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Argument for Plaintiff in Error.

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the Code of Civil Procedure contains complete provisions for such an adjudication. Articles 1409–1415. Before this judgment could be executed it would be necessary to resort to the procedure established in articles 927 et seq., under which by proper statements or pleadings and counter pleadings an issue is arrived at and set for hearing, witnesses are called, evidence introduced, and the court after due consideration of the record finds whether any damage has been suffered and, if so, to what amount. This finding becomes a part of the final judgment in the attachment suit.

The procedure bears a strong analogy to a suit in equity with a reference to a master to determine and liquidate the amount to be paid. This having been determined, a final decree is then entered embracing the amount so arrived at.

Such a preliminary finding on the law and the facts by a court in chancery is not, generally speaking, a final order and cannot be appealed from; it only becomes final when the master or the court has taken the necessary testimony to ascertain the amount due and has embodied it in the final decree. So there are repeated decisions by the Supreme Court at Madrid in which it is held that the preliminary order vacating the attachment and ordering the plaintiff to pay the costs and to indemnify the defendant for his losses and damages, is not final, and cannot be appealed from until the amount of the losses and damages has been ascertained in accordance with the procedure established in articles 927 et seq. of the Code of Civil Procedure. Decision of December 4, 1901, 92 Jurisp. Civil, 550; Decision of October 20, 1899, 88 Jurisp. Civil, 130; Decision of December 3, 1892, 72 Jurisp. Civil, 494; Decision of November 6, 1888, 64 Jurisp. Civil, 538; Decision of April 24, 1863, 8 Jurisp. Civil, 267.

The mode provided in title XIV for ascertaining losses and damages in the attachment proceeding itself was exclusive under the law then in force of every other mode. Navarro, Comentarios á la Ley de Enjuiciamiento Civil, pp. 411, 412. No

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Argument for Defendant in Error.

decision and no authority under the civil law of Spain can be found authorizing an independent proceeding.

The question of the constitutional right of trial by jury is not involved. The Federal court has no jurisdiction to grant an attachment except in accordance with local law. Waples on Attachment, p. 325; Bates v. Days, 17 Fed. Rep. 167.

The United States District Court for the District of Porto Rico, so far as the local laws are concerned, occupies exactly the position of a Circuit Court of the United States sitting in a State. It is therefore just as much bound as is a Circuit Court of the United States to the observance, with respect to the local laws of the island, of section 721 of the Revised Statutes; and to the observance of section 914, which requires Federal courts to conform “as near as may be” to the practice, pleadings, forms, of the courts of record of the State in which they sit. Nudd v. Burrows, 91 U. S. 426, where the reasons for the provision are set forth. See also Indianapolis &c. R. R. Co. v. Horst, 93 U. S. 291; Lewis v. Gould, 13 Blatch. 216; Sears v. Eastburn, 10 How. 187; B. &0.R.R. Co. v. Hamilton, 16 Fed. Rep. 181.

Even the tribal laws and customs of our American Indians have been accorded the dignity of being respected by the Federal courts. Mackey v. Coxe, 18 How. 100; Davison v. Gibson, 56 Fed. Rep. 443.

The record shows a fundamental error has been committed. The proposition is that the court had no such jurisdiction as it exercised, that it could grant no such remedy and that the whole proceeding was erroneous from its inception to its conclusion and this court may examine the laws of Porto Rico and determine whether the trial court had jurisdiction. Harvey v. Commonwealth, 20 Fed. Rep. 411.

Mr. Frederic D. McKenney, with whom Mr. Francis H. Derter, Mr. Wayne MacVeagh and Mr. John Spalding Flannery were on the brief, for defendant in error:

No objection to the jurisdiction of the trial court nor any

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objection whatever to the charge of the court to the jury was interposed by either party. Unless want of jurisdiction in the trial court by reason of the subject matter of the controversy appears from the face of the record, the judgment under review must be sustained. Hunt v. Hunt, 72 N. Y. 225.

The question thus presented is one of power in the trial court to act judicially upon the subject matter in suit, and it may be conceded that this court can properly consider and determine the contention of plaintiff in error that a civil action like the present one was at the date of the attachment and the commencement of this action unknown to and unauthorized by the laws and jurisprudence of Porto Rico. United States v. Perot, 98 U. S. 428; United States v. Chaves, 159 U. S. 459.

