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2.3

THE

CODE OF CIVIL PROCEDURE

OF THE

CANAL ZONE.

No. v^fO PAIGE cv>£

,4-.

WASHINGTON:

GOVERNMENT PRINTING OFFICE.

1907.

-

EXECUTIVE ORDER. — Under authority vested in me by law, it is Ordered, That the within Code of Civil Procedure shall be in force

within the Canal Zone on and after May 1, 1907.

Theodore Roosevelt.

The White House,

March 22, 1907.

in

\

TABLE OF CONTENTS.

Title : The Code of Civil Procedure of the Canal Zone.

Sections. Chapter 1. General and preliminary provisions 1 to 12 Chapter 2. Lawyers, their qualifications and duties 13 36 Chapter 3. Prescription ; time of commencing action 37 49 Chapter 4. Procedure in district courts 50 81 Procedure in Circuit Courts in Actions.

Chapter 5. Pleadings 82 106 Chapter G. Parties to actions 107 115 Chapter 7. Various proceedings in circuit courts 116 145 Chapters. Abatement 146 172 Chapter 9. Special remedies : Injunctions, receivers, partition of

real estate, usurpation of office or franchise, certiorari proceedings, mandate, prohibition, contempt, eminent domain, foreclo- sure, manual delivery of personal property.

Injunctions 173 183 Receivers 184 191

Partition of real estate 192 207 Usurpation of office or franchise 20S 227

Certiorari proceedings 228 232 Mandate 233 230

Prohibition 237 241 Contempt 242 251

Foreclosure of mortgage 252 259 Manual delivery of personal property 260 270 Chapter 10. To establish titles to real property 271 280 Chapter 11. Ne exeat 281 290 Chapter 12. Rules of evidence, affidavits, and depositions, per- petuation of testimony

Rules of evidence 291 363

Affidavits and depositions 364 368

Depositions 369 392 Chapter 13. Venue of actions 393 Chapter 14. Proceedings when judge is disqualified or disabled 394 395 Chapter 15. Witnesses 396 398 Chapter 16. Duties of the clerk of the Circuit Court 399 403 Chapter 17. Process

Preliminary process 404 . 416 Chapter 18. Subpoenas, and compelling attendance of witnesses 417 426 Chapter 19. Arrest of defendant 427 439 Chapter 20. Attachment of defendant's property 440 458 Chapter 21. Manner of giving and entering judgment 459 464 Chapter 22. Execution 465 512

v
VI TABLE OF CONTENTS.

Sections. Chapter 23. Proceedings supplementary to the execution 513 to 525 Chapter 24. Costs in the several courts 526 532 Chapter 25. Proceedings in Supreme Court

General procedure of the Supreme Court and procedure on

bills of exception 533 549 Chapter 26. Proceedings of Supreme Court in the exercise of its original jurisdiction 550 556 Chapter 27. The clerk of the Supreme Court and his duties 557 558 Chapter 28. Special proceedings:

Power of judge or court in special proceedings 559 Chapter 29. Proceedings in habeas corpus 560 585 Chapter 30. Guardians, their appointment, duties, powers, and

accounts

Guardians of minors 586 593 Guardians of persons of unsound mind 594 617 Chapter 31. Trusts, trustees, and proceedings in relation thereto: Trusts and trustees 618 631 Chapter 32. Estates of deceased persons

Settlement of estates without legal proceedings 632 633 Chapter 33. Jurisdiction over estates of deceased persons 634 648 Chapter 34. Wills and the allowance thereof, and duties of executors * 649 683 Death, removal, etc., of executor or administrator 684 698 Chapter 35. General duties of executors and administrators 699 702

Inventory, appraisal, and account 703 720 Chapter 36. Claims against estates, how allowed 721. 732 Chapter 37. Suits by and against executor and administrator 733 737 Chapter 38. Property embezzled or secreted, or fraudulently con- veyed 1 738 742 Chapter 39. Sale of estate 743 755 Chapter 40. From what estate debts to be paid 756 762 Chapter 41. Payment of debts 763 774 Contingent claims 775 778 Chapter 42. Escheats 779 781 Chapter 43. Distribution of estate 782 793 Chapter 44. Adoption and custody of minors 794 801 Chapter 45. Appeals in special proceedings 802 807 Chapter 46. Forms and fees ' 808 Fees 809 819 Chapter 47. Final provisions 820 821
THE CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

Chapter I. GENERAL AND PRELIMINARY PROVISIONS. Section 1. Interpretation of words.—In the interpretation of this

Code, unless the context shows that another sense was intended, the

word " person " includes a private corporation ; " writing " includes

printing; " oath " includes affirmation or other solemn declaration in

such form as the court shall find to be obligatory upon the conscience

of the witness ; " of unsound mind " includes every species of mental

deficiency or derangement ; " bond " includes an undertaking or recognizance ; " and " may be read " or ", and " or " read " and ", if the sense requires it ; " writ " signifies an order or precept in writing

issued in the name of the Government, or of a court or judicial officer, and the word " process " a writ or summons issued in the course of

judicial proceedings; and "action" means an ordinary suit in a court of justice, by which one party prosecutes another for the en- forcement or protection of a right, or the redress or prevention of a wrong ; every other remedy furnished by law is a special proceeding

" pleadings " are the formal allegations by the parties of their respective claims and defenses, for the judgment of the court; words in

the present tense include the future tense, and in the masculine gender

include the feminine and neuter genders; and words in the plural

include the singular, and in the singular include the plural number;

the term " dollars " means the money of the United States. The phrase " territory of the United States ", or " territories of the

United States ", includes any body politic and any territorial posses- sion under the jurisdiction of the United States. The word " surety " or " sureties," when occurring in this Code,

shall include any surety company authorized to do business under the

laws of the Canal Zone, and the single bond of such surety company

shall in all cases be deemed sufficient. " District judge " shall mean any judge appointed for any of the

existing administrative districts, under whatsoever title known.

But this enumeration shall not be construed to require a strict fonstruction of other general words.

3
4 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

Sec. 2. Construction of Code.—The provisions of this Code, and

the proceedings under it, shall be liberally construed, in order to pro- mote its object and assist the parties in obtaining speedy justice.

Sec 3. Powers of deputies.—The duty enjoined by statute upon a

ministerial officer, and an act permitted to be done by him, may be

performed by his lawful deputy.

Sec. 4. How time computed.—Unless otherwise specially provided,

the time within which an act is required by law to be done shall be

computed by excluding the first day and including the last; and if the last be Sunday or a legal holiday it shall be excluded.

Sec. 5. Provisions concerning process.—Process shall be under the

seal of the court from which it issues, be styled " The United States of America, Canal Zone, ss : " to be signed by the clerk and bear date

the day it actually issues. Sec. 6. Rules of Court.—The judges of the Supreme Court shall prepare rules regulating the conduct of business in the Supreme

Court and in the Circuit Courts. The rules shall be uniform for all Circuit Courts throughout the Canal Zone. Such rules, when duly

made and promulgated and not in conflict with the laws of the United

States or the Canal Zone, shall be binding and must be observed, but no judgment shall be reversed by reason of a failure of the court to comply with such rules unless the substantial rights of a party have

been impaired by such failure.

Sec. 7. Stamped paper.—Stamped paper is not required for use

in proceedings in any court. But, for uniformity and convenience

of folding and filing papers, the rules of court may prescribe the

size and form of sheets of paper to be used for all written and printed

documents in legal proceedings.

Sec. 8. Disqualification of judges.—No judge, magistrate, referee, or presiding officer of any tribunal shall sit in any case or proceeding

in which he is pecuniarily interested, or related to either party within

the sixth degree of consanguinity or affinity, computed according to the rules of the civil law, nor in which nor in the matter out of

which the litigation arises he has been a counsel, nor in which he has

presided in any inferior judicature when his ruling or decision is the

subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.

No challenge as to the competency of any of the officials named in

this section shall be received or allowed; but if it be claimed that

the official is disqualified by the provisions of this section, the party

objecting to his competency may, in writing, file with the official his

objection, stating the grounds therefor, and the official shall thereupon proceed with the trial, or withdraw therefrom, in accordance

with his determination of the question of his disqualification. His

decision shall be forthwith made in writing and filed with the other
CODE OF CIVIL, PROCEDURE OF THE CANAL ZONE. 5

papers in the case, but no appeal or stay of action shall be allowed

from, or by reason of, his decision in favor of his own competency,

until after final judgment in his court. Sec. 9. Civil liability of judges.-—No judge, shall be liable to a civil action for the recovery of damages by reason of any judicial action or judgment rendered by him in good faith, and within the limits

of his legal powers and jurisdiction. Sec. 10. Publicity of proceedings and records.—The sitting of

every court of justice shall be public, but any court may, in its dis- cretion, exclude the public when the testimony to be adduced is of

so indecent a nature as to require such exclusion in the interests of

morality. The records of every court of justice shall be public

records and available for the inspection of any party in interest, at

all proper business hours, under the supervision of the clerk having

the custody of such records.

Sec 11. Incidental powers of courts.—Every court shall have

power

1. To preserve and enforce order in its immediate presence;

2. To enforce order in proceedings before it, or before a person or persons empowered to conduct a judicial investigation under its authority

3. To compel obedience to its judgments, orders, and process, and

to the lawful orders of a judge out of court in a pending action or proceeding

4. To control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with

a judicial proceeding before it, in every matter appertaining thereto;

5. To compel the attendance of persons to testify in an action or proceeding pending therein;

6. To administer or cause to be administered oaths in an action or proceeding pending therein, and in all other cases where in the exercise of its powers it may be necessary

7. To amend and control its process and orders so as to make them

conformable to law and justice;

8. To appoint a clerk temporarily should there be a vacancy in said

office or should the clerk for any cause be unable to attend to his

duties.

Sec 12. Official language.—The official language of all courts and

their records shall be the English language. But the Supreme Court,

or any Circuit Court, may order a duplicate record in the Spanish

language to be made and duly enrolled in any action or proceeding,

whenever the court shall determine that such duplicate record would

promote the public convenience and the interests of the. parties.

