it is indispensable that the requisites of law therefor have been fulfilled, and if the taking of evidence has been requested after the record has been ordered to be heard, the petition can not be allowed.-ecision of Tnuary 14, 1880. 172

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LAW OF CIVIL PROCEDURE. 5. When the defendant whose default has been declared appears in the action at either of the two instances, after the time granted for the submission of evidence in first instance. In the first four cases the evidence shall be limited to the facts therein referred to; in the last case all pertinent evidence submitted by the parties shall be admitted.' ART. 862. Without the necessity of taking evidence in the cause, the litigants may request at any time between the delivery of the record for examination until the citation for judgment: 1. That the opposite party be obliged to make a single judicial confession, providing it be with reference to facts which have not been the object of interrogatories in the first instance. .2. That any of the documents mentioned in article 505 be attached to the record or that the parties themselves be required to present them. The submission of evidence in the second instance can take place only in the special cases mentioned in the Law of Civil Procedure, and can not be submitted when in the judgment of the chamber it could have been submitted at first instance.Decision of April 5, 1879. The nonreturn, duly executed, of letters rogatory for the taking of some testimony is imputable only to the person interested, because judges and courts can not act, ex officio in civil matters, and, consequently, said noncompliance with the letters rogatory can not authorize the taking of evidence in the second instance.-Decision of January 18, 1879. The admission of evidence in the second instance is not proper if it consists of documents bearing a date prior to that of the complaint and answer, which, even though they came to light subsequently, the oath prescribed in article 506, subdivision 2, of the Law of Civil Procedure is not taken upon the presentation thereof.Decision of October 27, 1888. "The admission of evidence during the second instance can take place only when it could not be taken in the first instance, for causes not imputable to the petitioner," and it appearing that the evidence subsequently submitted to the chamber was not submitted in the inferior court, notwithstanding that the existence and whereabouts of the documents were known at the time, said evidence can not be admitted.Decision of April 27, 1890. Although a litigant should state under oath that a certain fact was unknown to him, if data is in question which may be known by any person, his affirmation will not be sufficient to order the taking of evidence in the second instance.-Decision of May 17, 1888. In order that the confession referred to in this article may be ordered in the second instance, it is necessary for the party requesting it to submit the interrogatory of the questions to be put therein, for the purpose of ascertaining whether the confession requested is in conformity with the provisions of the said article.Decision of October 16, 1889. Interrogatories can not be considered proceedings for the taking of evidence, and, therefore, are not admissible in the second instance when an executory action is in question.-Decision of September 21, 1888. After the parties have been cited for judgment, judges and courts can not admit evidence or proof of any character whatsoever, although they have the privilege of 173

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LAW OF CIVIL PROCEDURE. ART. 863. When the appellant requests that evidence be taken, the appellee must reply to this request in the instrument referred to in article 856. If the appellee makes such request, the appellant may object thereto within the three days following the delivery to him of the copy of the petition of the appellee. ART. 864. The chamber shall order the admission of evidence without further proceedings, provided that the parties agree that it is necessary and proper. ART. 865. If the parties should not agree thereto, the record shall be referred to the ponente for six days, and, in view of his report, the chamber shall decide what it may deem proper within three days. ART. 866. There shall be no appeal from the ruling ordering the taking of evidence. Against the ruling denying the request for the taking of evidence there shall be granted the remedy of a petition for review before the same chamber and, in a proper case, an appeal for annulment of judgment. ART. 867. With regard to the periods and means of proof and manner of taking evidence, the procedure established for the first instance in actions of greater import shall be observed. ART. 868. After the expiration of the period for the taking of evidence, or as soon as all that submitted and admitted has been taken, the chamber shall order, without necessity of the parties requesting it, that the evidence be attached to the record and that the latter be returned to the relator in order that he may make the necessary additions to the abstract. ART. 869. After the additions to the abstract have been made it shall, with the record, be referred to each of the parties for examination for a period of six days, which period can not be extended. Upon returning the record, the parties shall state whether they agree to the additions to the abstract, or request the new additions or corrections which they may consider necessary. ART. 870. Both in the case of the foregoing article, as in that of article 856, after the record has been returned by the appellee, it shall be referred to the justice ponente for a period equal to that granted to the parties for their examination, for the purposes prescribed in articles 336 et seq. ordering such evidence to be taken v s they may see fit, in furtherance of justice.Decision of February 22, 1862. The Law of Civil Procedure authorizes the parties to demand judicial confession until the service of the notice of citation for judgment, and this would be absolutely useless if it were not understood that the same period is allowed for the proceedings after said judicial confession had been requested and granted.-Decision of March 8, 1870. 174

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LAW OF CIVIL PROCEDURE. ART. 871. When the parties agree to the abstract, or when the corrections or additions which in view of the report of the justice ponente the chamber deems proper among those requested by the parties, it shall order that the record be brought to a hearing, and cite the parties for judgment. ART. 872. After the parties have been summoned and the hearing has been held in the manner prescribed in articles 321 et seq., the chamber shall render judgment within fifteen days, counted from the one following the conclusion of the hearing. ART. 873. If the chamber deems it necessary to order any of the proceedings referred to in article 340, in furtherance of justice, the period for rendering judgment shall be suspended and shall again commence as soon as the proceedings had have been attached to the record. ART. 874. If any of the parties intend to take an appeal for annulment of judgment from the judgment rendered by the audiencia, the proceeding prescribed in title 21 of this book shall be observed. If this appeal is not prepared and interposed within the legal period, the provisions of article 849 shall be observed. ART. 875. When the parties request it, or when, at the instance of any of them, the chamber so orders, a written or printed argument will be permitted in place of an oral argument. Such request must be made within the three days following that of the citation of the parties for judgment. ART. 876. If all of the interested parties unite in requesting that the argument be written or printed, the chamber shall so order, whatever be the character or importance of the cause. Otherwise the opposite party shall be heard within three days upon any petition made of this character, and if he does not agree the chamber shall decide what it considers proper in view of what both set forth. ART. 877. In order that a written or printed argument may be granted in the case of the last paragraph of the foregoing article, it is necessary1. That it be a declaratory action of greater import. 2. That, owing to its importance, in the opinion of the chamber, a written argument is more convenient for the information of the judges than an oral argument. ART. 878. The period within which a written or printed argument must be presented shall be that agreed upon by the parties, when they have agreed upon such argument; otherwise, the period fixed by the audiencia when passing upon the request thereon. ART. 879. The period fixed by the audiencia can not be less than thirty nor more than sixty days. Within this term the one fixed may be extended, providing that the parties agree thereto, or when the court for any just cause considers it proper. 175

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LAW OF CIVIL PROCEDURE. ART. 880. The audiencia shall, in view of the length of the arguments, fix a time for the printing thereof. This period may be extended when circumstances independent of the will of the parties require it, in the judgment of the chamber. ART. 881. There shall be no remedy whatsoever against orders of the audiencia permitting written or printed arguments and relating to the period for their preparation. ART. 882. In all cases where written or printed arguments are submitted, the abstract of the action must also be printed and attached thereto. ART. 883. After the argument has been printed, copies thereof shall be distributed to each of the justices who are to take part in the decision of the action, signed by the relator, attorney, and solicitor of the parties, and another shall be attached to the record. ART. 884. The period of time for the rendition of judgment in cases where a written or printed argument has been presented shall commence to be counted from the day following that on which the copies were delivered to the justices, a memorandum of which shall be entered upon the record by the clerk of the chamber or by the secretary. ART. 885. If the justices do not agree upon a decision, after such disagreement has been recorded in the manner prescribed, copies of the argument shall also be given to the justices. selected to adjust the disagreements. The period for the rendition of judgment shall commence to be counted from the date of said delivery. SECTION III.-Appeals from interlocutory udgments and rulings and ,in actions other than those of greater import. ART. 886. All appeals, both from rulings as well as from judgments, except final judgments in actions of greater import (which are referred to in the preceding section), shall be heard and determined in the manner prescribed in this section. Appeals in actions of lesser import are also excepted, which shall be heard and determined according to the special procedure provided therefor. ART. 887. As soon as the record has been received by the audiencia, it shall ackn pledgee the receipt thereof, and as soon as the appellant has appeared within the proper time and in the proper manner, it shall be referred to the relator for the purpose of preparing an abstract of such matters as may be pertinent to the flppeal. ART. 888. In cases in which a certified copy is furnished the appellant for the purpose of perfecting an appeal admitted for review only before the superior court, the record shall also be referred to the relator for the preparation of the abstract as soon as the appellant has perfected the appeal, should be do so within the legal period, 176

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LAW OF CIVIL PROCEDURE. 177 ART. 889. After the abstract has been prepared it shall be delivered, together with the record, to each of the parties in their order, for examination by their attorneys, for a period not less than six nor more than ten days, which period can not be extended. ART. 890. Both the appellant and the appellee on returning the record shall state, in an instrument subscribed by their attorneys, their agreement to the abstract, or shall request the changes and additions which they may consider proper. ART. 891. In this instrument the appellee may concur in the appeal in such portions of the judgment or ruling in question which he considers prejudicial to him. Neither before nor after this stage in the proceedings can he employ this remedy. ART. 892. The claims referred to in articles 858 et seq., when proper, must also be set forth in said instruments, and, in a proper case, the provisions of article 860 shall be observed. ART. 893. After the record has been returned by the appellee, it shall be referred to the justice ponete for his examination for a period equal to that granted to the parties. ART. 894. When the parties have agreed to the abstract, or when the changes or corrections which, in view of the report of the justiceponente, the chamber believes to be pertinent have been made, at the request of the parties a hearing shall be ordered and the parties cited to appear. ART. 895. After the hearing, the chamber shall render its decision in the form of a ruling or judgment, as may be prescribed for like decisions in first instance. Such decision shall be rendered within five days in matters as are declared preferred by article 321, and in all other cases within eight days. ART. 896. The taking of evidence can be authorized only in these appeals when such evidence by law may be taken in the first instance, and any of the cases mentioned in article 861 is attendant.' AR. 897. The period for the taking of evidence can not in such case exceed that granted by law for the first instance, and the chamber may fix the time which it may consider necessary within said period, which can not be extended. Evidence shall be taken in the same manner as prescribed for the first instance. ART. 898. The provisions of articles 862, 863, 864, 865, 866, 873, and 874 shall also be applicable, in a proper case, to the appeals herein referred to. ART. 899. When the evidence has been attached to the record at the time and in the manner prescribed in article 868, it shall be subxA petition for a rehearing may be made before instituting in a proper case an appeal for annulment of judgment against a ruling which denies the admission of evidence in the second instance.-Decision of January 9, 1886. 5190 12

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LAW OF CIVIL PROCEDURE. ject to examination by the parties in the office of the relator, or of the clerk of the chamber, for four days common to both parties. ART. 900. Upon the expiration of this period, the relator shall present his report, and the chamber shall order a hearing with citation of the parties for judgment. ART. 901. Between the date of this order and the day set for the hearing, the relator shall add to the abstract the evidence taken. TITLE VII. THE REMEDY OF CIVIL LIABILITY AGAINST JUDGES AND ASSOCIATE JUSTICES.1 ART. 902. The civil liability which may be incurred by judges and associate justices, when, in the discharge of their duties, they violate the law through inexcusable negligence or ignorance, can be enforced only at the instance of the party prejudiced or of his legal representatives in a declaratory action and before the court immediately superior to the one in which the liability may have been incurred.2 ART. 903. An action for civil liability can not be instituted until the action or cause in which the injury is alleged to have been committed has been concluded by a final judgment or ruling.3 ART. 904. Said action must be instituted within the six months following that in which the final sentence or ruling was rendered, which concluded the action or cause. After this period an action for civil liability is barred.' ART. 905. The person who has not employed at the proper time the legal remedies against the judgment, ruling, or order in which it is alleged that a violation of law was committed, or who did not object 'See articles 400 et seq. of this law, and articles 8 and 260 to 266 of the Organic Law. 2Civil liability, in accordance with the provisions of chap. 2, Title V, of the Organic Law of the Judicial Service, and Title VII, Book II, of the Law of Civil Procedure, presupposes loss or damage, which, for the purposes of the remedy, can not be caused by the decisions of judges or associate justices, except to the persons who take a direct part in the proceedings or action of which the former take cognizance as parties thereto.-Decision qf April 21, 1884. # Article 81 of the constitution, with regard to liability, contains only one precept which is to be extended by the laws governing the different kinds of liabilities, officials liable, and manner of enforcing said liability, and as the Law of Civil Procedure limits the liability to judges and justices it can not be extended to others.-Decision of January 7, 1886. a 3The Organie Law of the Judicial Service, which established the remedy of civil liability against judges and associate justices, as well as the Law of Civil Procedure at present ifl force, which regulates the procedure to enforce the same, forbid the institution of an action for liability by a person who has not at the proper time made use of the legal remedies against the judgment, ruling, or order which is supposed to have caused the injury, or if he should not have objected at the proper time when lie had a right to do so.-Decision of November 8, 1883. 4 This provision includes private individuals, as well as corporations or the State.Decision of February 8, 1886. 1i8s

