lege, where there is any, and in the absence of such college, by the judge.

If the promotor fiscal, 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 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.

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 II.-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."

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.

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.d

(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 Sep tember 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.

(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.-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 be fore 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.-Decisions of February 20, June 26, September 27, and October 25, 1880.

d 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.-Belt's Dic. and Digest of the Law of 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 December 20, 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

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 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.a

ART. 63. In order to determine competency, in cases other than those mentioned in the foregoing articles, the following rules shall apply:

action subjects him to the jurisdiction of the court before which the action was brought.-Decision of 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.

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,

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 (reconvención) the competent judge is the one taking cognizance of the main action.

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 ju risdiction 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."

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 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 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 February 27, 1885.

a 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 January 24, 1889.

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

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 claims of testamentary and hereditary creditors, during the pendency of the testamentary or intestate proceedings, jurisdiction 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 compe

tent.

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."

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 3, 1881.

In the Roman law, a universal fideicommiss consisted in the appointment of an heir with directions verbis precativis that he should restore the inheritance to a third person mentioned, the heir being called fiduciarius, 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.

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.

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 institu