TITLE XIV. PROVISIONAL SEIZURES AND SECURITY OF PROPERTY IN

LITIGATION.

SECTION I.-PROVISIONAL SEIZURES."

ART. 1395. It shall be the duty of the judges of first instance to order provisional seizures when requested for the purpose of insuring the payment of a debt exceeding 1,000 pesetas.

If the debt should not exceed this amount, municipal judges may order the seizure, if it should be requested at the time suit is instituted, to recover the payment of said debt."

ART. 1396. Notwithstanding the provisions of the foregoing article, in cases of urgency, even though the debt exceeds 1,000 pesetas, the provisional seizure may also be ordered by the municipal judge of the town in which the property to be attached is situate, as prescribed in rule 12 of article 63; but as soon as the attachment is made, he shall forward the proceedings to the judge of first instance, who may order, at the instance of a party, the correction of any error which may have been committed.

ART. 1397. Provisional seizures may be made for debts in cash as well as in kind.

In the second case the plaintiff shall, under his liability, for the purposes of the attachment, fix the amount in cash which he claims, calculated in accordance with the average market price in the town, without prejudice to subsequently submitting evidence of said value in the proper action.

ART. 1398. In order that a provisional seizure may be ordered it shall be necessary

code in force and the balance in article 903, but with the addition of a fifth number.

Rule 1 of article 1157 of the Code of Commerce can not be considered violated when it is not proven that there has been any breach of form in the call, holding, and deliberations of a meeting of creditors. (Rule 5 of article 903 of the code in force).—Decision of January 25, 1868.

The law authorizes the raising of questions of competency in proceedings relating to provisional seizures, as it determines who is competent to take cognizance thereof, and as the debtor can not be denied the right to be a legitimate party to the provisional seizure, as it is directed against his property, he has the same right, in accordance with article 73, to interpose an inhibitory plea when the period granted by article 1416 within which to object to said provisional seizure has not elapsed. This is stated in a decision of March 15, 1887, which at the same time laid down rules relating to the competency to take cognizance of provisional seizures.

Even though the defendant should be a minor, the order for the attachment shall not be suspended.-Decision of May 18, 1869.

Orders rendered in proceedings relating to provisional seizures are not definite for the purposes of an appeal for annulment of judgment, because they do not terminate the action.--Decision of November 25, 1876.

Private debts which a municipality may have in its favor by reason of due and unpaid installments of an annuity on real estate (censo), or on account of indebtedness of a similar character, can not and must not be recovered according to the procedure prescribed in the instructions of December 3, 1880, because said instructions only determine the proceedings to be employed by the treasury for the recovery of taxes. Therefore the seizures and sales made thereunder by municipalities without instituting an action before the ordinary courts are null and void.-Decision of February 19, 1889.

1. That documentary evidence of the existence of the debt be presented with the petition.

2. That the attachment debtor be included in any of the following

cases:

That he is a foreigner not naturalized in Spain.

That even though he be a Spaniard or a naturalized foreigner, he has no known domicile or does not own real property, or does not have any agricultural, industrial, or commercial establishment at the place where payment of the debt may be legally demanded.

That although he may not be included in the circumstances just mentioned, he has disappeared from his domicile or establishment without leaving any person at the head thereof, and if he should have left some one in charge, said person ignores his residence, or that he conceals himself, or that there are reasonable grounds to believe that he will conceal or undersell his property to the prejudice of his creditors."

ART. 1399. If the title presented should be one by virtue of which an execution can be ordered without further proceedings (título ejecutivo), the provisional seizure may be at once ordered.

Should it not have this character without the acknowledgment of the signature of the debtor, it may also be ordered for the account and at the risk of the person requesting it.

If the debtor should not know how or not be able to sign, and another should have done so at his request, the provisional seizure may also be ordered at the expenses and risk of the creditor, provided that the former, having been cited twice at intervals of twenty-four hours to declare under a not decisory oath as to the genuineness of the documentary evidence of the claim, he should not appear in answer thereto.

After the document has been acknowledged, even though the debt should be denied, the seizure may be ordered in the manner aforementioned.

ART. 1400. In the cases mentioned in the last three paragraphs of the foregoing article, if the person requesting the attachment should not be of well-known responsibility, the judge shall require him to furnish security sufficient to answer for the damages and costs which may be suffered or incurred.

a Orders for provisional seizures do not terminate the proceedings and therefore an appeal for annulment of judgment is not proper.-Decision of October 15, 1859.