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LAW OF CIVIL PROCEDURE. thereto at the proper time during the course of the action, if he could have done so, can not institute an action to enforce civil liability.' ART. 906. To every complaint in an action for civil liability, shall be attached a transcript or certificate containing1. The judgment, ruling, or order in which the violation is said to have been committed. 2. The proceedings which, in the judgment of the party, go to show the violation of law or of procedure prescribed by law, under penalty of nullity, and that at the proper time the proper remedies or objections against them were used. 3. The judgment or final ruling which closed the action or cause. ART. 907. The certificate or transcript to which reference is made in the foregoing article shall be requested. of the inferior or superior court where the record is filed. The clerk or secretary shall issue a receipt for the petition requesting the said documents. The superior or inferior court shall order, under its liability, that said document be furnished without delay, and may order also that such details be added thereto as may be deemed necessary, in order that the truth of the facts may appear. ART. 908. If ten days, counted from the date of the presentation of the petition, should elapse without said certificate or transcript being furnished to the party, the petitioner may appeal in complaint to the court which is to take cognizance of the matter, which shall require the inferior court to transmit said record within a short period, or shall demand the original record, should it consider it more advisable, and if said record is not required for the execution of the judgment. In such cases the records shall be exhibited to the plaintiff, or the transcript shall be furnished him in order that he may prepare his complaint, retaining, in a proper case, the record until the conclusion of tha action of civil liability. ART. 909. Whatever be the court which is to take cognizance of the action, it shall be heard and decided according to the procedure prescribed for declaratory actions of greater import. ART. 910. When the complaint is against a municipal judge, the judge of first instance of the judicial district to which the municipal court belongs, shall take cognizance thereof. Against the judgment rendered by said judge, an appeal lies to the audiencia for review and stay of proceedings.' 1 This article does not allow the remedy of civil liability until the remedies allowed by law for the purpose of correcting a violation of law, which is supposed to have been committed, have been utilized.-Decision of Janwry 16, 1888. 'The parties can not make use of any other means than those prescribed in this title for the execution of judgments.-Decision of October 22, 1888. The delivery of a thing which is the subject of an action is a natural consequence of the ownership which is invoked.-Decision of -March 21, 1888. The judge who has rendered a judgment which has been accepted, has the power 179

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LAW OF CIVIL PROCEDURE. ART. 911. The civil chambers of audiencias shall take cognizance, in original and only instance, of actions for civil liability instituted against judges of first instance within their territory. Against the judgments rendered by the same in these actions the only remedy is an appeal for annulment of judgment. ART. 912. The third chamber of the supreme court shall take cognizance in original and only instance, and without further remedy, of such actions, when instituted against justices of an audiencia. ART. 913. In the case of the foregoing article, after the complaint has been filed, the chamber shall order that the audiencia be required to transmit thereto a certified copy of the reserved votes, or a statement that there are none, as the case may be. When such certificate has been received, it shall be attached to the record, and if it should appear therefrom that there was some reserved vote on the resolution which is the subject of the action for liability, it shall be referred to the plaintiff for a period of six days, in order that he may state whether he desires to prosecute his complaint, or whether he will amend the same in so far as it relates to the justice or justices who may have reserved their votes. AR. 914. When the complaint is instituted against the justices of a chamber of the supreme court, all the other justices of the same court shall take cognizance thereof in first and last instance, without further remedy, organized as a chamber of justice, with the presiding judge and secretary of the supreme court acting in like capacity. ART. 915. In every case, the judgment which absolves the defendant of civil liability, shall tax all the costs against the plaintiff, and, if the judgment be wholly or partly for the plaintiff, the costs shall be taxed against the defendants. In the last case a true copy of the judgment, duly authenticated, shall be transmitted to the colonial department, for the proper purposes. ART. 916. In no case can a judgment rendered in an action for civil liability alter the final judgment which has been rendered in the action or cause, in which the violation is alleged to have been committed. ART. 917. When an action of civil liability has been admitted, and as soon as final judgment has been rendered thereon, the record shall be transmitted to the public prosecutor, in order that, if there should be grounds for instituting an action for criminal liability, he may institute and propose what he may deem proper. to carry out the corresponding execution.-Decisions of Xovenber 19, 1861, and May 5, 1863. An appeal for annulment of judgment does not lie against orders relating to the execution of a judgment, unless said judgment is modified or altered, or new declarations of rights are made in said orders.-Decisions of May 14, 1867, and June 9, 1870. The declarations contained in a judgment can in no manner whatsoever affect persons who have not been parties to the action.-Decision of May 17, 1888. 'Law 8, Title XXII, Partida 3, relating to the adjudgment upon costs is not applicable to this case.-Decision of November 8, 1883. 180

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LAW OF CIVIL PROCEDURE. TITLE VIII. EXECUTION OF JUDGMENTS.' SECTION 1. -Judgments rendered by Spanish courts and judges. ART. 918. As soon as a judgment is final, the execution thereof shall be proceeded with, always at the instance of a party, and by the judge or court who may have taken cognizance of the action in first instance. ART. 919. In case of an appeal, as soon as the certificate of final judgment has been received by the lower court, it shall order that it be enforced, and the parties shall be notified thereof, in order that they may make such requests as they may consider proper in connection therewith. ART. 920. Should the judgment order, the payment of a net and determined sum, an attachment of the property of the judgment debtor shall always be issued, without the necessity of a prior personal requisition upon said debtor, in the form and in the order prescribed for executory actions. For such purpose, the interest on any specific sum shall be considered a net amount, when the rate thereof and term for which it is to be paid is fixed in the judgment. ART. 921. After the attachment has been made, the appraisement and sale of the property in question, and payment, in a proper case, shall be made entirely in accordance with the rules established for compulsory process after an executory action. ART. 922. If the judgment orders the doing or refraining from something, or the delivery of a thing or uncertain amount, the judgment shall be executed, employing the means necessary for the purpose and referred to in the following articles. In all these cases, if the writ of execution can not be immediately complied with, whatever be the cause which prevents it, an attachment of the property may be ordered at the instance of the creditor, in sufficient amount, in the opinion of the judge, to secure the amount of the judgment and the costs of the execution. The judgment debtor may avoid the attachment by furnishing security sufficient in the opinion of the judge. ART. 923. If the party adjudged to do something should fail to perform the same within the period fixed by the judge, it shall be done at his expense; and if it be a personal act which can not be performed in this manner, it shall be understood that he prefers to pay damages. If the amount of these damages, in the case of nonperformance, has been fixed in the judgment, the provisions of article 920 relating to the 'According to article 1971 of the Civil Code "The period for the prescription of actions to demand the fulfillment of obligations declared in a judgment, shall begin from the day the judgment became final." 181

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182 LAW OF CIVIL PROCEDURE. execution of a judgment in which there is an adjudication of a specific amount shall be observed. Otherwise the provisions of articles 927 et seq. shall be observed. ART. 924. If a person ordered to refrain from doing something should not obey the order, it shall be understood that he prefers to pay damages, which shall be paid to the person in whose favor judgment was rendered, in the manner prescribed in the foregoing article. ART. 925. When, by virtue of a judgment, some real estate is to be delivered to the successful litigant, he shall be placed in immediate possession thereof, observing for this purpose the proper proceedings which the litigant may request.' The same shall be done with regard to personal property, if it. can be found. Otherwise the proceedings prescribed in articles 927 et seq. for the payment of damages shall be observed.2 ART. 926. If a judgment orders the payment of a fixed amount and another amount not fixed, the payment of the fixed amount may be enforced without the necessity of delaying until the second amount is determined. ART. 927. When the judgment orders the payment of losses and damages without specifying the amount thereof, whether the basis therefor be established in the judgment or not, the judgment creditor shall present with the petition for the execution of the judgment a statement of such losses and damages and of their amount, calculated, in a proper case, according to the bases established.' ART. 928. A copy of said statement and of the instrument shall be delivered to the judgment debtor, in order that within the period of six days he may answer what he may deem proper. ART. 929. Should the debtor agree to the statement of the losses and damages and to the amount thereof, the judge shall approve the same without further remedy, and the amount agreed upon shall be collected in the manner prescribed in articles 920 et seq. If the debtor does not make any answer within the period mentioned in the foregoing article, he shall be understood as agreeing to the amount. 1 This is understood if it is in the possession of the person who is to deliver the same in accordance with the final judgment, and not when it is in the possession of a third person who, neither personally nor representing another, was adjudged to return the same.-Decision of December 29, 1883. 2The requisition for the delivery must be issued by the court and not in a notarial instrument.-Decision of October 22, 1888. 3 When the final judgment did not fix the bases for the payment of losses and damages, the adjudging chamber may regulate the same.-Decision of December 17, 1885. The question of indemnification of losses and damages by a municipality to a private individual by reason of an order to tear down his residence is to be decided by the ordinary courts.-Royal Decree of October 16, 1873, and Royal Order of 1ay 13, 1875.

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LAW OF CIVIL PROCEDURE. ART. 930. When the debtor impugns said statement or the amount thereof, the procedure prescribed in articles 936 et seq. shall be observed. ART. 931. Should the judgment order the payment of an uncertain sum, arising from rents, fruits, profits, or products of any kind, whether the basis for payment has been determined or not, the debtor shall be required, within the period fixed by the judge, according to the circumstances, to present the liquidation in a proper case, according to the basis established in the said judgment. ART. 932. Should the debtor not present the liquidation within the period fixed therefor, he shall be granted another period, not to exceed one-half of the original period, with the admonition that if he does not do so before the expiration of the latter period, he will be obliged to accept and pay that presented by the judgment creditor, except in so far as he may prove it to be erroneous. ART. 933. Should the second period pass without the judgment debtor having presented the liquidation, the creditor shall be notified thereof, in order that he may prepare and present the same, the record being delivered to him for this purpose, should he request it. In such case the issue shall be heard and decided according to the provisions of articles 928, 929, and 930. ART. 934. When the liquidation mentioned in article 931 is presented by the debtor, it shall be referred to the creditor for the period of six days, counted from that following the delivery of the copy of the liquidation and instrument. ART. 935. Should the creditor agree to said liquidation, the judge shall approve it without further remedy, and the payment of the amount agreed upon shall be enforced in the manner prescribed in articles 920 et seq. ART. 936. If the parties should not agree, evidence upon the issue shall be taken, should. the judge deem it necessary, when any of the parties should request it. The same procedure shall be observed in other cases of disagreement referred to in articles 930 and 933. A ruling denying the admission of evidence may be appealed from; but such appeal shall be allowed and determined at the same time as the appeal from the ruling closing the liquidation, if such appeal be interposed. ART. 937. The period for the taking of evidence cannot exceed 20 days, within which period the judge shall grant the number of days he may consider necessary. This period shall be common for the presentation and taking of evidence, observing in other respects the provisions for ordinary actions which may be applicable. ART. 938. The evidence shall be limited to the facts upon which the parties do not agree. 183