Provided, That any party or his counsel may examine or cross- examine witnesses, or make an oral argument in Spanish, the same
6 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

to be clearly interpreted into English by a court interpreter; and a party or his counsel may submit a written or printed pleading or

brief in Spanish, if at the same time he accompany it by a correct English translation.

Chapter II. LAWYERS, THEIR QUALIFICATIONS AND DUTIES. Sec 13. Who may practice as lawyers.—The following persons, if not specially declared ineligible, are entitled to practice law in

the courts of the Canal Zone. All attorneys at law who were per- mitted to practice their profession within the territory of which

the Canal Zone is constituted on or before the 23rd day of February, 1904, will be entitled to practice before the Canal Zone courts upon presenting evidence of this fact. Sec 14. Qualification of applicants.—Other persons who desire to be admitted to the practice, will appear before the Supreme Court,

producing a certificate of good moral character, and be examined

touching their qualifications to practice law. The subjects upon

which they are examined will be Real Estate, Personal Property,

Equity, Pleading, Contracts, Administrators and Executors, Criminal Law, and the Codes in force in the Canal Zone.

If in the opinion of the court they exhibit a sufficient acquaintance

with the subjects upon which examined to enable them to practice

their profession with efficiency a license to so practice will be issued

to them.

Sec 15. Study of law.—The Supreme Court by rule may require

that applicants shall have regularly and attentively studied law for a

fixed period before taking the examination, and may specify the

kind of evidence necessary to establish the fact. Sec 16. Place and manner of examinations.—Such examinations

shall be conducted by the judges of the Supreme Court or by a committee of competent lawyers by them to be appointed, and shall be

held at such times as the judges of that court shall provide by

general or special rules. Sec 17. Admission.—If upon examination, the candidate is found

qualified, the Supreme Court shall admit him as a member of the bar

for all the Courts of the Canal Zone, and shall direct an order to be

entered to that effect upon its records, and a certificate of such record

to be given to him by the clerk of the court, which certificate shall be his license. Sec 18. Oaths.—Before receiving a certificate the applicant shall

take and subscribe in court the following oath:

1. "I, recognize and accept the supreme authority of

the United States of America, in the Canal Zone, and I do swear that
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. i

I will obey the existing- laws which rule in the Canal Zone, as well

as the legal orders and decrees of the duly constituted authorities

therein ; that I impose upon myself this voluntary obligation without

any mental reservation or purpose of evasion. So help me God.

2. " I do solemnly swear that I will do no fasehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or

sue any false, groundless or unlawful suit, nor give aid nor consent

to the same; I will delay no man for money or malice, but will con- duct myself in the office of a lawyer w

r ithin the courts according to the best of my knowledge and discretion, with all good fidelity as

well to the courts as to my clients. So help me God."

These oaths may be taken before any judge of the Supreme Court,

and a certificate that the oath has been taken shall be set forth in the

license. Sec 19. Admission from other jurisdictions.—Every resident of

the Isthmus of Panama, not a citizen or subject of any foreign government, who has been admitted to practice law in the Supreme Court

of the United States, or in any circuit court of appeals, circuit or

district court therein, or in the highest court of any State or Territory

of the United States, may be admitted to practice in the courts of the

Canal Zone upon the production of his license and satisfactory evi- dence that such license has not been revoked and that the applicant

is of good moral character and professional standing. But the

judges of the Supreme Court may, by general rules, provide that an

applicant for admission under this section shall satisfactorily pass an examination upon the codes of law, and procedure in force in the

Canal Zone.

The applicant under this section shall take the oath above provided

before receiving his license. Sec. 20. Lawyer's roll.—The clerk of the Supreme Court shall keep a roll of all the lawyers admitted to practice in the court, which

roll shall be signed by the person admitted before he receives his

license. Sec 21. Disbarments.—A member of the bar may be removed or suspended from his office as lawyer by the Supreme Court for any

deceit, malpractice or other gross misconduct in such office, or by

reason of his conviction of a crime involving moral turpitude or

for any violation of either of the oaths aforesaid, or for the willful

disobedience of any lawful order of the Supreme Court or Circuit

Courts, or for corruptly or willfully appearing as a lawyer for a party to an action or proceeding without authority so to do. Sec. 22. Suspension of lawyers.—Circuit Courts may suspend a lawyer from the further practice of his profession for unprofessional

conduct in any case, or for conduct in the presence of the Court calculated to bring the administration of justice into derision or contempt.

Should such suspension occur in the trial of a case, the party to said
8 CODE OF CIVIL PROCEDURE OF THE CANAL ZONK.

action, represented b}*' the lawyer so suspended, shall be entitled to have said case continued until such suspension is removed, or until

such time as he may be reasonably able to secure another lawyer, and

shall have the right on such new hearing to have the case tried de

novo. After such suspension such lawyer will not be privileged to practice his profession in any of the courts of the Canal Zone until

further action of the Supreme Court in the premises.

Sec. 23. Proceedings upon suspension.—Upon such suspension, the

judge of the Circuit Court ordering the suspension shall forthwith

transmit to the Supreme Court a certified copy of the order of sus- pension and a full statement of the facts upon which the same was

based. Upon receipt of such certified copy and statement, the

Supreme Court shall make full investigation of the facts involved

and make such order revoking or extending the suspension, or removing the lawyer permanently from the roll, as it shall find the facts

to warrant.

Sec 24. Institution and costs of disbarment proceedings.—Proceedings for the removal or suspension of a lawyer may be taken by

the court of its own motion, or upon the complaint of another in

writing. It shall be the duty of the Prosecuting Attorney for the

Canal Zone to appear for the Government in all such proceedings in

the Supreme Court and to conduct prosecutions. The costs of the

prosecution of such proceedings shall be paid by the Government.

Sec. 25. Hearing of charges.—No lawyer shall be removed from

the roll or be suspended from the performance of his profession until

he has had full opportunity to answer the charges against him, and

to produce witnesses in his own behalf and to be heard by himself

and counsel, if he so desires, upon reasonable notice. But if upon

reasonable notice the accused fails to appear and answer the accusation, the court may proceed to determine the matter ex parte.

Sec 2G. Authority to appear.—No written power of attorney shall be required to authorize a duly enrolled lawyer to appear in court

for hi^ client, but the presiding judge may, on motion of either party,

and on reasonable grounds therefor being shown, require any lawyer

who assumes the right to appear in an action or proceeding to pro- duce or prove the authority under which he appears, and to disclose,

whenever pertinent to any issue, the name of the person who employed him, and may make any order that justice may require on

such investigation; but, prima facie, lawyers shall be held properly

authorized to represent any causes they may appear in. Sec 27. Authority to bind their clients.—Lawyers have authority

to bind their clients in any action or proceeding by any agreement

in relation to the cause made in writing, in entering appeals, and

in all matters of ordinary judicial procedure. But they can not, with-
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 9

out special authority, compromise their client's litigation, or receive

anything in discharge of a client's claim but the full amount in

cash. Sec. 28. Unauthorized appearances; contempt.—A lawyer willfully appearing in court for a person without being employed, unless

by leave of the court, is guilty of contempt of court, and may be

fined a sum of not less than one hundred dollars and not more than

one thousand dollars by the court in which such unauthorized appearance has been entered.

Sec. 29. Lawyers' fees.—A lawyer shall be entitled to have and

recover from his client no more than a reasonable compensation for

the services rendered, having in view the importance of the subject-matter of the controversy, the extent of the services rendered,

and the professional standing of the lawyer. But in such cases the court shall not be bound by the opinion of lawyers as expert witnesses as to the proper compensation, but may disregard such testi- mony and base its conclusion on its own professional knowledge. A

written contract for services shall control the amount of recovery

if found by the court not to be unconscionable or unreasonable.

Sec. 30. Retention, of client's funds.—When a lawyer unjustly

retains in his hands money of his clients after it has been demanded,

he may be dealt with as for contempt of court, and may, after due

hearing, be imprisoned until he pays over his client's moneys ascer- tained to be unlawfully in his hands, for a period not exceeding

six months in all. But proceedings under this section shall not be a bar to a criminal prosecution for embezzlement.

Sec. 31. Inviolability of communications of clients.—A lawyer

must strictly maintain inviolate the confidence and preserve the

secrets of his client. He shall not be permitted in any court, without

the consent of his client, given in open court, to testify to any facts

imparted to him by his client in professional consultation, or for the

purpose of obtaining advice upon legal matters. Sec. 32. Change of lawyers.—A lawyer may retire at any time

from any action or special proceeding, by the written consent of his

client filed in court, and a client may at any time dismiss his lawyer

or substitute another in his place. A lawyer may also retire at any

time from an action or special proceeding, without the consent of his

client, should the court, on notice to the client and lawyer, and on

hearing, determine that he ought to be allowed to retire. In case of

such substitution, the name of the lawyer newly employed shall be

entered on the docket of the court in place of the former one, and

written notice of the change shall be given to the adverse party.

Sec. 33. Employment of lawyers not required.—Any party may

conduct his litigation in a court of a district judge, in person or with the aid of an agent or friend appointed by him for that pur-
10 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

pose, or with the aid of a lawyer; in any other court a party may

conduct his litigation personally or by the aid of a lawyer, and his

appearance must be either personal or by the aid of a duly authorized

member of the bar. Sec. 34. Lawyers for destitute litigants.—The Supreme Court and

Circuit Courts may, in their discretion, assign any lawyer to render

professional aid to a party, in pending action, free of charge, if such court, upon full investigation shall find that the party is destitute and unable to employ a lawyer and that the services of counsel are necessary to secure the ends of justice and to protect the rights

of the party. Upon such assignment, it shall be the duty of the

lawyer assigned to render the required services, unless he shall be

excused therefrom b}' the court for sufficient cause shown.

Sec. 35. Judges as lawyers.—No judge of the Supreme Court or

Circuit Court, or clerk of court nor the prosecuting attorney or as- sistant prosecuting attorney shall be allowed to act as a lawyer or to give professional advice to clients while holding office. Sec. 36. Lawyers'1 liens.—A lawyer shall have a lien upon all the

funds and papers and documents of his client which may lawfully

have come into his possession, and may retain the same until his

lawful fees and disbursements due to him from his client have been

paid, and may apply such funds to the satisfaction thereof. He shall also have a lien to the same extent upon all judgments and decrees

for the payment of money, and executions issued in pursuance of

such judgments and decrees which he has secured in a litigation of

his client, from and after, but not before, the time when he shall have caused a statement of his claim of such lien to be entered upon

the records of the court rendering such judgment or decree, or issuing

such execution, and shall have caused written notice thereof to be

delivered to the adverse party, and shall have the same right and

power over such judgments, decrees, and executions to enforce his

lien as his client had or may have, to the extent that may be neces- sary for the payment of his just fees and disbursements.