The simple fact, without further data or information, that a debtor does not acknowledge his signatures nor the truth of the debt, is not, as a general rule, reasonably sufficient ground to believe that he will conceal or undersell his property to the prejudice of his creditors. Decision of October 3, 1888.

This article has been amended for Cuba by civil order No. 141, of April 7, 1900, which see in Appendix.

When a provisional seizure is vacated on account of the nonattendance of any circumstances which authorize the same, a necessary consequence is an adjudication upon costs and the payment of losses and damages.-Decisions of October 15, 1859, and April 24, 1876.

A ruling denying the ratification of a provisional seizure is not final nor does it put an end to the proceedings or make its continuation impossible, as it is confined to the decision of an incidental issue, the purpose of which is to take a precautionary measure which neither gives nor takes away any rights to the property in litigation, and, therefore, an appeal for annulment of judgment against such rulings can not be allowed.-Decision of December 23, 1876.

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This security may be of any of the kinds allowed by law; but if the judge should allow a personal bond, he shall do so under his liability.

ART. 1401. If the judge should find that the petition of the creditor is proper, he shall order the provisional seizure as speedily as the case may require, and it shall be enforced without hearing the debtor at the time nor allowing any remedy whatsoever.

If he should refuse to order the seizure, the creditor may interpose the remedies of a rehearing and an appeal, in accordance with articles 376 and 379, the latter being allowed both for a review and for a stay of proceedings.

ART. 1402. The same ruling by which the attachment is ordered shall serve as a mandate to the bailiff (alguacil) and court clerk who are to make the seizure.

ART. 1403. The seizure shall not be made, if, at the time of making it, the person against whom it is issued should pay, deposit, or furnish security for the amount claimed.

ART. 1404. In such case, the attaching officials shall suspend all proceedings until the judge of first instance, or the municipal judge, in a proper case, in view of the security furnished, determines what he may deem proper, although said officials shall take in the meantime, under their liability, the measures which may be proper to avoid the concealment of property and any other abuse which may be committed.

ART. 1405. When no order has been issued to the effect that the attachment be confined to certain things, sufficient property shall be seized to cover the amount claimed, the order established in article 1445 for executory actions being observed.

ART. 1406. The plaintiff may be present when the seizure is made, and designate the property of the debtor upon which the attachment is to be levied according to the order indicated in the foregoing article.

ART. 1407. If the property attached should be real property, the attachment shall be limited to the issue of an order to the register of property to make the proper cautionary notice (anotación preventiva).

If personal property or live stock should be involved, it shall be deposited with a responsible person; if cash or public securities, they shall be deposited in the establishment provided therefor, should there be any in the town, otherwise they shall be deposited as is other personal property, the proper guaranties being required of the depositary, without prejudice to transferring the same to said establishment within a brief period.

ART. 1408. If the attachment should have been levied upon property in the possession of a third person, the latter shall be ordered to keep the same under his liability at the disposal of the court.

Upon the same day notice of this proceeding shall be given to the attachment debtor if he should reside in the town and were found at his domicile; otherwise he shall be informed thereof by a writ or in the manner which may be proper.

a Ths article has also been amended by the order mentioned in the note to the foregoing article.

ART. 1409. A person who has requested and obtained a provisional seizure for an amount of more than 1,000 pesetas must request the ratification thereof in an executory action or in the declaratory action which may be proper, filing the corresponding complaint within twenty days after the levying of the attachment.

Upon the expiration of this period without the action having been instituted or a ratification of the seizure having been requested, the latter shall be null de jure, and shall be without effect at the instance of the defendant without the plaintiff being heard.

A petition for a rehearing may be made against this ruling, and if it should not be granted, an appeal for a stay and review of the proceedings may be interposed."

ART. 1410. Notwithstanding the provisions of the foregoing article, if the debtor should be included in any of the cases of article 1398, the provisional seizure may also be ordered after the institution of the action, a separate record being made thereof.

The provisions contained in articles 1399 to 1410, inclusive, shall be applicable to this case, and after the attachment has been levied the proceedings thereupon shall be continued as prescribed for incidental issues.

When an attachment is vacated by a final ruling, because it is not included in any of the cases of said article 1398, the plaintiff shall be taxed all the costs and be adjudged to indemnify the defendant for any losses or damages he may have suffered, which shall be recovered in the manner prescribed in article 1415.