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LAW OF CIVIL PROCEDURE. The judge shall disallow, without hearing the opposite party, and without further remedy than that of a rehearing, the evidence which is not pertinent or which tends to contradict the basis fixed for the liquidation in the final judgment. ART. 939. After the period for the taking of evidence has expired, or all that submitted has been taken, the clerk shall make a report thereon, and the judge shall order the parties to appear at the earliest practicable date, within the next eight days. The same shall be done in case that no evidence is taken on the issue as soon as the instrument impugning the liquidation is presented. ART. 940. The parties shall appear on the day and hour fixed, and the clerk shall report upon the claims of both and of the result of the evidence that may have been taken; immediately thereafter the judge shall hear the parties or their counsel, should they appear, and shall endeavor to have them come to an agreement. The proper record shall be made of the result of the hearing, which shall be signed by all the parties present, and authenticated by the clerk. ART. 941. Within the three following days, the judge shall render, by means of a ruling, the decision which he may deem proper, fixing the amount to be paid in accordance with the final judgment. In the case of article 933, the judge shall approve the liquidation presented by the creditor, in so far as the debtor may not have proven it incorrect, and which is according to the bases designated in the final judgment. Said ruling may be appealed from for review only. When the appeal is allowed, a certified copy of the ruling, together with such statement as may be necessary for its execution, shall remain in court, and the original record shall be transmitted to the superior court, the parties being summoned to appear before the same within a period of fifteen days.' ART. 942. At the instance of the creditor, the execution of said ruling may be ordered. When the property has been sold, there shall be given to the creditor the amount agreed upon by the debtor, together with the costs which may be charged against him; and the difference between said amount and that fixed in the ruling shall be deposited in the proper public establishment until the appeal is decided, unless the creditor should furnish security to the satisfaction of the judge to answer therefor, in which case said difference shall also be delivered to him. 'The violation of this article, as it refers to procedure only, can not be made the basis for an appeal for annulment of judgment.-Decision of May 29, 1884. Questions which are brought up during the period of the execution of the judgment must be decided in the form of rulings, and not judginents.-Decision of June 5, 1884. 184

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LAW OF CIVIL PROCEDURE. ART. 943. The second instance shall be heard and determined according to the proceedings established in articles 886 et seq. for appeals in incidental issues. There shall be no remedy whatsoever against the decision of. the audiencia.' ART. 944. As soon as the ruling is final or the execution thereof is ordered (the net amount being fixed in all the cases aforementioned) it shall be enforced according to the procedure prescribed in articles 920 et seq. ART. 945. The provisions contained in articles 931 to 934 shall be applicable in case the judgment orders that the accounts of an administration be rendered and that the balance on hand be delivered; but in place of the period of six days fixed in article 934 it shall be twenty, and that of twenty days fixed in article 937 may be extended to forty days, when the judge considers it necessary, in view of the importance and complication of the subject.2 ART. 946. When the judgment orders the payment of a fixed amount of products in kind, if the debtor should not deliver the same in the period fixed, the money value of such products shall be determined and steps shall be taken for the recovery of the respective amount. The money value of such product shall be calculated at the average market price therefor at the place where the delivery thereof is to be made, or in its absence, at the nearest market on the day fixed in the judgment; and if no day is fixed therein then that of the day when the judgment is executed. The price shall be proven by means of a certificate of the syndics of the association of brokers (colegio cle corredores) if there be one, and otherwise, by that of the proper municipal authority. ART. 947. No appeal lies from the ruling of the court ordering that the money value of products be determined for the purposes of the execution, but any material error or errors, in the calculation must be corrected as soon as discovered. ART. 948. All proper appeals taken in proceedings for the execution of judgments shall be admitted for review only. Incidental issues which may be raised relating to questions not controverted in the action nor decided in the final judgment, are not included in this provision.3 1When the judgment rendered for the fulfillment of another judgment conforms to the provisions of the latter, it cannot be said that it is violated or in contravention thereof.-Decision of June 6, 1884. 'The admission of an appeal for annulment of judgment taken against a decision of an audiencia ordering the rendition of the accounts of an administration and the payment of the balance on hand is not proper.-Decision of April 20, 1888. s When a question is raised with regard to the interpretation and effects of. a judgment at the time of its execution, the decision rendered, which becomes final, is an integral part thereof.-Decision of February 5, 1886. 185

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186 LAW OF CIVIL PROCEDURE. ART. 949. The costs incurred in proceedings for the execution of final judgments shall be taxed against the judgment debtor. Those incurred in incidental issues raised during the execution shall be taxed against such party or parties as raise the said issues, on which point judges and courts must make an express declaration in deciding the incidental issue. Should they not do so, each party shall pay those incurred at his instance. SECTION 11.-Judgments rendered by foreign courts. ART. 950. Final judgments rendered in foreign countries shall have, in the territory of the islands of Cuba and Porto Rico, the force established in the respective treaties made by Spain. ART. 951. Should there be no special treaties with the nation in which the judgment has been rendered, it shall have the same force which is given in said nation to final judgments rendered in Spain. ART. 952. Should the final judgment have been rendered in a nation where, under its laws, judgment rendered by Spanish courts are not executed, it shall have no force in the islands of Cuba and Porto Rico. ART. 953. If the judgment should not be included in any of the cases mentioned in the three foregoing articles, the final judgments shall have force in said territory, if the following circumstances are attendant: 1. That the final judgment was rendered in consequence of the prosecution of a personal cause of action. 2. That it is not a judgment rendered by default. 3. That the obligation to enforce which the action was instituted is licit according to the laws of Spain. 4. That the writ of execution possess the requisites necessary in the nation in which it was rendered in order to be considered authentic, and the requisites which the Spanish laws require in order to be admissible in Spain. I ART. 954. The execution of judgments rendered in foreign countries must be requested of the Supreme Court. Cases are excepted in which, according to treaties, their cognizance pertains to other courts. ART. 955. After the translation of the judgment, iade according to law, and after the party against whom the judgment is rendered and the public prosecutor have been heard within a period of nine days, the court shall declare whether or not said judgment is to be executed. Against this ruling there shall be no further remedy. ART. 956. For the citation of the party, who must be heard according to the foregoing article, a certificate shall be issued and forwarded I to the audiencia within whose jurisdiction he may be residing. The period within which to appear shall be thirty days, if the party is a resident of the Peninsula, adjacent islands, or the Canaries. I

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LAW OF CIVIL PROCEDURE. Sixty days if he resides in the islands of Cuba or Porto Rico. Ninety days should he reside in the Philippine Islands. At the expiration of said period the court shall continue with the proceedings, even if the party cited fails to appear. AnT. 957. Should the execution be denied, the judgment shall be returned to the person who may have presented it. If the execution is ordered, a certified copy of the ruling shall be transmitted to the audiencia, in order that the same may give the proper order to the judge of first instance of the judicial district in which the person against whom the judgment was rendered is domiciled, or of the judicial district in which said judgment is to be executed, in order that its provisions may be fulfilled, employing the means for execution prescribed in the foregoing section. TITLE IX. INTESTATE PROCEEDINGS. SECTION 1.-Provisional '7ea8ures. ART. 958. Intestate proceedings shall be commenced by placing in some secure place, under lock and seal, the property, papers, books, and goods liable to be stolen or hidden; depositing with some person offering sufficient security under the liability of the judge, and after an inventory has been made thereof, such property as may require care and preservation, and by adopting such measures and employing such precautions as may be necessary to avoid abuses and the commission of frauds in regard to credits, landed property, rents, and harvested or growing products.1 ART. 959. In order to be able to institute intestate proceedings, it is necessary:2 1. That there is information of the recent death of the principal. 2. That the existence of a testamentary disposition is not known. 3. That the deceased left no surviving descendants, ascendants, or collateral relatives within the fourth degree, nor legitimate spouse who may have been living with the said decedent.8 ART. 960. If the relatives referred to in the foregoing article, or any of them, be absent without having a legal representative in the town, 'See subdivision 4 of article 270 of the Organic Law. 2See art. 912 of the Civil Code. 'A person must be considered to have died intestate when no will is presented, nor is the existence of one legally shown by the litigant who contests this legal presumption.-Decision of February 18, 1879. A judgment, in declaring that the preliminary steps taken in intestate proceedings of a married woman, separated from her husband by a judicial decree are valid, does not violate articles 959 et seq., together with article 1040 of this law.-Decision of December 10, 1884. 187

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188 LAW OF CIVIL PROCEDURE. the judge shall limit himself to adopting the measures indispensable for the burial of the deceased, if necessary, and for the security of the property, and to giving proper notice of the death of said deceased to said relatives who may be considered the heirs of said decedent. As soon as the relatives appear, personally or through legal representatives, the property and goods belonging to the deceased shall be given to them, after which the judicial intervention shall cease, unless some of the interested parties request otherwise. ART. 961. The judge shall also em officio take such measures as he may deem necessary for the security of the property, even if the deceased left any of the relatives above mentioned, when any of them are minors or incapacitated. Tutors or curators' shall be appointed by the judge of first instance for such persons, if they should have none.' ART. 962. The owner of the house wherein the death occurred, or any other person with whom the person who died intestate and without any of the relatives above mentioned, may have lived, must give notice of the death to the judicial authorities, being liable for all losses or misplacements which may occur of the property of the intestate by reason of his failure to give said notice. ART. 963. Any of the judges mentioned in rule 5 of article 63, having knowledge of the death of a person dying intestate and without leaving any of the relatives mentioned in subdivision 3 of article 959, in addition to taking the measures prescribed in article 960, .shall proceed ex officio to take the preliminary intestate proceedings prescribed in article 958. ART. 964. After the measures mentioned in the foregoing articles have been taken, the judge of first instance, or the municipal judge, in a proper case, shall take the steps he may consider best, in order to ascertain if the person whose succession is in question died with or without making a testamentary provision, receiving, in the absence of other means, and without prejudice to attaching to the record the death certificate as soon as possible, the testimony of relatives, friends, and neighbors of the deceased: 1. As to whether the deceased died intestate. 2. As to whether or not he has heirs of any of the classes mentioned. 'Tutor: The person in charge, primarily, of the education, rearing, and defense, and, secondarily, of the administration and government of the property of a person whose father died before he had attained fourteen years of age, if a male, or twelve years, if a female. Curator: The person appointed to take care of the property and business of a person who, on account of his minority, insanity, imbecility, absence, interdiction, or declared prodigality, is not in a condition to personally administer or manage the same.-Escriche, Diccionario de Legislaci6 y Jurisprudencia. 2 See article 293 of the Civil Code.

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LAW OF CIVIL PROCEDURE. ART. 965. If it appears that the person died intestate without any of the relatives mentioned in subdivision 3 of article 959 the judge shall: 1. Appoint a special administrator, who shall take charge of the burial of and obsequies over the deceased, and all other matters coming within his jurisdiction, according to law. 2. To take charge of the books, papers, and correspondence of the deceased. 3. To make an inventory of the property and deposit the same with some person furnishing sufficient security, who shall also take charge of the administration thereof. ART. 966. The depositary-administrator of the property shall furnish security in proportion to the property he is to administer, to the satisfaction and under the liability of the judge who has instituted the preliminary proceedings, and he may be removed at the will of said judge. ART. 967. If money, public securities, or jewelry are found, the same shall be deposited in the public establishment destined to this purpose, and the clerk shall enter in the record a true copy of the instrument showing where they are deposited, and preserve the original in his possession for delivery to the depositary-administrator when he takes charge of the property. Should there be no such public establishment at the place where the proceedings are pending, the judge shall provide for.the safety of said property temporarily, under his liability, in the manner he deems best, without prejudice to ordering the transfer of said property to said establishment as soon as possible. ART. 968. The judge shall open the correspondence in the presence of the administrator appointed and the clerk, and shall adopt such measures as may appear therefrom to be necessary for the security of the property. The correspondence relating to the estate shall be delivered to the administrator, and a copy or memorandum thereof, as may be deemed proper, in view of its importance, shall be attached to the record, and the other correspondence shall remain in the possession of the clerk for proper disposition in due time. ART. 969. After the municipal judge has taken these measures, he shall forward the proceedings to the judge of first instance, and place at his disposal all the property, books, and papers in question and the correspondence received.> ART. 970. The judge of first instance, upon receipt of the proceedings, shall correct any errors that may have been committed therein, issuing the proper orders for the purpose. ART. 971. As soon as the proceedings have reached this, stage, the deputy public prosecutor (Promotor fiscal) shall take part in said pro189