Chapter III.

PRESCRIPTION ; TIME OF COMMENCING ACTION.

Sec. 37. To what this chapter does not apply.—This chapter shall not apply to actions already commenced, or to cases wherein the right

of action has already accrued; but the statutes in force when the

action or right of action accrued shall be applicable to such cases according to the subject of the action and without regard to the

form; nor shall this chapter apply in the case of a continuing and
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 11

subsisting trust, nor to an action by the vendee of real property

in possession thereof to obtain the conveyance of it. Sec 38. Special limitations excepted.—Civil actions can only be

commenced within the periods prescribed in this chapter after the cause of action accrues; but where a different limitation is pre- scribed by this Code, that shall govern.

Sec 39. Period of prescription as to real estate.—Except in the

case of the Government of the United States or the Canal Zone an

action for recovery of title to, or possession of, real property, or an

interest therein, can only be brought within ten years after the cause of such action accrues. Sec 40. Title to land by prescription.—Ten years' actual adverse

possession by any person claiming to be the owner for that time of

any land or interest in land, uninterruptedly continued for ten years

by occupancy, descent, grants, or otherwise, in whatever way such

occupancy may have commenced or continued, except in the case of

public lands, shall vest in every actual occupant or possessor of such

land a full and complete title, saving to the persons under disabilities the. rights secured by the next section. In order to constitute such

title by prescription or adverse possession, the possession by the

claimant or by the person under or through whom he claims must

have been actual, open, public, continuous, under a claim of title exclusive of any other right and adverse to all other claimants. But

failure to occupy or cultivate land solely by reason of war shall not

be deemed to constitute an interruption of possession of the claimant,

and his title by prescription shall be complete, if in other respects

perfect, notwithstanding such failure to occupy or cultivate the land

during the continuance of war. Sec 41. Exceptions in favor of persons under disability.—If a per- son entitled to bring the action mentioned in the preceding sections

in this chapter is, at the time the cause of action accrues, within the

age of minority, of unsound mind or in prison, such person may, after

the expiration of ten years from the time the cause of action accrues, bring such action within three years after such disability is re- moved.

Sec 42. Other civil actions; how limited.—Civil actions other than

for the recovery of real property can only be brought within the fol- lowing periods after the right of action accrues:

1. Within ten years: An action upon an agreement, contract, or promise in writing, or upon the judgment or decree of a court;

2. Within five years : An action upon a contract not in writing,

whether such contract is expressed or implied, and an action upon a

liability created by a statute other than a forfeiture or penalty

3. Within two years: All actions for an injury to or trespass upon

real estate; for the recovery of personal property; for the recovery
12 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

of damages for taking, retaining or injuring personal property;

for an injury to the rights of the plaintiff not arising on contract and not hereinafter enumerated; for relief on the ground of fraud;

shall be commenced within two years next after the cause of action

accrued, except that in action for relief on the ground of fraud, the

right of action in such cause shall not be deemed to have accrued

until the discoveiy of the fraud.

4. Within one year: Action for injury to the person; action for

libel or slander; for assault, battery, malicious prosecution or false imprisonment, or for injuries resulting therefrom; action upon a

statute for a penalty or forfeiture; shall be brought within one year

after the cause of action accrued, but where a different limitation is prescribed in the statute by which the remedy is given the action

must be brought within the period so limited. Sec. 43. For other relief.—An action for relief not herein provided

for can only be brought within ten years after the cause of action

accrues. Sec 44. Rights saved to certain persons.—If a person entitled to bring any action mentioned in either of the two last preceding sec- tions is, at the time the cause of action accrues, within the age of

minorit}', of unsound mind, or in prison, such person may bring such

action within two years after the disability is removed unless the

right of action is one of those named in subdivision four of section

forty-two, in which case it may be brought within one j-ear after such

disabilky is removed.

Sec 45. When action deemed commenced.—An action shall be

deemed commenced within the meaning of this chapter, as to each

defendant, at the date of the filing of the complaint in court, but if an additional defendant is made after the commencement of the

action, the action shall be deemed commenced within the meaning of

this chapter, as to such defendant, at the date of the summons which

is served on him.

Sec 46. As to absent persons.—If, when a cause of action accrues against a person, he is out of the Canal Zone, or has absconded or concealed himself, and has not known or visible property within the

Canal Zone, the period limited for the commencement of the action

shall not begin to run until he comes into the Canal Zone or while he

is so absconded or concealed, or until he has known or visible property within the Zone; and if, after the cause of action accrues, he

departs from the Canal Zone, or absconds or conceals himself, the

time of his absence or concealment shall not be computed as any part

of the period within which time the cause of action should be

brought.

Sec 47. //' bailed at place where cause of action arose, barred
CODE OF CIVIL PROCEDURE OP THE CANAL ZONE. 13

fore.—If, by the laws of the state or country where the cause of

action arose, the action is barred, it is also barred in the Canal Zone.

Sec. 48. Saving in other cases.—If, in an action commenced, or attempted to be commenced, in due time, a judgment for the plaintiff

be reversed, or if the plaintiff fail otherwise than upon the merits,

and the time limited for the commencement of such action has, at the

date of such reversal or failure, expired, the plaintiff, or, if he die

and the cause of action survive, his representatives may commence a new action within one year after such date, and this provision shall apply to any claim asserted in any pleading by a defendant.

Sec. 49. What shall renew right of action.—When payment has

been made upon any demand founded upon contract, or a written

acknowledgment thereof or a promise to pay the same has been made

and signed by the party sought to be charged, an action may be

brought thereon within the time herein limited, after such payment,

acknowledgment, or promise.

Chapter IV.

PROCEDURE IN DISTRICT COURTS.

Sec. 50. Summons.—Every action before a district judge, ex- cept as otherwise provided, shall be commenced by summons, which

shall be in the following form, as nearly as the case will admit, viz

" United States or America,

" Canal Zone, ss:

" The Government of the Canal Zone, to any marshal of said

Canal Zone, greeting:

" You are hereby commanded to summon A. B. to appear before

me at on the day of at o'clock — M,

to answer the complaint of C. D. for a failure to pay him a certain

demand, not exceeding one hundred dollars, and hereof make due

return, as the law directs.

" Given under my hand this day of 19__.

"District Judge."

In which summons the district judge shall specif}7 a certain

place, day and hour which shall be between the hours of eight o'clock

a. m. and 4 o'clock p. m. for the trial, not less than five nor more

than fifteen days from the date of such summons, at which time and

place the defendant is to appear. Every summons shall be served

at least three days before the time of trial mentioned therein, by

reading the same to the defendant.

Sec. 51. The complai?it.—The complaint shall state the name and

residence of the plaintiff and that of the defendant, the substance

of the claim made, the grounds of action, the amount sought to be

recovered, and the date when the claim is presented to the court. 803a—07—m 2*
1 4 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

Sec. 52. Nonsuit.—If the plaintiff does not appear at the time and

place designated in the summons, the judge may dismiss the action

for failure to prosecute, and render judgment for the defendant to recover his lawful costs. But such dismissal without hearing shall

not be a bar to a subsequent action for the same cause. Sec 53. Default.—If the defendant does not appear at the time

and place designated in the summons, judgment may be rendered

against him by default, and the court shall thereupon proceed to hear the testimony of the plaintiff and his witnesses as to the amount

which the plaintiff is entitled to recover, and shall render judgment

for the plaintiff to recover of the defendant such sum as he finds

established by the evidence to be justly due with lawful costs; but

in all actions for the recovery of money under a contract, express or

implied, where the cause of action is set forth in a complaint verified

by the plaintiff, judgment by default for the amount sued for may

be entered without taking the testimony of the plaintiff and his

witnesses.

Sec 54. Vacating nonsuits and defaults.—Within two hours after

the entry of a nonsuit or default as provided in the last two preceding sections, the court may strike off the entry of nonsuit or default

and allow the party nonsuited or defaulted to have a trial upon the

merits of the cause, if such party shall appear and make it manifest

to the court that his failure to appear at the time designated occurred

by reason of fraud, accident, or mistake.

Sec 55. Trial.—The defendant may interpose any lawful defense,

including a counterclaim or plea in offset, for any sum not exceeding

the jurisdictional limit of a district court, verbally, without written

pleadings. The plaintiff may make an opening statement by himself,

his agent or counsel, if he so desires, explaining the character of his

claim, and the defendant, personally or by his agent or counsel, may

make a like opening statement, if he so desires, explaining the character of his defense or counterclaim. Upon the conclusion of the opening statement, the court shall hear the testimony of the plaintiff and

his witnesses ; afterwards, the testimony of the defendant and his witnesses, all under the sanction of an oath. Upon the conclusion of

the testimony in behalf of the defendant, the plaintiff may offer re- butting testimony. When the testimony has been closed, the defendant or his agent or counsel shall be heard in argument, if he so

desires, and upon the conclusion of his argument the plaintiff or his

agent or counsel shall be heard, if he so desires. Sec 56. Testimony.—All testimony, except documentary, shall be

given orally in court, at the time of trial, unless the written tes- timony of witnesses shall have previously been taken in accordance

with general law upon that subject and produced at the trial in the

form of depositions.
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 15

Sec. 57. Adjournment.—District courts shall have power to adjourn the hearing of an action from day to day as the interests of

justice may require, but shall not have the power to adjourn hearings

for a longer period than one week for each adjournment, nor for more than three months in all. Sec. 58. Power to punish for contempt of court.—District judges

may summarily impose a fine not exceeding five dollars, or sentence

to imprisonment for a period not exceeding one day, or impose both

of such punishments, upon a person guilty of misbehavior in the

presence of or so near the district judge as to obstruct him in the

performance of his judicial duties.

