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 article

1. 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. When 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, 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 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.4

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.

The 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 Legislación y Jurisprudencia.

Juicio universal ó 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 Legislación y Jurisprudencia.

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.

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."

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."

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.

A decision, whether granting or denying the consolidation, is not final for the purposes of an appeal for annulment of judgment.—Decisions of September 28, 1866, October 15, 1868, January 12, 1870, September 29, 1871, and September 22,

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 in support of the denial are well founded, and shall answer the other 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 recov ering 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."

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 ac cording to articles 173, 176, 179, and 181, without prejudice to what may be proper after a decree to carry out the decision has been is sued in view of the appeal taken.

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.

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.

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.

a

TITLE V.-CHALLENGES.

SECTION I.-GENERAL PROVISIONS.

ART. 188. Justices and judges, whatever be their rank or heirarchy, 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 attor ney 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 administración española.

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.

An appeal for annulment 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.

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."

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 procedings, 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.

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 article 514 et seq.

"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.

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.

See in Appendix order No. 242, series of 1900, for change made for Cuba.