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190 LAW OF CIVIL PROCEDURE. ceedings on behalf of the parties who might have an interest in the estate. It shall be his duty to take such measures as he may consider necessary for the security and good administration of the property. ART. 972. Intestate proceedings may also be instituted in all cases at the instance of a legitimate party. Such parties shall be, for this purpose: 1. The nearest relatives of the deceased who believe themselves entitled to the estate. 2. The surviving spouse. 3. The creditors who present written and conclusive evidence of their claim, and who are not secured by mortgage or other guaranty. ART. 973. In the case of the foregoing article, the person who requests that intestate proceedings be instituted must prove that he is a legitimate party according to said article, afd that the principal died intestate, or that there is no evidence of any testamentary provision, stating also who are the nearest relatives and their domiciles, if known to him. Such proof shall be given by means of the proper documents, if it t be possible to secure them, and by the evidence of witnesses.' ART. 974. When the petition has been presented, the judge shall order that the person interested ratify the same, and furnish the information, with a citation of the deputy public prosecutor. If from the petition and the documents presented it should appear that the deceased died intestate, and that the petitioner is a legitimate party, the judge shall order that intestate proceedings be instituted, and that the measures prescribed in articles 963 and 965 be taken. These measures shall be confined to the prescriptions of numbers 2 4. and 3 of article 965, when the institution of proceedings has been requested more than thirty days after the death of the intestate, or from the time when notice of his death was received. ART. 975. In such cases, should there be a surviving spouse, who was cohabiting with the deceased at the time of death, the same shall be appointeddepositary-administrator, and as soon as an inventory of the property has been made, it shall be delivered to said depositaryadministrator as such, removing the seals and locks as the delivery is made. No bond shall be required when, in the judgment of the judge, the said depositary-administrator has sufficient property of his or her own to guarantee that which does not belong to him or her. Otherwise he or she must furnish security in such sum as the judge may fix. If there be no surviving spouse with legal capacity to administer the property, this office shall be given to another person, and the provisions of articles 966 and 967 shall be observed. 1 See article 11 of the Royal Decree of February 19, 1891, relating to the registration of last wills.

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LAW OF CIVIL PROCEDURE. 19 SECTION 11.-Designation of heirs ab intestato. ART. 976. After the measures indispensable for the security of the property prescribed in the foregoing section have been taken, and without prejudice to including in the same proceedings the making of the inventory, the designation of heirs ab intestato shall be proceeded with in a separate record. ART. 977. This designation may also be made at the instance of the interested parties, without the necessity of previously taking the steps mentioned, in cases in which they are not necessary and in which the institution of intestate proceedings is not requested. ART. 978. Heirs ab intestato who are descendants of the deceased, may obtain a declaration of their rights by proving with the proper documents or with the evidence obtainable, the death of the person whose estate is in question, their relationship to the same,' and with the evidence of witnesses that said person died intestate, and that they, or the persons'whom they designate, are his only heirs. The services of a solicitor or attorney are not necessary in order to a present this claim. ART. 979. The deputy public prosecutor shall be cited to appear at said proceeding, to whom the record shall afterwards be referred for the period of six days for his report thereon. Should he find the proof insufficient, a hearing shall be granted to the interested parties in order that they may cure the defect. When the deputy public prosecutor requests it, or the judge.considers it necessary, the documents presented shall be compared with the originals. ART. 980. When the foregoing steps have been taken, the judge shall, without further proceedings, make a ruling designating the heirs ab intestato should he deem it proper, or he may refuse to make such declaration, reserving the rights of the claimants to institute an ordinary action. This ruling may be appealed from both for review and a stay of proceedings. ART. 981. The procedure prescribed in.the three foregoing articles shall also be employed in the designation of heirs ab intestato when anly of the ascendants of the deceased request it. In such case, if from the certificate of birth of said deceased it should appear that he died before reaching the legal age for making a will, the testimony of witnesses prescribed in article 978 shall not be necessary. ART. 982. The same procedure shall also be employed in making a designation of heirs ab intestato when requested by collateral relatives within the fourth degree. 1 See art. 327 of the Civil Code. 191

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LAW OF CIVIL PROCEDURE. ART. 983. In the case of the foregoing article, if, in the opinion of the deputy public prosecutor or of the judge, there are reasonable grounds to believe that there may be other relatives of the same or nearer degree, and provided that the value of the real property or property rights belonging to the estate exceeds 5,000 pesetas, the judge shall order that public notices be posted at the public places of the locality where the proceedings are pending, and in the towns where the deceased was born and died, announcing his death and intestacy, the names and degree of relationship of those who claim the inheritance, and calling upon all persons who believe themselves vested with an equal or better right thereto, to appear in court and assert their claim within thirty days. The judge may extend this period for the time he may consider necessary, when by reason of the birthplace of the deceased or for other circumstances it is presumed that he may have relatives beyond the territory of the islands of Cuba and Porto Rico. The notices shall be inserted in the official papers of the three towns above mentioned, should there be any. 2 They shall also be inserted in the Gaceta of the general government and in that of Madrid, if, in the opinion of the judge, the circumstances of the case require it. ART. 984. If after the period mentioned in the notices, counting from -the date of their publication in the last of the towns or periodicals in which it was inserted, has expired, no one should appear, the judge shall order the record brought before him, and he shall render the decision prescribed in article 980. Should other relatives have appeared the provisions of articles 986 et seq. shall be observed. ART. 985. If there be no descendants, ascendants, nor collateral relatives within the fourth degree, whether or not any relative has appeared to claim the estate, the judge shall, after the provisional measures, order that notices be posted and published in the places and for the time mentioned in article 983, announcing the death and intestacy of the person whose succession is in question, and calling upon all persons to appear who believe themselves entitled to the estate. ART. 986. As soon as the periods fixed for said notices have passed, others shall be posted and published in the same manner and for the same period, making a second citation for a period of twenty days with the proper admonitions. In these second notices there shall be stated, in a proper case, the A names of the relatives who niay have appeared and their degree of relationship to the deceased. ART. 987. The parties who appear in consequence of said calls shall state in writing their degree of relationship to the intestate, and shall prove the same with the proper documents, accompanied by a draft of their genealogical tree. 192

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LAW OF CIVIL PROCEDURE. These statements and documents shall be attached to the proceedings for the designation of heirs in the order in which they are presented. ART. 988. When there is but one claimant to the estate, and also if, there being several, they, all of them, allege the same rights based on the same title, the record shall be delivered to the deputy public prosecutor for his report thereon. Should the latter decide that they be declared heirs, the judge shall order the record brought before him, and, without further piroceedings, shall make the designation, should he deem it proper. This ruling may be appealed from both for review and for a stay of proceedings. ART. 989. Should the deputy public prosecutor report unfavorably, his report and the record shall be referred for a period of six days to the persons interested, and the question shall be heard and determined according to the procedure prescribed for incidental issues. ART. 990. If there be two or more claimants to the estate and they do not agree as to their claims, as soon as the period mentioned in the second notices has expired the record shall be delivered to the said claimants for a period of six days each, in order that they may allege and request what they may consider proper as to the rights of each claimant. Those who make common cause should embody their claims in the same instrument and be represented by the same counsel. The record shall be delivered to the parties in the order in which they have entered appearance. ART. 991. After all the persons in interest have complied with the provisions of the foreging article, the deputy public prosecutor shall be heard as to the rights of each claimant and recommend what he may consider proper. AnT. 992. When any of the parties shall request the taking of evidence, the provisions prescribed for incidental issues in articles 751, 752, and 753 shall be observed. Evidence may also be taken. 1. When some document having been expressly impugned, it becomes necessary to compare it with its original. 2. Whenever it is necessary for any of the parties in interest to complete the proof of his rights. ART. 993. After the evidence taken has been attached to the record upon the expiration of the period for the taking thereof, and if no evidence has been submitted, as soon as the deputy public prosecutor gives his opinion, the judge shall call a meeting of the parties interested, within the eight days following, fixing the day and hour it is to be held. At this meeting, which must be attended by the deputy public prosecutor, and also, if they desire, by the attorneys of the parties, the said 5190-13 193

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LAW OF CIVIL PROCEDURE. parties shall discuss their claims to the estate. If they agree upon their right to and as to their respective share in the estate, this fact shall be entered in the minutes of the meeting, together with a statement as to whether or not the deputy public prosecutor is satisfied with said agreement. When such agreement is not arrived at, a statement of this fact shall also be entered in the minutes, which shall be signed by all the parties present, together with the judge and the clerk. ART. 994. Whatever be the result of the meeting, the judge shall immediately thereafter order the record brought before him, citing the parties for judgment, which he shall render without further proceedings, within the six days following, deciding therein what he may consider just as to the rights of the claimants and their respective participation in the estate. With regard to the division of the estate, the judge shall confine himself to the agreement made by the parties in interest, should they be competent to enter upon a contract. This judgment may be appealed from, both for review and for a stay of proceedings. ART. 995. As soon as the judicial decision designating the heirs becomes final, the public prosecutor shall cease to take part in the pro ceedings, and all questions pending, or which may be raised thereafter, shall be heard and determined with the heir or heirs, who have been instituted such by said decision. ART. 996. Parties claiming any right to the estate who may not have appeared in the proceedings during the period mentioned in the notices, may do so before the calling of the meeting, accompanying the documents which establish their claim, but in no case shall there be any retrogression in the proceedings. They shall not be admitted after the call for the meeting has been issued, but they may protect their rights through the ordinary channels against those who have been instituted heirs. ART. 997. Should no claimant to the estate appear, or if none of those who did appear should have been recognized as being entitled thereto, a third call by edicts shall be made for a period of two months in the manner prescribed for the prior notices, and with the admonition that the succession will be declared vacant if no claimant therefor appears. ART. 998. If the period mentioned in the third citation should expire without any person having appeared, or if the claimants who may have appeared should be declared as having no right to inherit, the succession shall be declared vacant, and, at the instance of the public prosecutor, the estate shall be disposed of in the manner prescribed by law.1 ART. 999. In the case of the foregoing article the property, together 'See articles 955 to 958 of the Civil Code with regard to the succession of the State in the absence of persons having a right to succeed. 194

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LAW OF CIVIL PROCEDURE. with the books and papers appertaining thereto, shall be turned over to the State. With regard to the other papers, the judge, after consultation with the deputy public prosecutor, shall order that those which may be of some interest be preserved and the balance destroyed. Those to be preserved shall be filed with the record of the intestate proceedings under closed and sealed cover, on the outside of which a memorandum of its contents shall be made which shall be rubricated by the judge and deputy public prosecutor and signed by the clerk. SECTION 111.-IntestateP oceedinys. ART. 1000. After the declaration of heirs ab intestato has been made, by a final judgment or ruling, the proceedings shall be continued according to the procedure prescribed for testamentary proceedings.1 ART. 1001. The judge shall order that there be delivered to the heirs instituted all the property, books, and papers of the intestate, and that the administrator render an account of his administration to them, the judicial intervention ceasing. This intervention may continue only in the following cases: 1. When it is requested by any of the heirs designated or by the surviving spouse. 2. When legally necessary by reason of the attendance of circumstances which, according to article 1040, require testamentary proceedings. ART. 1002. For the purposes of the case mentioned in number 4 of article 161, the following are declared to be subject to consolidation with these and with testamentary proceedings:2 1. The executory actions instituted against the deceased before his death, with the exception prescribed in article 166. 2. Ordinary personal actions, pending in first instance against the deceased. 3. Real actions pending against the same in first instance when not pending before the court of the place in which the real property is situated or where the personal property subject of the action is located. 4. All ordinary and executory actions instituted against the heirs of the deceased or against his estate after the provisional measures in the intestate proceedings have been taken, with the exception of article 166, above referred to. 'After the declaration of heirs ab intestato has been made, the proceedings must conform to the procedure established for testamentary proceedings, and a judgment which denies a petition to this effect, under the erroneous impression that the institution of testamentary proceedings is requested, violates the law of civil procedure and law 16, Title XXII, partida 3, relating to the congruence of the complaint and the decision.-Decision of December 6, 1881. 'See note to Art. 164. 195

