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202 U. S.

Argument for Defendant in Error.

mer a citizen of Spain, the latter seemingly a resident of Porto Rico. Whatever might have been the regular procedure, so far as the recovery of damages is concerned, had Fernandez, acting for his principal, Aguerria, resorted to the proper insular court in connection with the attachment proceedings against Perez, and however Perez might then have been bound by the forms and methods of procedure provided by the articles of the Code above quoted governing the assessment of costs and damages, it is certain that the methods of procedure so provided neither helped nor hindered the parties to the action in the Provisional Court, for in the very authority which established that court it was expressly declared that "its procedure, rules, and records shall conform as nearly as practicable to those observed and kept in said Federal courts."

It is certain that there is no procedure known to the Circuit and District Courts of the United States by which Federal judges sitting therein are required or authorized to determine and assess damages alleged to have been suffered by reason of the wrongful suing out of an attachment, for an attachment proceeding is not a case of equity nor of admiralty nor maritime jurisdiction, and section 648 of the Revised Statutes of the United States, which but restates a provision of the Judiciary Act of 1789, provides that the trial of issues of fact in the Circuit Courts shall be by jury except in cases of equity and of admiralty and maritime jurisdiction, and except as otherwise provided in proceedings in bankruptcy, and except the parties or their attorneys of record waive a jury. Section 649.

By the act of April 12, 1900, the Provisional Court above referred to was abolished, and the District Court of the United States for the District of Porto Rico was declared to be its successor and authorized to take jurisdiction of all cases and proceedings pending therein. Section VIII of said act provides that the laws and ordinances of Porto Rico in force shall continue except as "altered or modified by military orders and decrees in force when this act shall take effect and so far as

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the same are not inconsistent or in conflict with the statutory laws of the United States not locally inapplicable."

The local law and practice cannot be recognized as a rule of procedure in the courts of the United States where its adoption would be repugnant to the Federal Constitution or impair the effect of any Federal legislation. Virginia Coupon Cases, 114 U. S. 303; Luxton v. North River Bridge Co., 147 U. S. 338. Whenever Congress has legislated upon any matter of practice, and prescribed a rule for the government of its own courts, it is to that extent exclusive of the state legislation on the same subject. Southern Pac. Co. v. Denton, 146 U. S. 209. See also Shepard v. Adams, 168 U. S. 625.

If it be true that the Porto Rican procedure required a defendant in attachment proceedings to demand the liquidation of his damages by the trial judge in that action on pain of losing all right to indemnification, it is nevertheless true that section 914, Revised Statutes of the United States, does not require any such procedure to be followed in the Federal court for Porto Rico, for to do so would be to deny the right of trial by jury except in certain cases.

The Law of Civil Procedure as adopted for Porto Rico in 1885, §§ 939, 940, corresponds with the Law of Civil Procedure of Spain and with §§ 1409 and 1413 in force in Porto Rico at the time of the attachment. Construing these laws Navarro in his Commentaries states that the person concerned shall "institute the ordinary suit" (p. 253). See also Decisions of November 26, 1857 and April 7, 1868; Derecho Procesal de España, Pozo, vol. 2, p. 188; Decision of July 6, 1885, 58 Jurisp. Civil, p. 265; Decision of July 21, 1893, 73 Jurisp. Civil, p. 954.

MR. JUSTICE DAY, after making the foregoing statement, delivered the opinion of the court.

This case was argued orally and upon briefs at the October term, 1903, of this court. After the case had been argued

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and submitted, on December 5, 1904, an order was entered as follows:

"No. 6. José Antonio Fernandez y Perez, Plaintiff in Error, v. José Perez y Fernandez. Counsel are requested to submit additional briefs on these points:

"1. Can this court, on the record of this case, properly consider and determine the contention of the 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?

"2. Was a civil action like the present one known to the laws and jurisprudence of Porto Rico at the time the attachment in question was sued out?