Sec. 59. Judgments.—At the conclusion of the trial, the judge shall

render judgment for the plaintiff to recover such sum as he finds to be justly his due, with costs; or for the defendant to recover his

costs, as the law and evidence may warrant. If there is a counter- claim or plea in offset the judge shall render judgment for the sum

found in arrear from either party, with costs. But he may adjourn

the disposition of the case to a stated day, not exceeding one week

from the time of the conclusion of the trial, for the consideration

of judgment, if he require time for consideration. Sec. 60. Form of judgment.—The entry of judgment need not state the facts or conclusions arrived at by the judge, but shall be substantially in the following form only

" Judgment for the plaintiff to recover dollars damages

and costs of the action ; " or

" Judgment for the defendant to recover his costs," if he shall not

be entitled to anything on a counterclaim ; or, " Judgment for the

defendant to recover dollars and his costs," if he shall have

established a counterclaim in excess of the demand established by the

plaintiff. » Sec. 61. Witnesses may be subpoenaed.—At the instance of either

party the judge may at any time after the commencement of the

action issue a subpoena directed to any witness whose testimony may

be desired, requiring his attendance as a witness at a time and place

therein specified, which subpoena shall be served upon the witness

in the same manner as has been above provided for the service of a summons to the defendant, and his lawful fees as a witness shall,

if he require it, be then tendered to him. If the witness fails to appear at the time and place specified in the subpoena, the judge may

issue a warrant upon which he may be seized and brought before

the judge and compelled to testify, and the costs of such warrant

and seizure of the witness shall be paid by the witness if the judge

shall determine that his failure to answer the subpoena was willful or without excuse. Sec. 62. Dockets.—Every district judge shall keep a well-bound
16 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

book, styled " Docket," upon each page of which shall be room for

entries as to two actions, entries as to one to occupy the upper half of

the page, and, as to the other, the lower half. Upon it he shall enter the names of the plaintiff and defendant in any suit brought

before him; the time of issuing process, and when returnable; the

appearance or default of the person summoned to appear ; the names

of the witnesses sworn; the date and amount of the judgment; the

date of issuing execution, when one is issued, and a copy of the return thereon; the appeal, when and by whom demanded, and,

briefly, all the proceedings before him touching the suit. Sec 63. Entry to identify docket.—Each district judge shall, at the beginning and in front of all his entries in his docket, make

and subscribe substantially the following entry, to wit

" A docket of proceedings in matters civil and criminal before

district judge of the administrative district of

Canal Zone.

" Witness my signature,

District Judge.'''1 Sec. 64. Final disposition of dockets.—Every district judge

whose term of office shall expire, or who shall resign, remove from

the Zone, or otherwise go out of office and the legal representative

of every district judge who shall die, shall, within ten days

thereafter, deliver his docket, with all process and papers and books

relating to his office, to the clerk of the Circuit Court of the judicial

circuit of the district; and if any district judge shall refuse

or neglect to deliver such docket, process, papers and books, to said

clerk as required, or, in case of his death, should his legal representative fail so to do, he or they shall be guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding five hundred dollars, or by imprisonment for not more than six months,

or by both. Said clerk shall keep in his office such docket, process, papers, and books as public records, and shall certify copies thereof,

while kept by him, whenever lawfully demanded. While such docket,

process, papers, and books are in the custody of the clerk, if there

shall be on such docket any judgment unexecuted, the clerk may issue

execution upon such judgment, and the execution so issued shall have

the same effect as if issued by the judge who rendered the judgment.

Sec 65 Execution.—If no appeal from a judgment of a district judge shall be perfected as herein provided, the district judge

shall, at the request of the successful party, issue an execution for

the enforcement of the judgment, at the expiration of the time

limited by law for the perfection of an appeal.

Sec 66. When judge is disqualified.—When a judge is disqualified

from presiding, or where there is no judge in the district where
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 17

the action is to be brought, or there is one and he refuses to serve, generally or in any particular case, and there is no auxiliary judge

in the district competent and able to sit, any district judge of

the Zone shall be authorized to issue all process and to preside in the

particular case and in the administrative district in which the action

shall be brought,

Sec. 67. Appeals.—Either party to an action before a district judge may appeal from the judgment of the judge to the next regular

stated term of the Circuit Court to be held within the circuit in which

the judgment was rendered in the manner herein provided.

Sec. 68. Effect of appeals.—A perfected appeal shall operate to vacate the judgment of the district judge, and the action when duly

entered in the Circuit Court shall stand for trial de novo upon its merits in accordance with the regular procedure in that court, as though the same had never been tried and had been originally there

commenced.

Sec. 69. Appeals, how perfected.—Within five days after the rendition of a judgment by a district judge, the party desiring to appeal may file with the judge a written statement that he appeals

to the Circuit Court, and shall, within said period of five days, give a bond with sufficient surety to be approved by said judge, payable

to the opposite party, in the penal sum of one hundred dollars, con- ditioned for the payment of all such costs in the action as finally may

be awarded against him. The filing of such statement and giving of

such bond shall perfect the appeal.

Sec. 70. 'Copy of record to be transmitted.—The district judge,

upon the perfection of the appeal, shall prepare and certify his

record to the following effect namely

" Copy of the record of the proceedings before the

district judge of the district of in the Canal

Zone, in the case herein set forth, to wit: (Here copy the entries on

the docket and certify as follows, namely:)

" Canal Zone, District of , I, district judge of the said district, certify that the foregoing is a copy of the

record and proceedings before me in the case stated therein as appears on my docket.

" Given under my hand this day of , A. D. 19__.

" District Judge."

Sec. 71. Papers to be delivered to clerk of Circuit Court.—The

district judge from whose decision an appeal shall be taken shall, on or before the first day of the next term of the Circuit Court for

the circuit in which the same is returnable, transmit to the clerk of

that court a certified copy of the record of proceedings, with all the

original papers and process in the case, and the original appeal bond
18 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

given by the appellant, or if money bond was taken said money, and

the clerk shall docket the same in the Circuit Court, and shall be

entitled to the same fees, upon such appeals, as for similar services

in suits originating in said court. The district judge shall at all times be allowed, and, in the interest of justice, may be required, by

the Circuit Court, to amend his return according to the facts. Sec. 72. Settlement of appeal cases.—At any time after the perfection of an appeal from a judgment of a district judge and be- fore the papers have been transmitted to the clerk of the Circuit

Court to which the action is appealed, the parties may adjust the

controversy by agreement in writing, signed by both parties and

lodged with the judge, who shall enter the same upon his docket, and

no further proceeding shall thereafter be taken in the action. But

if the appeal papers have already been transmitted to the clerk of

the Circuit Court, then the judge shall immediately transmit the

compromise agreement to the clerk of the Circuit Court, who shall

file the same and enter a memorandum thereof upon his docket, and

no further proceedings shall thereafter be taken in the action.

Sec 73. Forcible entry into and detainer of land or buildings.—

Anyone deprived of the possession of land, or a building, by force,

intimidation, fraud, strategy, or stealth, and any landlord, vendor,

vendee, or other person, against whom the possession of land or a building is unlawfully withheld, by his tenant, vendee, vendor, or other

person, after the expiration of his right by contract express or implied,

to hold possession, and the legal representatives or assigns of him

who is so deprived of possession, or from whom possession is so withheld, as against him who so obtains possession or withholds posses- sion after the expiration of his rights, and all persons claiming to hold under him, shall, at any time within one year after such deprivation or unlawful withholding of possession be entitled to restitu- tion of possession, and to damages, in a district court, in the manner hereinafter prescribed. The owner of land, or of a building,

occupied by a tenant, may likewise obtain restitution or possession of

the premises, and recover rents due and damages, in the manner next

hereinafter provided, when the tenant for ten days after due demand

for payment of rent due for the occupancy of the premises shall

have refused or neglected to make payment of the same.

Sec. 74. The complaint.—The party turned out of possession, or held out of possession, may institute an action before any district judge of the district in which the land or building, or some part

thereof, is situated, to recover possession thereof and damages. The

complaint shall be substantially in the following form : . " The plaintiff (naming him) complains that the defendant (naming him) has unlawfully turned him out of possession (or unlawfully

withholds from him the possession, as the case may be) of certain
CODE OF CIVIL PROCEDURE OP THE CANAL ZONE. 19

lands and building (here describe the premises) lying and being

within said district, whereof he prays the possession, and he also prays for just damages and costs. "(The plaintiff naming him.)"

The complaint shall be verified by the oath of the plaintiff, or his

agent or attorney, and certified by the district judge before whom

the action is instituted. Process shall issue to and be served upon

the defendant, as in other actions before a district judge.

Sec. 75. Trial.—The action shall be tried in the same manner as other actions before a district judge.

Sec 76. Continuance, and obligation therefor.—No continuance

shall be granted for a longer period than one week, unless the defendant applying therefor shall give an obligation to the adverse

party, with good and sufficient sureties to be approved by the judge,

conditioned for the payment of rent and damages that may accrue,

if judgment be rendered against the defendant.

Sec 77. Judgment.—If, upon trial, the court shall find that the

complaint is not true, it shall enter judgment against the plaintiff

for costs. If it finds the complaint to be true, it shall render judgment

against the. defendant in favor of the plaintiff for restitution of the

premises, and costs of suit, and for all arrears of rent, or a reasonable compensation for the use and occupation of the premises.

Sec 78. The execution.—When a judgment of restitution shall be

entered by the justice, he shall, at the request of the plaintiff, his

agent or attorney, issue a writ of execution thereon, which shall be

in the following form, as near as practicable

" The Canal Zone,

"District of

" To any officer authorized to serve process in the district of

" Whereas, in a certain action for the forcible entry and detention

(or forcible detention, as the case may be) of the following-described

premises, to wit, (here describe them) lately tried before me, wherein was plaintiff and was defendant, judgment was rendered on the day of A. D. 19 , that the plaintiff

have restitution of the premises, and also that he recover damages to the amount of dollars; also that he recover costs in the sum

of dollars. You are therefore hereby commanded to cause

the defendant to forthwith remove from said premises, and that the

said plaintiff have restitution of the same; also that you levy upon

the goods and chattels of the said defendant and collect from him

the rent, damages, and costs aforesaid, and costs of this execution and

service thereof, in due form of law.