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LAW OF CIVIL PROCEDURE. AR. 1003. After the institution of the intestate proceedings has been decreed, the consolidation of the actions mentioned in the foregoing article with said intestate proceedings may be requested: 1. By the deputy public prosecutor, while he is a party to the proceedings. 2. By the administrator of the property, while he is acting as the representative of the intestate. 3. By the heirs or any one of them as soon as they have been acknowledged and declared as such by final judgment. 4. By any other legitimate party to the intestate proceedings. In order to carry into effect such consolidations the provisions of articles 1184 and 1185 shall be observed.2 SECTION IV.-Administration of intestate successions. ART. 1004. A separate record shall be made of all intestate proceedings, which shall be called the adbiistration record, in which shall. be entered all matters relating thereto. There shall also be made, in a proper case, as many separate branches of said record as may be necessary in order to avoid confusion.8 ART. 1005. Theadministration record, together with the record of accounts and other incidental matters, shall be kept in the clerk's office for examination during office hours by those who may have appeared and alleged some right to the succession, providing request therefor is made to the clerk, who can charge no fee for this examination. If, in view thereof, they should make any claim the judge shall hear the same, if it is well founded. ART. 1006. After the administrator has been appointed, and has furnished the security prescribed in section 1 of this title, he shall be placed in possession of his office, being proclaimed administrator to the persons he may designate from among those with whom he is to deal in the discharge of his duties. In order that he may accredit his administration, he shall be given a certificate vised by the judge, showing his appointment and that he is in possession of the office. 'See arts. 1026 of the Civil Code and 1007 of this law. 2The violation of this article can not serve as a basis for an appeal for annulment of judgment.-Decision of January 3, 1872. By the former as well as by the present law of procedure, the department of public prosecution is a party to intestate proceedings on behalf of those who may be entitled to the succession.-Decision of July 1, 1886. sUntil a declaration of heirs ab intestato is made by a final ruling or judgment, the administrator of the intestate succession shall represent the same in all actions which may be instituted or have already been commenced, and the department of public ; prosecution or other interested parties shall not have a right to do so.-Decision of July 1, 1885. 1006

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LAW OF CIVIL PROCEDURE. ART. 1007. The administrator shall represent the intestate in all actions that may be instituted or that may have been instituted when intestate proceedings were commenced, as well as in all issues which relate to the property of the estate, except that which relates to the declaration of heirship, in which he shall have no intervention. As said representative, he shall also institute actions which the deceased might have instituted, even if such proceedings are to be instituted in another superior or inferior court, or through ahninistrative channels; he shall further act as such representative in all other acts in which the intervention of the intestate might be necessary, until the declaration of heirship is made by final judgment.' ART. 1008. As soon as the value of the estate is known, the judge shall order that the bond of the administrator which was given during the preliminary proceedings be increased to such amount as the judge shall determine, should he consider the first insufficient. Should the administrator not furnish the additional bond within the period fixed by the judge, he shall be substituted by another administrator, who shall furnish the proper bond. ART. 1009. The administrator shall render an account, properly vouched, at such times as the judge may designate, such periods being governed by the importance and conditions of the estate, but in no case can the intervals exceed one year. On presenting his account, the administrator shall turn over the balance on hand or present the original receipt showing that it has been deposited in the establishment designated therefor. In the first case the judge shall order the deposit immediately, and in the second case that a statement giving the date and the amount of the deposit be attached to the record.2 ART. 1010. The accounts of the administrator and the vouchers therefor shall constitute a separate branch of the administration record. For the purpose of examining the accounts and inspecting the administration, or taking any measures relating to the correction or approval of said accounts, they shall be kept in the clerk's office for examination by any party who may at any time request permission to do so.2 'This article is applicable to intestate proceedings only.-Decision of March 14, 1878. 2 When the administrators of an estate make a distribution of funds among some of the persons interested therein, taking a simple receipt therefor, but without any other formality, it can not be considered that this partition has the character of a rendition of accounts, because it is simply a private distribution which may appear in the accounts as payments to the persons interested.-Decision of April 2, 1885. Decisions relating to periodical accounts are not definite, because said accounts must also be presented at the end of the administration, according to article 1012. -Decision of Decem r 4, 1888. 'The costs incurred in making the accounts are to be defrayed by the administrator, as he receives an allowance therefor.-Decision of Jme 14, 1884. 197

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LAW OF CIVIL PROCEDURE. ART. 1011. When the administrator ceases in the discharge of his duties he shall render a final account supplementary to those already rendered. ART. 1012. All the accounts of the administrator, including the final one, when he ceases to discharge his duties, shall be subject to examination by all parties for a period common for all, to be fixed by the judge according to the amount involved in said accounts. ART. 1013. After said period has elapsed without ahy objection having been made to the accounts, or after any objections made thereto have been overruled, the judge shall render a decision approving said accounts and declaring the administrator free from liability. In the same decision the judge shall cancel the mortgage security which the administrator may have executed, or shall order the return of the bond he may have furnished. ART. 1014. If the accounts should be impugned at the proper time, said objections shall be heard and determined before the administrator, according to the procedure prescribed for incidental issues. From the ruling terminating this issue an appeal may be taken both for review and a stay of proceedings. From that rendered by the audiencia an appeal for annulment of judgment lies. ART. 1015. The administrator is obliged, under his liability, to preserve the property of the estate without deterioration and to see that it produces the proper rents, products, or income. For this purpose he must make such ordinary repairs to the buildings as may be necessary for their preservation, and have the unrented farms worked and fertilized as their proper cultivation requires. ART. 1016. When the landed property requires extraordinary repairs or cultivation, the administrator shall advise the court, which, after a hearing of the heirs instituted, or of their representatives, and in their absence, of the deputy public prosecutor in writing, after an examination made by experts, and after an estimate of the costs thereof has been prepared, may order that the work be done under private contract or be let at public auction, as he may consider most advisable in view of the circumstances of the case. If all or any of the heirs instituted should fail to attend the hearing, the judge shall not on that account delay ordering what may be proper. ART. 1017. When the amount of the estimate exceeds 5,000 pesetas the work shall be let to the lowest bidder, unless the heirs, or the deputy public prosecutor, in a proper case, should give their consent to having it done by private contract. ART. 1018. For the said expenses, legal costs, the payment of taxes, and the other ordinary expenses of the estate, the judge may allow the administrator to retain the sum he may consider necessary, and 1.98

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LAW OF OIVIL PROCEDURE. 199 shall order said sum to be withdrawn from deposit if they can not be met by the ordinary income of the estate. ART. 1019. The administrator may sell at the proper season and time the crops he gathers as the result of his administration and those received as rents of the estate, doing so through a broker, if there be one, and depositing without delay the nbt proceeds thereof, as well as all cash received by way of rents of the estate, in the public establishment in which the other funds of the estate are deposited, subject to the orders of the court. Certified copies of the deposit receipts shall be entered in the record and the original receipts shall be returned to the administrator, to be retained in his possession. ART. 1020. The administrator may also lease, without public bidding, the dwelling houses or the rooms into which they are divided, and small farms, at the prices and under the terms current in the locality. He may also authorize the implied extension of the leases pending at the death of the owner, or renew those that have expired, under the conditions stipulated by said owner, and at the same or a better price, whatever be the importance or class of the property. ART. 1021. The following properties must, at the request of the administrator of the estate, be leased at a judicial public auction: 1. Manufacturing, industrial, or any other establishments. 2. Rural properties the rental value of which exceeds 5,000 pesetas. 3. Properties which must be recorded in the registry of property, according to the provisions of the mortgage law.' ART. 1022. The average price of the rental of the property during the last five years shall serve as a basis for these auctions; otherwise the price fixed by experts selected by the judge. No bid lower than the designated minimum bid shall be accepted. Ana. 1023. The administrator shall prepare a statement of the conditions for the auction and shall submit the same to the court for its approval. This document shall be kept for the examination of the bidders in the office of the clerk of the court taking cognizance of the proceedings, and, in a proper case, in that of the court within whose district the property is situate, this information being given in the edicts, as well as the designated minimum bid for the sale, without prejudice to beginning the auction with the reading of said conditions. ART. 1024. Notice of the auction shall be given by edicts posted in the public places of the locality where proceedings are pending and in that where the property is situate, and shall be inserted in the official 1 See art. 2, subdivision 5, and art. 1280 of the Civil Code.

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LAW OF CIVIL PROCEDURE. papers of both places, should there be any, or, in their absence, in the Gaceta of the general government. Said notices may also be published in the Gaceta of Madrid when the judge considers it proper. An. 1025. The public auction shall be held thirty days after the date of the publication of the edicts. The judge may, however, reduce this period when circumstances require it, without, however, making it less than fifteen days, and shall name the day, the hour, and the place in which the auction is to be held, which shall also be stated in the edicts. If the notices are also to be inserted in the Gaceta of Madrid, the judge shall fix the date of the auction sixty days after the date of such publication. ART. 1026. If no acceptable bid is offered, a second auction shall be ordered with the same formalities as the first, lowering the minimum price to be accepted from ten to fifteen per cent, which shall be fixed by the judge as he may deem proper. ART. 1027. If again no acceptable bid is offered, the judge, after hearing the heirs instituted, in the manner prescribed in article 1016, and, in their absence, the deputy public prosecutor, may authorize the administrator to make a private lease, or order what he may deem best. ART. 1028. As a general rule all of the properties of the estate shall be leased. There may be excepted that which the deceased worked or cultivated on his own account, and any other property which, owing to special circumstances or in order to make it more profitable, should in the opinion of the administrator, concurred in by the heirs, if declared, be excepted from said general rule. ART. 1029. During the pendency of the intestate proceedings none of the property inventoried can be alienated. The following are excepted from this rule: 1. Property subject to deterioration. 2. That whose preservation is difficult and expensive. 3. Such crops for whose sale there may be circumstances which are considered advantageous. 4. The other property whose alienation may be necessary for the payment of debts or to meet other obligations of the estate. ART. 1030. The judge may, upon the recommendation of the administrator and after hearing the heirs instituted in the manner prescribed in article 1016, and, in their absence, the deputy public prosecutor, order the sale of any of the aforementioned properties at public auction after an appraisement by experts. The sale of public securities shall be made at their market value through an exchange agent or broker appointed by the judge. ART. 1031. The auction sales referred to in the foregoing article shall be made with the same formalities and within the same periods as 200

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LAW OF CIVIL PROCEDURE. those hereinbefore prescribed for leases, without any exception but that of reducing to ten days the period for the sale of crops, personal property, and live stock. ART. 1032. The administrator shall be entitled to the following compensation only: 1. Two per cent of the net proceeds from the sale of crops, personal property, or live stock included in the inventory. Proceeds from the sales made by him referred to in article 1019, shall be considered as included in number 4 of this article. 2. One per cent of the net proceeds from the sale of real estate and from collections made on securities of all kinds. 3. One-half per cent of the net proceeds from the sale of public securities. 4. With regard to other revenue received during the administration from sources other than those mentioned in the foregoing numbers, the judge shall allow from four to ten per cent, taking into consideration the income of the estate and the labor connected with the administration. The judge may also authorize, when he considers it proper, that the administrator be paid his necessary traveling expenses incurred in the discharge of his duties.' ART. 1033. The subaltern managers which the deceased may have had beyond the town where the proceedings are being held, for the care of his property, shall be retained at the same compensation and with the same powers which were granted them by the said deceased. ART. 1034. The said managers shall render their accounts and forward what they may receive to the judicial administrator, considering themselves as employees of the latter, but he can not remove them except for good cause and with the authority of the judge. The judicial administrator may, with the same authority and under his liability, fill the vacancies which may occur. TITLE X. TESTAMENTARY PROCEEDINGS. SECTION Igeneral OliAlon.e ART.1035. Testamentary proceedings may be voluntary or necessary. ART. 1036. They are voluntary when instituted by a logitimateparty.a 'The administrator is not entitled to any other recompense but that mentioned in the different clauses of this article.-Decision of Akirch 21, 1878. The costs of collection constitute part of the administration, and if a decision allows a fixed amount for the expenses of the administration, the cost of collection can not be included therein.-Decision of IAfrch. 2,9, 1884. .' Until the action becomes prescribed, the institution of voluntary testamentary proceedings is proper for the lioidation of the hereditary portions.-Decision of May 28, 1888. 201