ART. 1411. When the provisional seizure becomes of no effect by reason of its having become null de jure in accordance with article 1409, the surety shall be ordered canceled in the same ruling, if any should have been furnished, or what may be proper shall be ordered for vacating the attachment and canceling the cautionary notice, in

If the ratification of a provisional seizure should be requested before the expiration of twenty days it shall be valid, even though said ratification should be decreed after the expiration of this period. Decision of October 14, 1884. After a provisional seizure has been ratified a question of competency can not be raised with regard to the same, because it is a closed judicial question.— Decision of March 3, 1885.

A provisional seizure having been requested and obtained at the expense and risk of the plaintiff, and said seizure being declared improper by a final judgment, the plaintiff must be adjudged to pay the costs, because in the payment thereof the defendants would suffer damage to their interests, and the person who commits an injury must not only make good the damages he may have directly caused, but also the injury which may be a consequence of his action, according to law 3, Title XV. Partida 7.-Decision of April 7, 1868.

With the exception of the cases referred to in article 1410 of the law of procedure, in which the provisional seizure is requested after the main action has been instituted, the compentency to take cognizance of said seizures must be determined by rule 12 of article 63 of the law; that is to say, the judge competent is the one of the place where the property to be attached is situated. Decision of March 15, 1887.

When the attachment treated of in a demand in intervention does not have the character of a provisional seizure, and, furthermore, was not levied for any of the causes specifically mentioned in articles 1410, 1411, and 1416 of the law of civil procedure, said articles can not have been violated, nor can they be cited for the purposes of an appeal for annulment of judgment, and in order for them to be applicable it would be necessary for the creditor to have demanded the attachment of the property, knowing that it was not the property of the debtor, but of a third person.-Decision of May 27, 1889.

a proper case, and all costs shall be taxed against the plaintiff, who shall also be adjudged to indemnify the defendants for any losses and damages he may have incurred.

If the attachment should be vacated for any other reason, the ruling thereupon shall also determine what may be proper according to the cases with regard to cost and the indemnification of losses and damages which may have been suffered."

ART. 1412. If the acknowledgment of a signature or of the written. evidence of a debt should not be made or be delayed through the fault of the debtor, and if the filing of the complaint and the ratification of the attachment should depend thereupon, the time lost in obtaining said acknowledgment shall not be included in the period of time prescribed in article 1409.

ART. 1413. If the owner of the property seized should request it, the attachment creditor must file his complaint within the period of ten days, unless any of the circumstances mentioned in the foregoing article is attendant. Should he not do so, the attachment shall be vacated and the costs, losses, and damages shall be taxed against him. ART. 1414. After the provisional seizure has been levied, the debtor may object thereto and request that it be vacated, with indemnification of losses and damages, if not included in any of the cases of article 1398.

He may make this petition within the five days following that of the notice of the ruling ratifying the seizure, or before that time, if he should deem it proper, and it shall be heard and determined in a separate record in accordance with the procedure prescribed for incidental issues."

ART. 1415. In cases in which there is an adjudication of losses and damages, as soon as the ruling thereupon becomes final, they shall be recovered according to the procedure established in articles 927 et seq.

ART. 1416. In the case of the second paragraph of article 1395, the municipal judge shall order the provisional seizure, if he deems it proper, at the time of issuing the citation for the oral action, and shall ratify or vacate it in the judgment, according as to whether he renders judgment for or against the defendant.

If he renders judgment for the defendant, all the costs shall be taxed against the plaintiff.

He shall also adjudge him to pay the losses and damages, fixing the amount thereof, if the defendant should have requested it in the action.

SECTION II. SECURITY OF PROPERTY IN LITIGATION.

ART. 1417. A person who, presenting the documentary evidence of his rights, institutes an action for the ownership of mines, of wood

a A decision which denies the ratification of a provisional seizure is not definite for the purposes of an annulment of judgment.-Decision of January 31, 1884. An indemnification for losses and damages is not proper on account of a provisional seizure when the indemnification is requested after the debt has been acknowledged and the proper amount paid, and therefore the annulment of the judgment is not proper on account of the fact that said claim has been denied. Decision of March 10, 1885.

A judgment ordering the raising of a provisional seizure of property is not definite. Decision of May 4, 1885.

A judgment denying a petition to vacate an attachment is not definite.— Decisions of December 14, 1885, and January 26, 1886.