"Witness my hand this day of A. D. 19__

"District Judge.''''

But such execution shall not issue within five days from the date

of the judgment, nor if an appeal to the Circuit Court has been per-
20 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

fected by the due execution and delivery of the obligation referred

to in section eighty-one.

Sec. 79. Service of execution.—The officer shall, upon receiving the

execution, execute the same, by restoring to the plaintiff the posses- sion of the premises, and shall levy and collect the rent, damages,

and costs awarded, and make return, as upon other executions.

Sec. 80. Such judgment not conclusive in another action.—A judgment rendered in a suit of unlawful entry and detainer, either for

the plaintiff or defendant, shall not bar an action in the Circuit

Court between the same parties respecting title to the land or building; nor shall any judgment given therein be held conclusive of the

facts found in another action between the same parties.

Sec 81. Appeal.—Either party may appeal from the judgment of

the district judge to the Circuit Court and the suit shall therein

be conducted as appeals from district judges in other civil actions:

if the plaintiff recovers possession of the premises in the Circuit

Court, he shall have judgment for the amount of rents or damages

then due. If the defendant appeals from the judgment of the judge

he shall give an obligation to the plaintiff with sufficient sureties, to be approved by the judge, to enter the action in the Circuit Court,

and to pay rent then due, and intervening rent, damages, and costs; and the defendant and the sureties shall be liable upon their obligation for such rent, intervening rent, damages, and costs, down to the

time of the final judgment in the action. The appeal shall not be

allowed until such obligation has been filed with the judge, and the

obligation shall be transmitted by the judge with the other papers

to the clerk of the Circuit Court to which the action is appealed.

PROCEDURE IN CIRCUIT COURTS IN ACTIONS.

Chapter V.

PLEADINGS.

Sec 82. Pleadings.—The only pleading allowed on the part of the

plaintiff shall be

1. The complaint;

2. The demurrer to the answer

And on the part of the defendant

1. The demurrer to the complaint;

2. The answer. Sec 83. Complaint.—The complaint is a statement in a methodical

and logical form of the circumstances which constitute the plaintiff's cause of action. The complaint must contain

1. The name of the court and circuit in which the action is brought,

and the names of the parties to the action
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 21

2. A brief statement of the facts constituting the cause of action,

in ordinary and concise language without argument or unnecessary

repetition with a reference by number or page to the sections of the

several codes, if any, upon which the action is founded. If the complaint contains more than one cause of action, each distinct cause of action must be set forth in a separate paragraph containing all the facts constituting the particular cause of action;

3. A demand for the relief which the plaintiff claims.

4. Where documents are relied upon they shall accompany the

memorial or complaint. A properly authenticated copy of any

document, made by an officer in charge of the archives in which the

original is kept, may be used in evidence in lieu of the original.

5. All pleadings in the case must be written either in English or Spanish, and must be on regular legal cap paper, and written on

but one side, and always be furnished in duplicate. For convenience,

papers in the case written on typewriter are desirable, although not

obligatory.

6. All pleadings in the case shall be translated from Spanish to English if necessary by the officers of the court free of charge to those offering same.

7. All documents and exhibits of whatever character and kind

shall be furnished to the court with a translated copy, if in Spanish

or, in case they do not so furnish them, the party offering the same

shall deposit a fund sufficient to have them translated from Spanish

into English.

8. The rate of translating from Spanish to English shall be fifty cents per typewritten page of three hundred words.

9. Documents not accompanying the memorial, petition or complaint, or the answer, or the counter-claim, or some other pleading in

the cause, may be excluded by the court unless the same are offered a

sufficient length of time before the trial to have the same properly

translated, unless some sufficient reason for their non-production

earlier is given or the court admits the same for other good and

sufficient cause.

10. If the recovery of money or damages is demanded, the amount

demanded must be stated. If special relief, such as an order for the

specific restitution of property, or the specific enforcement of a writ- ten contract for the sale of property, or an injunction is sought, the

ground of demanding such relief must be stated and the special relief prayed for. But there may be added to the statement of the specific relief demanded a general prayer for such further or other relief as

shall be deemed equitable.

Sec. 84. Demurrer to the complaint.—The demurrer is an allegation that, admitting the facts of the preceding pleading to be true, as stated by the party making it, he has yet shown no cause why the
22 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

party demurring should be compelled by the court to proceed further.

It imports that the objecting party will not proceed, but will wait

the judgment of the court, whether he is bound so to do. The defendant may demur to the complaint, or to the statement of any distinct cause of action therein set forth, within the time fixed by general

rules of court for such pleadings when it appears upon the face

thereof, either

1. That the court has no jurisdiction of the person of the defendant, or the subject of the action ; or

2. That the plaintiff has not legal capacity to sue; or

3. That there is another action pending between the same parties

for the same cause ; or

4. That there is a defect or misjoinder of parties, plaintiff or defendant ; or

5. That the complaint is ambiguous, unintelligible, or uncertain ; or

6. That reference to the section of the Code upon which the plaintiff relies to sustain his action has not been made ; or

7. That the complaint does not state facts sufficient to constitute a cause of action.

The demurrer must distinctly specify the grounds upon which any

of the objections to the complaint, or to any of the causes of action

therein stated, are taken.

Sec. 85. Mattel's not apparent of record.—When any of the matters

enumerated in section eighty-four do not appear upon the face of the

complaint, the objection can only be taken by answer. Sec 86. Effect of failure to object.—If no objection be taken to the

complaint, either by demurrer or answer, the defendant shall be

deemed to have waived all objections excepting only the objection to the jurisdiction of the court, over the subject-matter, and that the

complaint does not state facts sufficient to constitute a cause of action. Sec. 87. The answer.—The ans-wer is a defense in writing, made by

a defendant to the charges contained in a complaint filed by the

plaintiff against him. The answer of the defendant shall contain:

1. A general or specific denial of the material allegations of the

complaint, controverted by the defendant. A general denial puts in

issue only the material allegations of the complaint;

2. A statement of any new matter constituting a defense or counterclaim. A material allegation of the complaint which is neither

general nor specifically denied in the answer shall be deemed to have

been admitted.

Sec 88. Defendant having < mutterclaim.—The defendant may set forth by answer as many defenses and counterclaims as he may have,

whatever their nature. They must be separately stated, and the

several defenses must refer to the cause of action which they are intended to answer, in a manner by which they may be intelligibly
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 23

distinguished. The defendant may also answer one or more of the

several causes of action stated in the complaint, and demur to the

residue. Sec. 89. Character of counterclaim.—A counterclaim, to be available as a defense in an answer, must be one in favor of all the substantial defendants and against all the substantial plaintiffs in the

action.

Sec 90. Effect of omission to set up counterclaim.—If the right

out of which the counterclaim arises exists at the time of the com- mencement of the action and arises out of the transaction set forth

in the complaint as the foundation of the plaintiff's claim, or is necessarily connected with the subject of the action, neither the defendant

nor his assignee can afterwards maintain an action against the

plaintiff therefor, if the defendant omits to set up a counterclaim

for the same. But if the counterclaim arises out of transactions

distinct from those set forth in the complaint as the foundation of

the plaintiff's claim and not connected with the subject of the action,

the defendant shall not be barred from any subsequent action upon

such counterclaim by reason of his failure to set it up in his answer

to the pending action.

Sec 91. Cross complaint.—Whenever the defendant seeks affirmative relief apart from the payment of money, he may, in addition

to his answer, file at the same time, or by permission of the court

subsequently, a cross complaint. The defendants to the cross complaint may demur or answer thereto as they would to an original

complaint. Where it is necessary for the defendant to bring a new

party or parties before the court, he shall so state in his cross complaint and a summons shall issue and other proceedings be had, as in

the case of an original complaint.

Sec 92. Demurrer to answer.—The plaintiff may, within a period

to be fixed by general rules of court, demur to the answer of the

defendant or to one or more of the several defenses or counterclaims

set up in the answer, so as thus to test the legal sufficiency of the answer. Sec 93. Grounds of demurrer to answer.—The demurrer may be

taken upon one or more of the following grounds:

1. That the answer does not state facts sufficient to constitute a defense or counterclaim;

2. That the answer is ambiguous, unintelligible, or uncertain.

The demurrer must distinctly specify the grounds upon which any

of the objections to the answer are taken.

Sec 94. Proceedings on demurrer.—When a demurrer to any

pleading is sustained, the party whose pleading is thus adjudged

defective may amend his pleading within a time to be fixed by thvi court, with or without terms, as to the court shall seem just; but if
21 CODE OF CIVIL PKOCEDUKE OF THE CANAL ZONE.

the party fails to amend his pleading within the time limited or elects not to amend, the court shall render such judgment upon the subjectmatter involved in the pleading and demurrer as the law and the

facts of the case as set forth in the pleadings warrant. If the

demurrer is overruled, the court shall proceed, if no answer is filed, to render such judgment as the law and the facts duly pleaded warrant. But after the overruling of a demurrer to an answer the plaintiff may amend his complaint, if necessary, to meet new facts or counterclaims set forth in the answer.

Sec. 95. Authentication of pleadings.—Every pleading must be

subscribed by the party or his attorney and a copy thereof must be

forthwith furnished to the adverse party or his attorney.

Sec 96. Actions and defenses based upon written instruments.—

When an action is brought upon a written instrument and the complaint contains or has annexed a copy of such instrument, the genuineness and due execution of the instrument shall be deemed admitted, unless specifically denied under oath in the answer; and when

the defense to an action, or a counterclaim stated in an answer, is founded upon a written instrument and the copy thereof is contained

in or annexed to the answer, the genuineness and due execution of

such instrument shall be deemed admitted, unless specifically denied

under oath by the plaintiff in his pleadings.

Sec. 97. Plaintiffs reply to new matter contained in answer.—The

plaintiff may reply to any new matter or special defense set up in

the defendant's answer by an amendment to his complaint, which

may be filed as a matter of course and without terms, within a period

to be fixed by rules of court. If the plaintiff does not amend his

complaint, as provided in this section, he shall be deemed to have

controverted every material statement of the answer.