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LAW OF CIVIL PROCEDURE. ART. 1037. A legitimate party to institute testamentary proceedings shall be: 1. Any of the testamentary heirs. 2. The surviving spouse. 3. Any of the legatees of an aliquot part of the estate.' 4. Any creditor, provided he presents a written instrument conclusively proving his claim.2 ART. 1038. The voluntary heirs and the legatees of an aliquot part cannot institute voluntary testamentary proceedings when the testator has expressly prohibited it. ART. 1039. Nor can such proceedings be instituted by creditors: 1. When their claims are secured by mortgage or other sufficient guaranty. 2. When otherwise the heirs give them sufficient security to secure their claims independently of the property of the deceased. ART. 1040. Testamentary proceedings shall be called necessary in the cases wherein the judge must institute them em ofcio. Such cases are: 1. When all or any of the heirs are absent and have no legal representative in the place where proceedings are to be instituted. 2. When the heirs, or any of them, are minors or incapacitated, unless they are represented by their parents.8 ART. 1041. In such cases any of the judges mentioned in rule 5 of article 63 may institute proceedings, taking the steps indicated in said rule and in article 958. 1 The right of the legatees of an aliquot part of the estate cannot be extended to anyone else, and it does not therefore include the legatees of specific and determined things, and therefore said legatees do not have the legal capacity to institute testaf mentary proceedings.-Decision of June 22, 1880. 2 Although according to the Law of Civil Procedure heirs may, among others, institute testamentary proceedings, a simple statement of being an heir is not sufficient if impugned, because from such time there arises a question which must be previously decided, and which must be heard in an ordinary action, whether the right alleged is or is not true.-.Decision of September 29, 1877. Executors, no matter how full their powers may be, are not considered legitimate parties for the institution of voluntary testamentary proceedings.-Decision of June 23, 1883. Heirs are considered legitimate parties for the institution of testamentary proceedings; but not the persons who believe themselves entitled to be heirs.-Decision of January 28, 1889. 3When the heir instituted dies before the testator, necessary testamentary proceedings may be instituted ex officio, because the unknown heir must be considered as absent.-Decision of June 23, 1883. When the testator authorizes his executors to discharge the duties of accountants and liquidators of the estate, notwithstanding the fact that he leaves children under age, it is understood that he wishes to prevent the institution of necessary testamentary proceedings.-Decision of June 80, 1862. A judgment deciding whether testamentary proceedings are necessary or voluntary is final for the purposes of annulment of judgment. -Decision of April 15, 1862. 202

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LAW OF CIVIL PROCEDURE. ART. 1042. In the first case of article 1040, as soon as the relatives appear in person or by means of a legal representative, there shall be delivered to them the property and effects of the deceased, and the judicial intervention shall cease unless requested by any of the legitimate parties for the purpose of instituting voluntary probate proceedings. ART. 1043. Even though the heirs are minors or incapacitated, necessary testamentary proceedings can not be instituted, if such proceedings have been expressly prohibited by the testator. If the provisional measures referred to in article 1041 have 'been commenced, they shall be suspended as soon as said prohibition is proven by a copy of the will. ART. 1044. When the testator has forbidden such judicial intervention in his will, in order that such prohibition may produce the effects mentioned in the foregoing article and in article 1038, it shall be neces sary that he shall have appointed one or more persons, duly empowered, so that either in the character of executors, accountants, or any other capacity they may execute extrajudicially all the operations in the administration of the estate. ART. 1045. Should the testator have established rules distinct from those prescribed in this law for the inventory, appraisement, liquidation, and partition of his property, the voluntary testamentary heirs and the legatees shall respect them and submit thereto. The same rule shall apply to forced heirs provided that their legitimes' are not injured or damaged.' ART. 1046. The interested parties may, at any stage of voluntary testamentary proceedings, terminate the same and make such agreements as they may consider proper. For this purpose, in addition to the heirs and legatees, the creditors who may have instituted the proceedings and the surviving spouse shall be considered interested parties. Should they request it by common consent, the judge shall order the proceedings closed and the property placed at the disposal of the heirs. 'Articles 1045 and 1044 of the law of procedure do not affect the absolute right of a forced heir to institute universal testamentary proceedings.-Deeision of Audy 5,1887. The second paragraph of article 1057 of the Civil Code not only confirms the provisions of this article, but extends the same in order to prevent judicial intervention and even approval, if the testator has prohibited it, and notwithstanding the provisions of article 1048. 2 L6gitime: That portion of a parent's estate of which he cannot disinherit his children without a legal cause. The provisions of article 1045 apply only to the case that a testator has established rules distinct from those prescribed in the law for the inventory, appraisement, and division of his property, affecting the form or manner of performing these acts, and not the absolute right of forced heirs to institute the said universal proceedings.-Decision of gdy 5, 1887. 203

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LAW OF CIVIL PROCEDURE. ART. 1047. In the necessary proceedings, after the judicial inventory and deposit of the property have been made, as prescribed in article 1094, the persons interested may also desist from further proceedings, in order to attend extra-judicially all other steps in the settlement of the estate. In such case the judge shall not place the property at the disposal of the heirs until after the partition thereof has been approved. ART. 1048. The liquidations and partitions of the inheritance made extra-judicially, even though made by accountants appointed by the testator, must be presented for judicial approval, providing that a minor, an incapacitated person, or an absentee whose residence is unknown, has -any interest therein as an heir or legatee of an aliquot part thereof. ART. 1049. In order to obtain said approval, the procedure prescribed in articles 1076 et seq. shall be observed. Partitions made by the testators themselves are not included in the provisions of this and the foregoing article, and do not require judicial approval. ART. 1050. To minors, incapacitated persons, or absentees are reserved the rights granted them by law in addition to those vested in them by the provisions of this title. ART. 1051. Testamentary proceedings do not debar heirs from exercising at the proper time and in the proper manner the right to deliberate or the benefit of inventory. When instituting proceedings, they may request that the legal term for deliberating be granted them, or state that they accept the inheritance under the benefit of an inventory.2 In either case, the inventory having been regularly made, the judge shall order that it be submitted to them so that they may decide what they may consider most conducive to their interests. ART. 1052. Estates of deceased persons may be declared insolvent or in bankruptcy, in the same manner as individuals, in which case they shall be subject to the procedure prescribed for the said proceedings. SECTION II.Th ntary test aomentary proceeding. ART. 1053. He who institutes voluntary testamentary proceedings must present the death certificate of the person whose succession is in question, and if this be impossible, another document or proof of death, and the will of the deceased. ART. 1054. If such person be a legitimate party, and the requisites mentioned in the foregoing article are complied with, the judge shall order that the petition made in his name be ratified. See arts. 1056 and 1057 of the Civil Code. 2 See art. 1019 of the Civil Code. 204

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LAW OF CIVIL PROCEDURE. This ratification having been made, the judge shall consider proceedings instituted, and shall order the heirs, the legatees of aliquot parts, and the surviving spouse, if there be one, to be formally cited to appear, and also, in a proper case, the creditors who may have instituted the proceedings. ART. 1055. If there be any of said heirs or legatees who, by reason of being minors or incapacitated, have a tutor or curator, the citation shall be served upon the latter. Should they have no tutor or curator, one shall be appointed, or they shall be required to appoint one according to law, unless they are represented by their parents. ART. 1056. When the tutor, curator, father, or mother should have an interest in the estate incompatible with that of the minor or incapacitated person whom they represent, a special curator ad litem shall be appointed according to, law, whose intervention shall be limited to the acts wherein such incompatibility exists.1 ART. 1057. The heirs and other absent interested parties who may h have a known place of residence shall be cited to appear personally. Those who have no known residence shall be cited by means of edicts posted in the public places and inserted in the official newspapers of the locality where the proceedings are pending, if there be any, and in the Boletin of the province, or in its absence, in the Gaceta of the general government. Should the judge consider it necessary, in view of the circumstances of the case, the edict shall be published in the Gaceta de Xadrid or in the last place of residence of the absentee. ART. 1058. The deputy public prosecutor shall also be cited to appear in order to represent the persons interested in the estate who are minors or incapacitated and have no legal representative, the absentees whose place of residence is unknown, and those who, requiring a citation in person by reason of their having a known residence, can not be found a at the place where the proceedings are being held. ART. 1059. The representation of the deputy public prosecutor shall ceaseWith regard to minors and incapacitated persons, as soon as a tutor or curator has been appointed for them. With regard to absentees whose whereabouts is unknown, as soon as they appear in the proceedings or can be cited personally, although they should afterwards again absent themselves. With regard to absentees cited personally, as soon as they appear, or twenty days from the time of the citation if they reside in the territory of the respective island, two months if they reside in Porto Rico and must claim their rights in Cuba, or vice versa, and six months if residing in any other place. See art. 165 of the Civil Code. 205

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LAW OF CIVIL PROCEDURE. In the last case the proceedings shall be continued in default without further citation of parties properly cited and who have not appeared. ART. 1060. If the person instituting the action should request at the proper time a judicial supervision of the estate, it shall be so ordered, and the steps prescribed in article 958 shall be taken in such manner as to cause the least possible injury.' ART. 1061. Said intervention can only be ordered for the judicial preparation of the inventories, when requested after the thirty days following the death of the testator, or from the time when notice of the death has been received. ART. 1062. The court clerk shall be commissioned to make the judicial inventory, without prejudice to the right of the judge to be present at the making thereof, in whole or in part, when one of the interested parties requests it and he considers it necessary. ART. 1063. The court clerk shall commence to make the judicial inventory within eight days after the making thereof was ordered, fixing a day and hour therefor which shall be communicated to the persons interested when citing them to appear for said purpose. ART. 1064. The following persons shall be cited to appear at the making of the inventory: 1. The heirs or their legal representatives who may be at the place where the proceedings are pending, or who may have entered their appearance of record, and the deputy public prosecutor (promotor fiscal) for the absentees, if there be any. 2. The surviving spouse, or his or her legal representative. 3. The legatees of an aliquot part. 4. The creditors who may have instituted the proceedings or who may have been admitted therein as legitimate parties. ART. 1065. All the persons mentioned in the foregoing article having been cited to appear, at the specified day and hour the court clerk shall proceed, with those who may be present, to make the inventory, 1 As these proceedings are not the legal means to question and disturb rights of which third persons are possessed and in quiet.enjoyment, but only a series of judicial acts prescribed by law in order that, at the instance of those having a right to institute the said proceedings, the inheritance be distributed among them when they have not been able to come to an agreement as to its extrajudicial partition, the intervention authorized by th.e law of civil procedure must be limited to the property and rights which have not left the possession of the testator and which are not possessed under a more or less questionable title by third persons, without prejudice to the right of the heirs to institute the proper actions for the purpose of recovering for the inheritance such property as rightfully belongs to the same, as neither this law nor jurisprudence denies to third persons who are prejudiced, when such principles are violated, the right to appear in such action, not as legitimate parties in the question of the partition of the inheritance, but in view of the right which they have, not to be dispossessed or disturbed in their possession until they have been heard and defeated in court.-Decision of December 26, 1876. 206

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LAW OF CIVIL PROCEDURE. 207 which shall contain a description of the property of the estate according to the following order: 1. Cash. 2. Public securities. 3. Jewelry. 4. Live stock. 5. Products. 6. Personal property. 7. Real estate. 8. Rights and actions. All shall be stated in the list, which must be made with proper clearness and precision, and if the inventory can not be concluded on the day appointed it shall be continued on the following days.' AR. 1066. There shall also be made with the same care a special inventory of the written instruments, documents, and important papers that may be found. ART. 1067. After the measures prescribed in the foregoing articles have been performed, the judge shall call a meeting of the persons interested, naming a day within the next eight days, so that they may agree upon the administration of the estate, its custody, and preservation. ART. 1068. If such agreement can not be reached, the judge shall decide what shall be done according to the circumstances, subject to the following rules: 1. The cash and public securities shall be deposited in the public establishment provided for this purpose. 2. The jewelry, personal property, live stock, and products collected shall be deposited, the depositary being required to give proper security. 3. The widower or widow, or, in their absence, the interested person who has the largest interest in the estate, if in the judgment of the judge he possesses the capacity necessary to discharge the duties of the office, shall be appointed administrator. 4. If these requisites should not be possessed by the person having the greatest interest in the estate, or if the interest of all the persons in interest, or some of them, should be equal, the judge may appoint any one of said persons, or a disinterested party. 5. Whoever be the administrator appointed, he shall furnish security sufficient to answer for the personal property he may receive and for one year's rent of the real estate, unless the interested parties waive the security by common consent. 6. If no agreement is reached as to this point, the security shall be "I'he inventory does not become null and void if the order prescribed in this article is not observed, provided that all the property is therein described.-Decision of Jicte 4, 1867.

