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 pauperis."

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.

Page 106, Section IV: Read "copies of papers and documents and the purposes for which they are filed," instead of "and their pur

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."

JANUARY, 1901.

FRANK L. JOANNINI, Official Translator.
M. E. BEALL, Assistant.

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-seventh Infantry, U. S. V. Chief of Division.

75270-09-16

241

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 Príncipe, 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.

To the GOVERNORS-GENERAL OF CUBA AND PORTO RICO.

242

TEJADA.

LAW OF CIVIL PROCEDURE.

Book I.-PROVISIONS COMMON TO CONTENTIOUS AND VOLUNTARY JURIS

DICTION."

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, AND 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."

a 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.

The 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.

c 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 representatives, 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, (Ibid, 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 of the minor in court pertains to the protutor. (Ibid, 236, number 2.)

Children not emancipated are represented by their parents (Civil Code, art. 155), and when said parents have an interest which is incompatible with those of their children, 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

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

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 conciliación).

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 suffering 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 depositary-administrator 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.

According to a civil order, dated April 23, 1900, the intervention of solicitors has ceased to be obligatory in Cuba. (See order in Appendix.)

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 of November 21, 1892.