Sec. 98. Supplemental complaint or answer.—The plaintiff and

defendant, respectively, may be allowed, on motion to make a supplemental complaint or answer, alleging facts material to the case occurring after the filing of the original complaint or answer.

Sec. 99. Pleadings to be liberally construed.—In the construction

of a pleading, for the purpose of determining its effects, its allegations shall be liberally construed, with a view to substantial justice

between the parties.

Sec. 100. Sham or irrelevant pleadings.—Sham and irrelevant answers, and irrelevant, redundant, or indecent matter inserted in a pleading, may be stricken out, upon such terms as the court may,

in its discretion, impose.

Sec. 101. Specifications.—The court may, in its discretion, at any

time, upon motion, order either party to make his pleading more

definite, or to file specifications of his items of account or other claims
CODE OF CIVIL PROCEDURE OF THE CANAL, ZONE. 25

involved in the pleading, so as to furnish the adverse party with

complete information as to the claim which he is required to meet. Sec. 102. Variance.—An immaterial variance between the allegation in a pleading and the proof shall be disregarded and the facts found according to the evidence, and the pleading shall be forthwith

amended in accordance with the facts found, unless it has actually

misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it appears that a variance is material and that a party has been misled, courts shall not dismiss

the action by reason of the variance, but shall, upon such terms as may be just, order the pleadings to be forthwith amended in accord- ance with the facts, and determine the action upon the actual facts as

established. The amendments provided in this section may be made

either in the Circuit Court or in the Supreme Court, at any stage of

the action.

Sec. 103. Amendments in general.—The court shall, in furtherance

of justice, and on such terms, if any, as may be proper, allow a party to amend any pleading or proceeding and at any stage of the

action, in either Circuit Court or the Supreme Court, by adding or striking out the name of any party, either plaintiff or defendant,

or by correcting a mistake in the name of a party, or a mistaken or inadequate allegation or description in any other respect, so that the

actual merits of the controversy may speedily be determined, without

regard to technicalities, and in the most expeditious and inexpensive manner. The court may also, upon like terms, allow an answer or

other pleading to be made after the time limited by the rules of the court for filing the same. Orders of the court upon the matters

provided in this section shall be made upon motion filed in court, and

n fter notice to the adverse party, and an opportunity to be heard.

Sec. 104. When name of defendant is unknown.—When the plaintiff is ignorant of the name of a defendant, he must state that fact in

the complaint, and such defendant may be designated in any complaint or proceeding by any name. When his true name is discovered

the pleading or proceedings must be amended accordingly.

Sec. 105. Proceedings in cases of appeal from district courts.—

"When a perfected appeal from a judgment of a district judge has

been duly entered in the Circuit Court new pleadings shall be filed in

the action in that court, and the pleadings in such action shall be in

all respects governed by the same rule as though the action had been

originally commenced in the Circuit Court, But the plaintiff may, if he so elects, rely upon his complaint as originally filed before the

district judge, instead of filing a new one. Sec. 106. Relief from effect of judgments and orders.—Upon such

terms as may be just the court may relieve a party or his legal rep-
26 CODE OF CIVIL PROCEDURE OP THE CANAL ZONE.

resentative from a judgment, order, or other proceeding taken against

him through his mistake, inadvertence, surprise, or excusable neglect

Provided, That application therefor be made within a reasonable

time, but in no case exceeding six months after such judgment, order, or proceeding was taken.

Chapter VI.

PARTIES TO ACTIONS.

Sec. 107. Parties to actions.—Every action must be prosecuted in

the name of the real party in interest. But in the case of an assignment of a right of action, an action by the assignee shall be without

prejudice to any set-off or other defense existing at the time of or before notice of assignment; but this last provision shall not apply

to a negotiable promissory note, or a draft or a bill of exchange,

transferred in good faith and upon good consideration before maturity. And an executor or administrator or legal representative of

a deceased person, or a trustee of an express trust, or a person ex- pressly authorized by law so to do, or a lawfully appointed guardian

of a person of unsound mind, or of a minor, may sue or be sued without joining with him the person for whose benefit the action is prosecuted or defended.

Otherwise than as provided in this section, all persons having an

interest in the subject of the action and in obtaining the relief demanded shall be joined as plaintiffs.

Any person should be made a defendant who has or claims an in- terest in the controversy or the subject-matter thereof adverse to the plaintiff, or who is a necessary party to a complete determination

or settlement of the questions involved therein.

If any person having an interest in the subject of the action, and

in obtaining the relief demanded, refuses to join as plaintiff with

those having a like interest, he may be made a defendant, the fact of

his interest and refusal to join being stated in the complaint.

Sec. 108. Married woman as a party.—When a married woman is a party, her husband must be joined with her, except:

1. When the action concerns her property, in which her husband

can have no interest or right

2. When the action is between herself and her husband

3. When for a just cause she is living separate and apart from her

husband or by reason of an agreement in writing entered into between

them.

In either of which cases she may sue or be sued alone. Sec. 109. Infants, spendthrifts, and persons of unsound mind.—

When an infant or a person of unsound mind or a person judicially
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 27

decreed to be a spendthrift is a party to an action, he must appear

either by his general guardian or by a guardian ad litem appointed

by the court in which the action is pending. A guardian ad litem

may be appointed in any case when it is deemed by the court in which

the action or proceeding is prosecuted expedient to represent the

infant, spendthrift, or person of unsound mind in the action or proceeding.

Sec. 110. Guardian ad litem.—Such guardian ad litem may be

appointed by the court of its own motion, and shall be appointed

upon the application of a relative or friend of the infant, spendthrift, or person of unsound mind. The court may, in its discretion,

allow to a guardian ad litem a reasonable compensation for his

services as such guardian, to be paid out of the estate of the ward.

Sec 111. Numerous parties.—When the subject-matter of the con- troversy is one of common or general interest to many persons, and

the parties are so numerous that it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of

all. But in such case any party in interest shall have a right to intervene in protection of his individual interest, and the court shall

make sure that the parties actually before it are sufficiently numerous

and representative so that all interests concerned are fully protected.

Sec 112. Death of party.—In case a party to an action dies while

the action is pending, the action shall not abate by reason thereof,

but the court on motion may allow the action or proceeding to be

continued by or against his executor, administrator, heirs, or other

legal representative, and the judgment, if it be for the payment of

costs and against the executor, administrator, or other legal representative, shall be that he pay in due course of administration : Provided] nevertheless, That if the action is for the recovery of money,

debt, or damages against the deceased, it shall be discontinued, and

the claim thereafter be prosecuted as herein otherwise provided ; and

provided further, that should any action survive against the heirs

of the deceased, the court may ascertain who are the heirs of the

deceased and proceed as if the suit had been originally brought

against them.

Sec 113. Interpleading.—Whenever conflicting claims are or may

be made upon a person for or relating to personal property, or the

performance of an obligation or any portion thereof, so that he may

be made subject to several actions by different persons, unless the court intervenes, such person may bring action against the conflicting

claimants, disclaiming personal interest in the controversy to compel

them to interplead and litigate their several claims among themselves,

and the court may order the conflicting claimants to interplead with

one another and thereupon proceed to determine the right of the

several parties to the interpleading to the personal property or the
28 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

performance of the obligation in controversy, and shall determine the

rights of all parties in interest. Sec. 114. Intervention.—A person may, at any period of a trial,

upon motion, be permitted by the court to intervene in an action or proceeding, if he has legal interest in the matter in litigation, or in

the success of either of the parties, or an interest against both. Such

intervening party may be permitted to join the plaintiff in claiming

what is sought by the claimant, or to unite with the defendant in

resisting the claims of the plaintiff, or to demand anything adverse

to both the plaintiff and defendant. Such intervention, if permitted

by the court, shall be made by complaint in regular form, filed in

court, and may be answered or demurred to as if it were an original

complaint. Notice of motion for such intervention shall be given

to all parties to the action, and notice may be given by publication, in

accordance with the provisions of this Code relating to publication,

in cases where other notice is impracticable.

Sec 115. Necessary parties.—The court may determine any con- troversy between parties before it if it can be done without prejudice to the rights of others or by preserving their rights for future

action; but when a complete determination of the controversy can

not be had without the presence of other parties, the court must

order them to be brought in, and to that end may order amended or supplemental pleadings, or a cross complaint, to be filed and sum- mons therein to be duly issued and served.

Chapter VII.

VARIOUS PROCEEDINGS IN CIRCUIT COURTS.

Sec. 116. Interlocutory and incidental orders.—No interlocutory or incidental ruling, order, or judgment of the Circuit Court shall stay the progress of an action or proceeding therein pending, but

only such ruling, order, or judgment as finally determines the ac- tion or proceeding; nor shall any ruling, order, or judgment be the

subject of appeal to the Supreme Court until final judgment is ren- dered for one party or the other : Provided, That whenever an interlocutory order or decree is entered in any suit pending in any court of the Canal Zone, granting an injunction, or overruling a motion

to dissolve the same, or enlarging the scope of an injunction order, or appointing a receiver, or giving other or further powers or property to a receiver already appointed, an appeal may be taken from

such interlocutory order or decree to the Supreme Court of the

Canal Zone: Provided, That such appeal is taken within thirty days

from the entry of such interlocutory order or decree and is perfected

in said Supreme Court within sixty days from the entry of such
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 29

order or decree. The force and effect of such interlocutory order or

decree and the proceedings in the court below shall not be stayed

during the pendency of such appeal, and the party taking such appeal shall give bond, to be approved by the clerk of the court below,

to secure costs in the Supreme Court. Upon the filing of the record

in the Supreme Court, the same shall there be at once docketed, and

shall be ready for hearing under the rules of said court, taking

precedence of other causes in said court. Upon such appeal the Supreme Court may affirm, modify, or reverse such interlocutory order

or decree, and shall direct such proceedings to be had in the court below as the justice of the case may require. If such appeal is dis- missed, the Supreme Court may allow to the attorney for appellee a

reasonable attorney's fee, not to exceed one hundred dollars, to be

taxed as part of the costs of the appeal.

Sec. 117. Judgment in case of several plaintiffs or defendants.—

Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and the

court may, when the justice of the case requires it, conclusively

determine the ultimate rights of the parties on each side, as between

themselves, and may require such parties to file adversary pleadings

as between themselves.