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LAW OF CIVIL PROCEDURE. in proportion to the interest in the estate of those who refuse to relieve him of this obligation.1 ART. 1069. At the meeting referred to in article 1067 the interested parties must also agree as to the appointment of one or more auditors to make the partition of the estate. Should they not so agree, each party or group of parties having equal interests in the estate shall designate an auditor, and efforts shall be made to secure an agreement to appoint an auditor to settle differences, who must be an attorney. In courts where there still exist judicial auditors by reason of an alienated office,2 and until said offices have reverted to the State they shall continue discharging the duties which this law confers upon the auditors appointed by the parties. Judicial auditors by reason of an alienated office may be challenged for the same causes and in the same manner as experts. ART. 1070. The parties attending said meeting shall also agree to the appointment of the experts to be employed by the auditors for the purpose of appraising the property, or they may authorize the latter. to appoint one or more by common consent and for each to appoint his own, if an agreement can not be reached. ArT. 1071. If any of the persons present at the meeting should refuse to appoint an auditor or expert, he shall be considered as agreeing to the appointments made by the other interested parties. ART. 1072. If no agreement can be reached at the meeting on the appointment of an auditor-umpire, the provisions of articles 615 to 624 of this law shall be observed. The same shall be done in case the experts do not agree in their appraisements. 'Neither the judicial administrator nor his bondsmen have any other obligations than those specified in the order of appointment.-Decision of November 24, 1883. A judgment which declares valid the proceedings had for the appointment of a depositary of the property of an estate does not put an end to the main proceedings, nor does it make its continuation impossible and therefore it is not definite for the purposes of annulment of judgment.-Decision of March 6, 1885. 2 One of the evils from which Spain has suffered since the earliest period was the alienation of offices and employments of all kinds, there being included therein the offices of court clerks, solicitors, and even offices of the department of public prosecution, it having reached such a point that in consideration of a sum of money the right would be granted to fill all the offices of court clerks in an entire province. Formerly, the royal power being absolute, it was considered that the King had the power to dispose at will of everything that belonged to the nation, from which was derived the privilege not only to sell all public offices and employments for the purpose of covering the deficit of the Treasury, but also to donate them gratuitously or as a remuneration for other services, there often being new offices created for the sole purpose of placing them upon the market. The evils of this system are still being felt, as a great many offices are in the hands of private individuals by virtue of ownership notwithstanding the fact that their reversion to the State has been recognized as a necessity, their owners to be indem-. nified for the loss of said offices in the manner considered most convenient.--Alcubilla, Diccionario de Legislacion y Jurisprudencia. 208

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LAW OF CIVIL PROCEDURE. ART. 1073. After the auditors or, in a proper case, the experts have been appointed, and after they have accepted their appointments, the record of the proceedings shall be delivered to the former, and all matters, documents, or papers which they may require for making the inventory, in case it has not been made, and for making the appraisement, liquidation, and partition of the estate shall be placed at the disposal of both the auditors and experts. ART. 1074. The acceptance of the auditors shall give the right to each of the interested parties to compel them to fulfill their duties, which must be concluded within a reasonable period, taking into account the scope and difficulty of the proceedings. ART. 1075. Also, at the instance of an interested party, the judge may fix a time within which the auditors shall submit their report of the partition, and if they do not do so, they shall be liable for all losses and damages. ART. 1076. The report of the partition shall be submitted by the auditors drafted on ordinary paper and signed by all of them, and shall contain: 1. A statement of the property which, in the opinion of each, is subject to partition. 2. The appraisement of the property included in said statement. 3. The liquidation of the estate, its partition, and the award made to each of the participants. ART. 1077. The auditor-umpire, summarizing the questions on which the parties agree, shall confine himself, in accordance with law, to settling such proceedings in which there is disagreement, endeavoring to avoid both the nondivision as well as the excessive partition of the landed property. ART. 1078. A statement of the partition made by the auditors shall be subject to inspection in the office of the clerk of the court for eight days, the parties being notified thereof. ART. 1079. This delay shall be dispensed with if all the parties appear in court, either in person or in writing, stating their agreement with any of the plans of partition. In the second case it shall not be necessary to ratify it when all have signed the instrument or presented it in person, which fact shall be certified to by the court clerk in a written statement. ART. 1080. Said period having elapsed without objection, or as soon as the parties interested have stated their agreement, the judge shall order the record brought before him and shall render a ruling approving the statement of partition, and ordering it to be placed on record upon payment of the amount due for the proper stamped paper. AnT. 1081. All questions in dispute between the auditors shall be discussed and decided in the statement of the umpire. 'See articles 1051 et seq. of the Civil Code. 5190 14 209

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LAW OF CIVIL PROCEDURE. ART. 1082. If within the period fixed in article 1078 the parties raise no objection to the plan .of the auditor-umpire, or state their agreement with any other, the judge shall approve the same and shall order it to be recorded, upon the payment of the amount due for the proper stamped paper. ART. 1083. If the interested parties or any of them request, within eight days, that the record of the proceedings and the statement of the partition be delivered to them for examination, the judge shall order said delivery for a period of fifteen days for each party making such request. ART. 1084. At the expiration of the fifteen days mentioned in the foregoing article, without any objections being filed, the record shall be recovered, without the necessity of compulsory process, and the statement of partition shall be approved in the manner provided for in article 1080. ART. 1085. If any objection to the statement of partition made by the umpire-auditor should be filed against the same within the period allowed therefor, the judge shall call a meeting of the interested parties and said auditor, so that, after mutual deliberation, they may agree upon what they may deem most convenient. The proper minutes shall be made of this meeting, which shall be signed by all those present. AnT. 1086. If all the interested parties should agree upon all questions raised; the agreement shall be carried into effect, and the umpireauditor shall insert the changes agreed upon in his statement of partition. ART. 1087. If no agreement is reached, the procedure prescribed for the proper ordinary action, according to the amount involved, shall be followed, and the papers shall first be delivered to the parties who first requested the delivery to them of the partition reports according to article 1083. ART. 1088. The representative of the department of public prosecution shall also be heard when the appraisement made and included in the statement of partition is impugned for bribery or fraudulent agreements between the arbitrator expert and one or more of the parties in interest for the purpose of increasing or reducing the value of any part of the property. ART. 1089. If sufficient reasons exist for believing that bribery or fraudulent agreements have occurred in making the appraisement, the judge shall order that an authenticated copy be made of all that may be necessary in order to institute criminal proceedings against the guilty parties. ART.1090. If the interested parties cancel the appraisement impugned, referred to in the foregoing article, and have another made within the time prescribed for the introduction of evidence, the action shall be terminated by a judgment. Otherwise the judgment shall be suspended .210

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LAW OF CIVIL PROCEDURE. until a final judgment is rendered in the proceedings instituted by virtue of the provisions of said article. ART. 1091. After the partition has been definitely approved, there shall be delivered to each of the interested parties the part adjudged to him, together with the title deeds, after the court clerk has entered thereupon a memorandum of the adjudication. As soon as said partition has been recorded, there shall be given to the participants requesting it a certified copy of their interest and their respective adjudication. ART. 1092. When the proceedings have been instituted at the instance of one or more creditors, the delivery of the property shall not be made to any of the heirs or legatees until the creditors have been paid in full or have been given satisfactory security for their claims.' SECTION III.-Necessary testaientary proceedings. ART. 1093. Necessary testamentary proceedings shall only be instituted in the cases prescribed in article 1040, subject to the limitations mentioned in article 1043. AuT. 1094. After the necessary steps have been taken for the security of the property, books, and papers, referred to in article 1041, these proceedings shall be continued as prescribed for voluntary proceedings, with the following modifications: 1. The inventory shall be judicially made. 2. The property shall always be placed in deposit, without any agreement to the contrary being permissible. 3. The administrator shall furnish sufficient. security for the property administered by him. If the interested parties who are of age have relieved him of this obligation, the security then shall be in proportion to the participation which the minors, incapacitated persons, or absentees have in the estate, and it can not in any case be waived. Until these measures have been adopted the judicial intervention can not cease, if requested as prescribed in article 1047. SECTION IV.-Adiiinistration of estate inheritances. ART. 1095. In all the testamentary proceedings the dispositions of the testator relating to the administration of his estate shall be observed tind complied with until said estate is delivered to the heirs. ART. 1096. If the testator should have made no disposition in this regard, the administration of the estate shall be governed by the rules prescribed for intestate inheritances in Section IV of the foregoing 1 See articles 1026, 1031, 1032, and 1034 of the Civil Code with regard to the rights of creditors, and articles 1082 et seq. with regard to the payment of hereditary debts. z See articles 965, 966, paragraph 2, 967, 1.020, and 1026 et seq. of the Civil Code relating to the administration of hereditary property, 211

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LAW OF CIVIL PROCEDURE. title, the provisions of which shall be applicable thereto, with the exception of those of article 1007. ART. 1097. The administrator of the estate shall represent the same only in matters relating directly to the administration thereof, its custody and preservation, and for that purpose he may and must take the necessary steps and institute such proceedings as may be proper. ART. 1098. When judicial intervention is being had upon the property of the estate, the heirs may be present at the opening of the correspondence, which, according to article 968, must be done in the presence of the administrator. ART. 1099. At the instance of the interested parties, the judge may order that there be delivered to the heirs and legatees and to the surviving spouse for maintenance, from the income of the administration, a sum not to exceed the net product of that part of the estate to which they may be entitled. The judge shall fix the amount and the period when the administrator shall make such payments.' TITLE XI. ADJUDICATION OF PROPERTY TO PERSONS NOT DESIGNATED BY NAME.2 AR. 1100. When a testator has ordered that the whole or a part of his property be distributed among his relatives within a certain degree, among the poor or other persons under certain conditions, but without designating them by name, in order to establish the legal right and make the adjudication of the property, the procedure established in this title shall be observed. AnT. 1101. The same procedure shall be employed for the adjudication of the property of any foundations to be distributed among the Maintenance must be allowed from the (late it is judicially requested, because it is to be presumed that it is not needed before it is thus requested, no matter if it was requested extrajudicially.-Decision of April 15, 1885. It is incorrect to suppose that article 1099 of the Law of Civil Procedure grants to the judge of first instance the exclusive jurisdiction to fix and regulate the amount to be allowed for maintenance to the heirs and legatees and to the surviving spouse, because neither is this declaration made in the said article nor can it he taken as granted, because as the ruling ordering and fixing the amount of said maintenance may be appealed from for review and for a stay of proceedings, as soon as appealed from it is the duty of the audiencia to take cognizance of the entire matter in second instance, without any limitation whatsoever and vested with the same powers as the judge to consider and determine the amount thereof.-Decision of March HG, 1888. 2In order to institute the universal proceedings referred to in this title, it is an indispensable requisite that one of the cases referred to. in the first two articles of the same is attendant; that is to say, that the testator has ordered that all or a part of his property be distributed among his relatives within a certain degree, among the poor br other persons, but without stating their names, etc.-Decision of March 2, 1887, 212