Civil actions for the recovery of damages for injuries to persons and property caused by the fault or negligence of another have been recognized both by the Roman and by the civil law from early times. Such actions have been administered in the peninsula since the establishment of the Spanish monarchy, and have always occupied an important place in the jurisprudence of that nation. Such actions were countenanced in the Law of the Twelve Tables and in the Justinian Codes, upon which the Spanish system of laws was largely founded.

The body of laws called “Las Siete Partidas" were in force in Porto Rico until 1889, when by royal decree the Civil Code since in force was extended to that province. The Code of Civil Procedure, likewise so extended, became effective in said province Jaunary 1, 1886.

Law I of Las Siete Partidas (tit. XV, part 7) declares that damage is the loss of or detriment to one's property or person caused by the fault of another. Law III declares that damages may be recovered from the tort feasor or from the one whose fault caused the damage; also from the person who ordered or advised the commission thereof.

The Civil Code, which supersedes the Partidas, though preserving the general features of the former legislation, gives much evidence of having been influenced both in its form and

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principles by the Code Napoleon. For example, article 1902 of the Civil Code, which directly pertains to this discussion, reads: "He who, by an act or omission, causes damage to another, fault (culpa) or negligence intervening, shall be obliged to repair the damage so done,” while the corresponding articles of the Code Napoleon read as follows: "Art. 1382. Every act whatever of man which causes damage to another obligates him by whose fault it has happened to make reparation.

“Art. 1383. Every person is responsible for the damage which he causes not only by his act, but also by his negligence or by his imprudence.”

Similar provisions are also to be found in the Civil Codes of Belgium, articles 1382 and 1383; Netherlands, articles 1401 and 1402; Austria, article 1295; Switzerland, canton of Vand, articles 1037 and 1038; Chile, article 2314; Guatemala, articles 2276 and 2277; Uruguay, article 1280; Argentina, article 1109.

Wherever the civil law system prevails practically identical provisions will be found, for all civil law codes find a common origin in the Law of the Twelve Tables and the Justinian Codes.

Upon the articles above mentioned many commentators have shed light both as to their scope and meaning. See Don Leon Bonel y Sanchez, Codigo Civil Español, vol. IV, p. 894 et seq. Toullier, Le Droit Civil Français, vol. 6, p. 94.

The administration of the civil law in Spain and her dependencies in regard to actions for torts, did not at the time of the institution of this suit greatly differ from that administered in other civil law countries, and apart from methods of procedure did not greatly differ from that in vogue in common law countries.

In the administration of civil law generally there is a wellrecognized distinction between the word “délit” (a wrong) when used in connection with civil and as used in criminal complaints. Aubry and Rau, under the title “Des Délits, Cours de Droit Civil Français, vol. 4, § § 443, 445. See also Laurent, Cours Elémentaire de Droit Civil, vol. 3, p. 207. See

Argument for Defendant in Error.

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also Decision of March 23, 1882, vol. 48, Jurisp. Civil, p. 394; Decision of June 14, 1886, vol. 60, Jurisp. Civil, p. 120; Deccionario &c., Alcubella, vol. 1, p. 122.

Admitting that the Spanish law in force in Porto Rico at the time of the levying of the attachment made ample provision in cases of wrongful attachment for the assessment of damages in the attachment proceedings itself, articles 1409–1415 of the Code of Civil Procedure, and that in case of dispute as to the fact of damages or the amount thereof, specifically provided for the method of their ascertainment by articles 927 et seq. of the same Code, it is submitted that these articles of the Code of Civil Procedure have no bearing upon the present case for two reasons: 1. Because the plaintiff in error, Fernandez, was not a party plaintiff in the attachment proceeding. 2. Because the United States Provisional Court for Porto Rico, in which the attachment proceedings were had, was without judicial power or authority to adjudicate in conformity with the provisions of the Spanish Code of Civil Procedure, damages against Fernandez.

The United States Provisional Court for Porto Rico was established by General Orders, No. 88. By article II the judiciary power of said Provisional Court was extended "to all cases which would be properly cognizable by the Circuit or District Courts of the United States under the Constitution, and to all common law offenses within the restrictions hereinafter specified.” Article IV thereof is as follows: “The decisions of said court shall follow the principles of common law and equity as established by the courts of the United States, and its procedure, rules and records shall conform as nearly as practicable to those reserved and kept in said Federal courts."

Article V declares that “the jury may be introduced or dispensed with in any particular case, in the discretion of the court; ” and article VI declares that “the judges of the Provisional Court shall be clothed with the powers vested in the judges of the Circuit or District Courts of the United States." Both Aguerria and Fernandez were subjects of Spain—the for

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