Sec 118. Several judgments..—In an action against several defendants the court may, in its discretion, render judgment against one

or more of them, upon default or confession, or otherwise, leaving

the action to proceed against the others whenever a several judgment

is proper.

The court may, in its discretion, order execution to issue upon such

several judgment.

Sec 119. Kind of relief to be granted.—The relief granted to the

plaintiff, if there be no answer, can not exceed that which he shall

have demanded in his complaint; but, in any other case, the court may grant him any relief consistent with the case made by the complaint and supported by the evidence and embraced within the issues,

requiring the necessary amendments.

Sec 120. Dismissal of actions.—An action may be dismissed, with

costs to the defendant, in the following cases

1. By the plaintiff himself, by written request to the clerk filed among the papers in the case, at any time before trial, upon payment of the costs; provided a counterclaim has not been made, or

affirmative relief sought by the cross complaint or answer of the

defendant, or provided the judge shall not decide that the defendant

has made such preparation for trial that it would be unjust to permit

a dismissal without a trial on the merits;

2. By the court, when the plaintiff fails to appear at the time of

trial, and the defendant appears and asks for the dismissal;

803a—07—m 3
30 CODE OP CIVIL PKOCEDURE OP THE CANAL ZONE.

3. By the court, when the plaintiff fails, for an unreasonable

length of time, to prosecute his action;

4. The court may also, in its discretion, allow a plaintiff to dismiss

the action on payment of the costs after the trial has begun and at any time before final adjournment, if the interests of justice so require;

5. The dismissal in the above cases shall be entered on the docket

of the court and shall be effective, when so entered, to end the action

but shall not be a bar to another action for the same cause. Sec. 121. Default.—In case a defendant fails to appear at the

time required in the summons, or to answer at the time provided

\y$ the rules of court, the court shall, upon motion of the plaintiff,

order judgment for the plaintiff by default which shall be entered

up\)ii the docket; and the court shall thereupon proceed to hear the

plaintiff and his witnesses and assess the damages or determine the

other relief to which the plaintiff may be entitled, including the costs of the action, and render final judgment for the plaintiff to recover such sum or to receive such other relief as the pleadings and the facts warrant. If the taking of a long account be involved in determining

the amount to which the plaintiff shall be entitled, the court rna}^,

in its discretion, order a reference to some suitable person to take

the account and report to the court and upon the coming in of such

report, such final judgment shall be rendered as the facts require.

Sec 122. Default on cross complaint.—If the plaintiff fails to answer a cross complaint within the time limited by the rules of court,

judgment by default may be entered against him upon the cross complaint and the same proceedings shall be had upon such default

as though the cross complaint had been the original complaint.

Sec. 123. Postponement.—The court may, in its discretion, for

cause, and with or without terms, postpone a trial from day to clay, or to a stated time during the term of the court, or to the next

succeeding term.

Sec. 124. Adjournment.—Court may adjourn from day to day, and

to any stated time, as the expeditious and convenient transaction of

business may require.

Sec. 125. Order of trial.—The trial must proceed in the following

order, unless the judge, for special reasons, otherwise directs:

1. The plaintiff, after stating the issue and his case, must produce

the evidence on his part; but he may read the complaint as his state- ment of the case, if the judge so directs;

2. The defendant shall then state his defense and offer his evidence

in support thereof; but he may read his answer as his statement of

defense, if the judge so directs;

3. The parties may then respectively offer rebutting evidence only,

unless the court, for good reason, in the furtherance of justice, per- mits them to offer evidence upon their original case;
CODE OP CIVIL PROCEDURE OF THE CANAL ZONE. 31

4. When the evidence is concluded, unless the parties on either side or both sides agree to submit it without argument, the plaintiff or his

counsel may make the opening argument, the defendant or his counsel may follow, and the plaintiff or his counsel may conclude the

argument. Two counsel may, if desired, be heard upon each side,

but in the order herein prescribed ; and the court may in its discretion limit the time for oral argument;

5. If several defendants, having separate defenses, appear by different counsel, the court must determine their relative order in the

evidence and argument, but in any event the plaintiff is entitled to the opening and closing argument.

Sec. 126. Findings of facts.—Upon the trial of a question of fact,

the decision of the court must be entered on the record by the clerk. Sec 127. Agreed statement of facts.—The parties may, in any

action or special proceeding, agree, in writing, upon the facts in- volved in the litigation, and require the judgment of the court upon

the questions of law arising from such agreed statement of facts,

without the introduction of testimony. The ruling and judgment of

the court upon such agreed statement of facts shall be subject to exception, like all other rulings of the court. When an agreed state- ment of facts is entered into by the parties, no other finding of facts

need be made by the court. Sec 128. Reference.—By written consent of both parties, filed with

the clerk, the court may order an action to be referred to one or more

referees, to be agreed upon by the parties or to be appointed by the

court. Sec 129. Commission to referees.—In such case, the clerk shall

issue, under the seal of the court, a commission to the referee or

referees named, directing them to proceed with the trial of the action

and to report the findings of law and fact to the court at or before a time named in the commission.

Sec 130. Oath of referees.—Eeferees, before commencing the per- formance of their duty, shall be sworn to a faithful and honest per- formance thereof, and the fact that they have taken such oath shall be certified to on the commission by the authority administering the

oath. The oath may be administered by the judge or clerk of the

court, or by any district judge or notary public in the administrative

district. Sec 131. Trial before referee.—Trial may occur at any convenient

place within the circuit, and the time and place for trial shall be fixed

by the referee and reasonable notice thereof shall be given by him to the parties. The referee is hereby authorized to administer oaths

to witnesses, and the trial before him shall proceed in all respects

as though the same had been had before the court.
32 CODE OP CIVIL PROCEDURE OF THE CANAL ZONE.

Sec. 132. Report of referee.—Upon the completion of the trial, the

referee shall report, in writing, to the court the facts found by him

and such of his rulings as the parties shall request him to report.

Sec. 133. Hearing upon report.—Upon the filing of the report or

as soon as conveniently may be thereafter, the court shall render

judgment in accordance with the report, as though the facts had been

found by the judge himself, unless the court shall, for cause shown,

set aside the report, or modify and change the same in whole or in

part and then enter judgment thereon, or order it to be recommitted

to the referee for further findings. Sec. 134. Exceptions.—An exception is an objection upon a matter

of law to a decision made by a court, tribunal, judge, or other judicial officer in an action or proceeding. Rulings of the court upon

minor matters, such as adjournments, postponements of trials, the

extension of time for filing pleadings or motions, and other matters

addressed to the discretion of the court in the performance of its duty, shall not be subject to exception. But exception may be taken

to any other ruling, order, or judgment of the court made during

the pendency of the action in the Circuit Court.

Sec. 135. Manner of taking exceptions.—The party excepting to the ruling, order, or judgment, shall forthwith inform the court that

he excepts to the ruling, order, or judgment, and the judge shall

thereupon minute the fact that the party has so excepted; but the

trial shall not be delayed thereby. The exception shall also be re- corded by the stenographer, if one is officially connected with the

court. Sec. 136. Perfecting bill of exceptions.—Upon the rendition of

final judgment disposing of an action, either party shall have the right

to perfect a bill of exceptions for a review by the Supreme Court of

all rulings, orders, and judgments, made in the action, to which the

party has duly excepted at the time of making such ruling, order, or judgment. The party desiring to prosecute the bill of exceptions

shall so inform the court at the time of the rendition of final judgment, or as soon thereafter as may be practicable and before the ending of the term of court at which final judgment is rendered, and the

judge shall enter a memorandum to that effect upon his minutes and

order a like memorandum to be made by the clerk upon the docket

of the court among the other entries relating to the action. Within

ten days after the entry of the memorandum aforesaid, the excepting

party shall cause to be presented to the judge a brief statement of

the facts of the case sufficient to show the bearing of the rulings,

orders, or judgments excepted to, and a specific statement of each

ruling, order, or judgment that has been excepted to, for allowance

by the judge. The judge shall thereupon, after reasonable notice
CODE OP CIVIL PROCEDURE OF THE CANAL ZONE. 33

to both parties and within five days from the presentation of the bill of exceptions to him, restate the facts if need be, and the exceptions,

so that the exceptions of law therein involved, and their relevancy

shall all be made clear., and when the bill of exceptions has been

perfected and allowed by the judge, he shall certify that it has been

so allowed and the bill of exceptions shall be filed with the other

papers in the action, and the same shall thereupon be transferred

to the Supreme Court for determination of the questions of law

involved. A bill of exceptions may likewise be made to consist of

the judge's findings of fact in his final judgment and a statement of

all the exceptions reserved by the party desiring to prosecute the

bill of exceptions, which shall be allowed and filed by the judge as above in this section provided.

Immediately upon the allowance of a bill of exceptions by the

judge, it shall be the duty of the clerk to transmit to the clerk of the

Supreme Court, a complete transcript of the record, including therein

the bill of exceptions, and of all documents which by the bill of exceptions are made a part of it, but the substance of documents may be

shown, except when in the opinion of the judge an exhibition of the

entire document or specified parts thereof is necessary to full understanding of the case. The cause shall be heard in the Supreme Court

upon the record so transmitted.

Sec. 137. Stay of execution.—Except by special order of the court, no execution shall issue upon a final judgment rendered in a Circuit

Court until after the period for perfecting a bill of exceptions has

expired. But the filing of a bill of exceptions together with a bond

to be fixed by the court and by it approved, shall stay execution until

the final determination of the action, unless for special reasons stated

in the bill of exceptions the court shall order that execution be not

stayed, in which event execution may issue at once. The court shall

require as a condition of a stay of execution that a bond shall be

given, reasonably sufficient to secure the performance of the judgment appealed from in case it be affirmed in part or wholly and the

payment of costs. Sec 138. New trial.—At any time during the term at which an

action has been tried in a Circuit Court, the judge thereof may set aside the judgment and grant a new trial, upon such terms as may

be just, on the application of the party aggrieved, and after due notice to the adverse party in the following cases

1. Accident or surprise which ordinary prudence could not have

guarded against, and by reason of which the party applying has

probably been impaired in his rights

2. Newly discovered evidence, material to the party making the

application, which he could not, with reasonable diligence, have dis- covered and produced at the trial
34 CODE OP CIVIL PROCEDURE OF THE CANAL ZONE.