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LAW OF CIVIL PROCEDURE. relatives designated by the founder or by law, and in similar cases where the courts are called upon to adjudicate upon a question of right. ART. 1102. These universal proceedings 1 may be instituted by any or all the persons who consider themselves as having any right to the property, as well as by the representative of the department of public prosecution on behalf of the State, provided the testator has not othwise disposed. ART. 1103. The petition shall be prepared according to the provisions of article 523, and shall be accompanied by the will or foundation and all other documents upon which the action, as well as the right of the petitioner to the property, may be based. A copy of the petition on ordinary paper shall accompany the S original. ART. 1104. If from the said documents it should appear that the petition is based upon any of the cases referred to in articles 1100 et seq., the judge shall admit it, ordering that those who believe themselves entitled to the property be called by edicts to appear and assert such rights within a period of six months, counted from the date of the publication of the same in the Gaceta de Ifadrid. ART. 1105. The edicts referred to in the foregoing article shall be published and posted in the public places of the locality where the proceedings are being held, in the town or towns where the property is located, and in the other places where, taking into consideration the birthplace of the testator or the object of the institution, it may be presumed that such persons reside. They shall be inserted also, if there be any, in the .Bolatin Oftcial of the province or provinces to which they appertain, in the Gaceta of Habana or of Porto Rico, in a proper case, and in that of Madrid, attaching to the record a copy of the periodical in which the publication may be made. ART. 1106. The edicts shall contain the name, surname, and birthplace of the testator or founder, the date of the will or foundation, and anything else that may furnish information as to the object of the institution, and as to the persons entitled to participate in the property, as well as the name and surname of the person or persons who may have instituted the proceedings, and their degree of relationship to the testator or the reasons upon which they base their rights. ART. 1107. The representative of the department of public prosecution, on behalf of the State, shall be a party to these proceedings until the same are concluded by a final judgment. For such purpose the deputy public prosecutor of the court shall be cited and summoned to appear as soon as the petition has been admitted, 1See note to article 166. 213

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LAW OF CIVIL PROCEDURE. and the copy of the latter presented by the plaintiff shall be delivered to him and he shall be notified of all the orders therein issued. ART. 1108. All parties who appear in the action alleging a right to the property must file the documents upon which they base their claims, and in a proper case the corresponding genealogical tree. Should they not have any of these documents at hand, they shall indicate the archives in which they maybe filed, offering to present them at the proper time. The instruments and documents shall be attached to the record in the order in which they are presented. ART. 1109. Upon the expiration of the period prescribed in the first edicts, a second call shall be made for the same time, in the same manner, and with the same publicity, as prescribed in article 1105. In these edicts shall be stated the fact that it is the second call to appear and the names of the persons who may have already 'appeared alleging a right to the property, with a statement of the degree of relationship or the reasons upon which they base their claim. ART. 1110. At the same time and with the same requisites a third call shall be made, upon the expiration of the period of the second, stating in the same that it is the third and last, and adding the admonition that any party who does not enter appearance within this third and last period shall not be heard in the proceedings. ART. 1111. After the court clerk shall have certified to the fact that the periods required by the three calls have expired, and that the petitions of all persons appearing have been attached to the record, the said record shall be given to the deputy public prosecutor for the period which the judge may consider necessary, but which can not exceed twenty days, in order that he may report as to whether universal proceedings are proper, and if the parties who have appeared, or any of them, possess the qualifications necessary for requesting an adjudication of the property. ART. 1112. Should the deputy public prosecutor object because of the impropriety of the proceedings, or because none of the claimants has the qualifications required in order to participate in the property, the judge shall order that the parties be notified so that they may defend their rights in an ordinary action, should they so desire. ART. 1113. Should the deputy public prosecutor make no objection, and if there be two or more claimants, the judge shall order a meeting to be held on a fixed day and hour within the following fifteen days. At this meeting, which may be attended by the deputy public prosecutor and the counsel of the parties, they shall discuss their rights to the property, and the results shall be stated in the minutes, which shall be signed by all those present. -ART. 1114. If in the meeting there should be a unanimous agreement as to the right to the property, and as to the participation of each, 214

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LAW OF CIVIL PROCEDURE. or in case there is but one claimant, and the deputy public prosecutor has made no objection, the judge shall order the record to be brought before him with a citation of the parties, and shall render judgment, making such declarations as he may consider proper according to law. This judgment may be appealed from, both for review and a stay of proceedings. ART. 1115. Before rendering said judgment, the judge may, in the furtherance of justice, order that the comparison of any document of doubtful validity be made, or that any other document which he considers necessary be included in the record. ART. 1116. When no agreement has been reached at the meeting, the judge shall order the proceedings closed, and that the parties allege their rights in a declaratory action. ART. 1117. Both in this case as well as in the case referred to in article 1112, the persons interested may assert their rights in the ordinary action corresponding to the amount of the property involved, and, if it be unknown, in an action of greater import, all parties making common cause litigating jointly and with the same counsel. ART. 1118. For the proper order of these proceedings, the following rules shall be observed: 1. The record shall be delivered to the party instituting the proceedings, in order that, within a period of ten days, he may amend his petition by realleging or modifying his claims. 2. If said party should abandon his petition by acknowledging a better right in one or more of the other claimants, the record shall be delivered to them in order that they may assert their claims; and if no such acknowledgment is made, said delivery shall be made to the party who first appears in the proceedings. 3. The complaint shall be referred, without a new summons, to the other claimants in the order in which they entered appearance in the proceedings, and the record shall be delivered for a period of ten days to each party to enable him to present his respective claims. 4. In the case referred to in article 1112 the deputy public prosecutor shall be considered as the defendant, and the record shall be delivered to him for his answer thereto, after all the claimants have presented their claims to the property. 5. The deputy public prosecutor shall also be considered a party in the case referred to in article 1116, and the record shall be delivered to him as soon as the claimants have filed their claims, in order that he may request what he may consider proper on behalf of the interests of the State, or in reference to the fulfillment of the religious bequests to which the property is subject. If he should have allegations to make with regard to these matters, he shall return the record with the indoisement Examined (Iistos), in which case a new hearing shall 215

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LAW OF CIVIL PROCEDURE. not be granted him unless he should request it; but he shall be notified of all the orders issued until final judgment is rendered. 6. The petitions of the claimants shall be drafted in the manner prescribed for complaints, accompanied by as many copies thereof as there are other litigants, to whom they shall be delivered for the purposes referred to in article 519 with regard to successive services in which the record shall no longer be delivered. 7. As soon as all the claimants have presented their claims, the proceedings shall be continued according to the procedure prescribed for ordinary actions of greater or lesser import, as the case may be, after answer is made to the complaint; and the judge shall order the interested parties, who have not already done so, that those making common cause shall, in the further prosecution of the same, litigate jointly and with the same counsel. ART. 1119. When the right of one or more of the claimants is acknowledged, the same judgment shall determine what may be proper in order to insure the fulfillment of the religious bequests against the estate, even though no request is made therefor and no discussion thereupon has taken place in the proceedings. ART. 1120. As soon as the judgment becomes final it shall be executed in the proper manner, with the intervention of the representative of the department of public prosecution only in case it is necessary to insure the fulfillment of religious bequests or any others in favor of the State or of some corporation or institution dependent thereupon. ART. 1121. When the estate is to be divided among several interested parties, and judicial intervention is requested or becomes necessary, the procedure prescribed for testamentary proceedings shall be observed. ART. 1122. With regard to the administration of the property which may be the object of these proceedings, the dispositions of the testator shall be observed and enforced. If he should have left no instructions, or if the property has for any reason been abandoned, the judge shall take the necessary measures for the security, custody, and preservation of the said property, the provisions established for intestate administrations being observed. ART. 1123. The judge shall also see that all charges imposed upon the estate by the testator or founder shall be punctually paid out of the income derived therefrom. ART. 1124. No one shall be admitted as a party to these proceedings. who did not enter appearance during the -periods fixed in the edicts, even though they allege that the judicial calls did not come to their knowledge, but they shall reserve their right and institute an ordinary action thereupon against the interested party or parties to whom the property has been adjudicated, as soon as the judgment becomes final. 2186

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LAW OF CIVIL PROCEDURE. ART. 1125. Notwithstanding the provisions of the foregoing article, if in the cases referred to in articles 1112 and 1116, an ordinary action has been instituted in order to secure a declaration upon the right to the property, any person who believes himself to have a preferential right thereto may appear in such action and shall be considered a party thereto, whatever be the status thereof, but in no case shall there be any retrogression in the proceedings, the provisions of articles 765 et &eq. being observed. ART.1126. Neither shall other actions be admitted which, during the prosecution of these universal actions, may be separately presented, either in the same or any other court by parties not appearing in said universal actions and presented for the purpose of securing a declaration of their rights to the property. ART. 1127. Such actions shall be suspended until a final judgment is rendered in the universal proceedings, and thereafter said actions shall be admitted as against the parties in favor of whom the declaration of right and the adjudication of the property may have been made in the judgment. TITLE XII. INSOLVENCY PROCEEDINGS. SECTION I.-Co Uposition aW( respite. ART. 1128. Every debtor, not a merchant, before presenting himself as an insolvent, may judicially request of his creditors composition and respite, or both. This request must necessarily be accompanied by1. A statement giving the names of all his creditors, their domicile, the origin, time, or date of the credits, and the amount of each one. 2. Another detailed and exact statement of his property and its market value according to his opinion. He can omit from this statement only such of his property as may be exempt from seizure according to article 1447. These statements shall be signed by the debtor or by his representative having a special power of attorney therefor. ART. 1129. The judge shall act upon said request, and shall immediately order a meeting of the creditors to be called, fixing a period therefor, which can not exceed thirty days, in order that those who reside in the respective territory of the islands of Cuba and of Porto Rico may attend, and the place where and the day and hour when it is to be held. ART. 1130. At the request of the debtor, the creditors residing beyond the territory mentioned in the foregoing article shall be personally cited to appear, in which case the period above mentioned may 217

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LAW OF CIVIL PROCEDURE. be extended to such time as the judge may consider necessary to enable them to attend the meeting. ART. 1131. Only the creditors included in the statement filed by the debtor shall be cited to appear and attend said meeting. The citation of persons having a known domicile shall be made personally by means of a writ. Others shall be cited by means of edicts in the manner prescribed in article 269. ART. 1132. In the writs of citation, as well as in the edicts, besides making the statement prescribed in article 272, it shall be ordered that the creditors appear at the meeting with the evidence of their claims, without which requisite they shall not be permitted to attend the same. ART. 1133. If executions are pending against the debtor, they shall not be consolidated with this proceeding, but the course thereof shall be suspended, if the executions are in process of enforcement and before the sale of the property, if the debtor so requests of the judge taking cognizance of the proceedings for composition and respite, who shall give notice thereof to the other judges in writing. ART. 1134. Executions against property, specially mortgaged, are excepted from the preceding provisions. The suspension granted by virtue of the provisions of the foregoing article shall be raised dejure if two months should elapse without the composition and respite being granted, or as soon as it is denied. ART. 1135. The creditors may be represented at the meeting by a third person, duly authorized by power of attorney, which document must be presented in order to be attached to the record. Persons authorized to appear for more than one creditor shall have but one personal vote, but the claims they represent shall be taken into consideration to form the majority of the amount represented. ART. 1136. In order that said meeting may be held it is necessary that the number of creditors attending the same should represent at least three-fifths of the liabilities. ART. 1137. The meeting shall be held on the day fixed, under the chairmanship of the judge and with the assistance of the court clerk, subject to the following rules: 1. The court clerk shall make a memorandum of the persons present and their claims which he shall insert in the minutes of the meeting, and at the same time the judge shall examine the written evidence of the credits and the powers of attorney, in a proper case. If those who have complied with these formalities represent at least three-fifths of the liabilities, the judge shall declare the meeting open. 2. Immediately thereafter the articles of this law having reference to the object of the meeting, the petition of the debtor, and the statement of the debts and property filed with said petition, shall be read and the discussion opened. 218

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LAW OF CIVIL PROCEDURE. 3. After two creditors have spoken in favor and two against, if this privilege has been requested, and after the debtor or his representative has spoken as often as may be considered necessary to reply to the remarks made, and explain any doubts that may arise, the judge, when he considers that the propositions have been sufficiently discussed, shall declare the discussion closed. 4. The debtor may modify his proposition or propositions in view of the result of the discussion, or may insist upon those which he may already have made, and without further discussion the judge shall clearly and precisely put the several propositions before the meeting for vote upon the same. 5. The vote shall always be taken by a call of names and shall be inserted in the minutes, the vote of the majority being decisive. 6. In order to form a majority it is necessary: First. That two-thirds of the votes of the creditors taking part in the voting unite upon the same proposition. Second. That the credits of those whose votes form the majority amount to at least three-fifths of the total liabilities of the debtor. 7. After the vote has