"3. Under the law of civil procedure as existing in Porto Rico at the time of the attachment proceeding complained of, could the damages herein claimed have been allowed or assessed in that proceeding upon the dissolution or discharge of the attachment? If so, was that mode exclusive of every other for ascertaining such damages?

Our views in this case will be practically in answer to these questions.

The case affords a striking illustration of the difficulty of undertaking to establish a common law court and system of jurisprudence in a country hitherto governed by codes having their origin in the civil law, where the bar and the people know little of any other system of jurisprudence. The action in this case was begun and tried upon pleadings and under principles which are controlling in a State following the common law, having its origin in England, and the case was submitted to the jury upon general principles governing such actions for the recovery of damages for the seizure of property upon writs of attachment issued maliciously and without probable cause. The action proceeded in all respects in form and substance as it would had it been begun and prosecuted in a common law State.

Cases which have come to this court from the Philippines and Porto Rico, where we have had occasion to consider the

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enactments making changes in the laws of those islands, show the disposition of the Executive and Congress not to interfere more than is necessary with local institutions, and to engraft upon the old and different system of jurisprudence established by the civil law only such changes as were deemed necessary in the interest of the people, and in order to more effectually conserve and protect their rights. Kepner v. United States, 195 U. S. 100, 122. This policy has been followed in dealing with the Porto Ricans. President's Message, December 5, 1899; Walton's Civil Law in Spain and Spanish America, 594. The new civil government was established by the act of April 12, 1900, commonly known as the Foraker Act. 31 Stat. 77. Section 8 of that act provides: "That the laws and ordinances of Porto Rico now in force shall continue in full force and effect, except as altered, amended, or modified hereinafter, or as altered or modified by military orders and decrees in force when this act shall take effect, and so far as the same are not inconsistent or in conflict with the statutory laws of the United States not locally inapplicable, or the provisions hereof, until altered, amended, or repealed by the legislative authority hereinafter provided for Porto Rico or by act of Congress of the United States.

The first inquiry then to which we shall direct attention concerns the law in force at the time of the passage of this act in Porto Rico, governing the issuing of attachments and the recovery of damages for wrongfully causing the same to issue and be levied. The additional briefs filed by counsel upon both sides in this case since the order of the court of December 5, 1904, above quoted, exhibit commendable zeal and industry in investigating this question and bringing to the attention of the court the Spanish treatises and cases throwing light upon the subject. Upon behalf of the defendant in error it is insisted that the action is governed by article 1902 of the Civil Code of Porto Rico, which provides: "Art. 1902. A person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so done."

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War Department Translation of the Civil Code in force in Cuba, Porto Rico and the Philippines, 244. Much discussion is had in the briefs as to the meaning of this section, and whether the term "fault"-" culpa" in the Spanish jurisprudence—is broad enough to include actions brought to recover for conduct which is alleged as malicious, as distinguished from those where the basis of the recovery is a careless act or omission which does not have for its motive the intention to cause damage.

In the view we take of this case we do not find it necessary to consider the authorities cited, or the views pressed pro and con as to whether a malicious act, such as is complained of in this case, is within the terms of this article of the Code. The references to sections of the Code of Procedure show a comprehensive system specially provided for the issuing of attachments and the recovery of damages where the same were wrongfully procured to be allowed. The subject of attachment of property is treated in title XIV, Law of Civil Procedure, War Department translation, article 1395 et seq. Unlike ordinary American procedure, an attachment is issued by order of the judge and certain grounds are recognized. They are summarized as follows: "If the debtor be a foreigner; or if, being a citizen, he has no known domicil, or does not own real estate, or does not have any place of business at which the payment of the debt may be demanded. It may also be ordered, without any such attendant condition, if he has disappeared from his home or place of business, leaving no one in charge, or if he conceals himself, or if there be reasonable grounds for believing that he will conceal or undersell his property to the prejudice of creditors." Art. 1398. If it shall turn out that the attachment was wrongfully procured, ample provisions are made for the adjudication and recovery of damages in the action. See articles 1409-1415, which are set forth in the margin.1

1ART. 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

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