3. Because the judge has become satisfied that excessive damages

have been awarded, or that the evidence was insufficient to justify the

judgment, or that it is against the law.

Sec. 139. Method of procedure in applications for new trial.—The

application shall be made by motion in writing, stating the ground

therefor, of which the adverse party shall have such reasonable

notice as the judge may direct. When the application is made for a cause mentioned in the first or second subdivisions of the last section,

it must be made upon affidavits, and counter affidavits from the adverse party may likewise be received; the overruling or granting of a motion for a new trial shall be a ground of exception, but no appeal

or bill of exceptions to the Supreme Court shall be allowed or neces- sary before final judgment is entered. Sec. 140. Effect of granting a motion for a new trial.—If a new

trial shall be granted the original judgment shall be vacated, and the

action shall stand for trial de novo ; but the recorded evidence taken

upon the former trial, so far as the same is admissible and competent

to establish the issues, shall be used upon the new trial without retaking the same. Sec 141. Belief from judgments of subordinate tribunals, obtained

by fraud, accident, or mistake.—When a judgment has been rendered

by a district judge, or any other subordinate tribunal, and any

party to the action has been unjustly deprived of his day in court and

an opportunity to be heard thereon, by fraud, accident, mistake, or excusable negligence, or has been prevented from entering an appeal

from such judgment by fraud, accident, mistake, or excusable negli- gence, the Circuit Court may, in its discretion, and on reasonable

terms, reverse and set aside the judgment so rendered, and hear and

determine the action and make the necessary orders therein, as if the same had been brought to the Circuit Court by appeal, provided the

party so aggrieved shall make application, as hereinafter provided,

to the Circuit Court and within sixty days after he first knows that

such judgment has been rendered against him. This section shall be

liberally construed so as to prevent injustice.

Sec 14k2. Procedure to vacate such judgment.—The person ag- grieved by a judgment obtained in the manner stated in the precedingsection may, within the time limited, file his complaint in the Circuit Court of the district in which the original judgment was ren- dered, stating the fact of the rendition of such judgment and the

circumstances constituting the fraud, accident, mistake, or excusable

negligence relied upon as ground for relief, and praying that such

judgment may be reversed and set aside and the cause be determined

upon its merits. The party against whom the complaint is made

shall be served with notice as in other actions pending in the Circuit

Court, and the trial shall proceed as in other actions in that court.
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 35

If the court shall find that the facts set forth in the complaint are

true and that the complainant is entitled to relief, the judgment

complained of shall be reversed and set aside, and shall thereafter be

of no validity, and the court shall proceed to hear and determine the

action upon its merits, and make the necessary orders therein, as if the same had been regularly brought to said court by appeal.

Sec. 143.. Temporary injunction in such cases.—At the time of

filing such complaint, or at any time thereafter before final hearing,

the judge of the Circuit Court in which the action is pending, may

grant an injunction restraining the party in whose favor such judgment has been rendered, his agents and attorneys and the district judge

or other inferior tribunal rendering the judgment, from any further

proceedings to enforce the same until the further order of the court in

the premises, which injunction shall be served in the manner provided by law for serving process; but the judge issuing such injunction shall, before issuing it, take from the party upon whose application the same is granted, an obligation to the other party, with

sufficient sureties, to be approved by the judge, conditioned that if the

complainant fails to prosecute his complaint with effect, or finally to recover in such action, he will pay the adverse party the intervening

damages and cost accruing to him by reason of the issuing of such in- junction, together with the amount of the original judgment, but such

injunction shall not operate to discharge or release bail or extinguish

any lien which the party enjoined has acquired upon the property of

the plaintiff by attachment or levy of execution. The damages, if any, accruing under this section shall be assessed by the judge and

included in his final judgment in the action.

Sec 144. Final judgment in such proceedings.—If the plaintiff

shall prevail in such action, the original judgment shall be reversed

and vacated, and the defendant therein and the municipal judge or other inferior tribunal that rendered the judgment shall be perpetually enjoined from any further steps to enforce the same. The

costs of such proceedings shall be awarded in the discretion of the

court, in such manner as justice requires.

Sec 145. Attendance of the district judge.—Upon the trial of an

action instituted in pursuance of the preceding sections, the district judge or other subordinate magistrate or official who rendered

the judgment complained of, shall attend and produce before the court all the papers in the original action, if required to do so by the

judge.

Chapter VIII.

ABATEMENT.

Sec 146. Neiv action within one year from death of party.—If a person entitled to bring an action, die before the expiration of the
3(> CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

term limited for the commencement thereof, and the cause of action

survive, an action may be commenced by his representatives, after

the expiration of that time, and within one year from his death.

If a person against whom an action may be brought die before the

expiration of the time limited for the commencement thereof, an

action may be commenced against his representatives after the

expiration of that time, and within one year after the issuing of

letters testamentary or of administration.

Sec. 147. Extension of time to aliens, etc.—When a person is an

alien subject, or a citizen of a country at war with the United States,

the time of the continuance of the war is not a part of the period

limited for the commencement of the action.

Sec 148. Where judgment reversed.—If an action is commenced

within the time prescribed therefor, and a judgment therein for the

plaintiff be reversed on appeal, the plaintiff, or, if he die and the cause of action survive, his representatives may commence a new

action within one year after the reversal. Sec 149. Where action stayed.—When the commencement of an

action is stayed by injunction or statutory prohibition, the time of

the continuance of the injunction or prohibition is not part of the

time limited for the commencement of the action.

Sec 150. Marriage, female party.—No action, proceeding or complaint, commenced by or against a feme sole, either alone or with

others, shall abate on account of her intermarriage before final judgment, but she may continue to prosecute or defend the same in like manner as if she were sole. Sec 151. Death of coplaintiff

—When there is but one plaintiff,

petitioner or complainant in an action, proceeding or complaint, and

he shall die before final judgment or decree, such action, proceeding

or complaint shall not on that account abate, if the cause of action

survive to the heir, devisee, executor or administrator of such decedent, but any of such to whom the cause of action shall survive,

may, by suggesting such death upon the record, be substituted as

plaintiff, petitioner or complainant, and prosecute the same as in

other cases. Sec 152. Death of codefendant.—When there is but one defendant

in an action, proceeding or complaint, and he dies before final judgment or decree, such action, proceeding or complaint shall not on

that account abate, if it might be originally prosecuted against the

heir, devisee, executor or administrator of such defendant, but the

plaintiff, petitioner or complainant may suggest such death on

the record, and shall, by order of the court, have summons against

such person or legal representative, requiring him to appear and

defend the action, proceeding or complaint, after which it may pro- ceed as if it had been originally commenced against him.
CODE OF CIVIL PROCEDURE OF THE CANAL, ZONE. 37

Sec. 153. Surviving parties.—-When there are several plaintiffs, petitioners or complainants, or defendants in an action, proceeding or complaint, the cause of which survives, and any of them die before

final judgment or decree, the action, proceeding or complaint shall not on that account abate, but such death may be suggested on the

record, and the cause proceed at the suit of the surviving plaintiff,

petitioner or complainant, or against the surviving defendant, as the

case may be, in all cases as if such persons had been originally sole parties to the suit. Sec. 154. Same.—If, in the case mentioned in the preceding section

all the plaintiffs, petitioners or complainants, or all the defendants

die, the cause may be prosecuted or defended by or against the heir,

devisee, executor or administrator of the last surviving plaintiff, petitioner, complainant or defendant respectively, to or against whom the cause survives, in like manner as if the survivor had been originally

the only plaintiff, petitioner, complainant or defendant.

Sec 155. Ejectment, death of plaintiff.—If there are several plaintiffs in an action of ejectment, or an ordinary action for the recovery

of real property or any interest therein, and any of them dies before

final judgment, the death of such party may be suggested on the rec- ord, and the heir or devisee of the deceased party shall be admitted to prosecute the suit jointly with the survivor, in the same manner as if he had originally joined with him in commencing the action. Sec. 15G. Rights of surviving plaintiff. —If the interest of the de- ceased party passes to the surviving plaintiff, or if the heir or devisee

of the deceased party does not, within a reasonable time, to be fixed

• by the court, join in the prosecution of the suit, the surviving plaintiff may prosecute the suit for so much of the premises in question as may then be claimed by him.

Sec 157. Ejectment, death of codefendant.—In case of the death

of any several defendants in an action of ejectment, or an ordinary

action for the recovery of real property or any interest therein, the

action may be prosecuted against the other defendants for so much of

the premises as they hold or claim; or, the death being suggested, the

heir, or devisee of the deceased party may be made co-defendant with

•the others, and the suit proceed the same as if such heir or devisee had

originally been made co-defendant.

Sec 158. Where cause of action does not survive to co-party.—

When there are several complainants or defendants in a suit or proceeding, and any of them may die, and the cause of action does

not survive to the surviving complainant or against the surviving

defendant, and any other persons become interested therein in con- sequence of such decease, such suit or proceeding shall, by reason

of such death, be abated only with respect to such deceased party;

and the person or legal representative so becoming interested may

be made a party to such suit or proceeding in the same manner as
38 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

in the case of the death of a sole complainant or defendant; or the

suit or proceeding may be prosecuted by the surviving complainant against the surviving defendant without reviving the same in

favor of or against the person or legal representative so becoming

interested therein; but in the latter case such interested person or

legal representative, not made a party, shall not be bound by any

order or decree made in the cause. Sec. 159. Death of personal representative.—When an executor,

administrator, guardian or conservator is plaintiff, petitioner or complainant, or defendant in a suit or proceeding, and dies, resigns, or

is removed from office before final judgment or decree, the suit or proceeding shall not on that account abate, but the same may be con- tinued by or against his successor, in like manner as in case of the

death of other parties.

Sec. 160. Death of public officer or trustee.—When an action, pro- ceeding or complaint, in law or equity, is authorized or directed by

law to be brought by or in the name of any public officer, or by any

trustee appointed by virtue of any statute, and such officer or trustee

dies or ceases to be such officer or trustee before final judgment or decree, the suit shall not on that account abate, but the same may be

continued by his successor, in like manner as in case of the death of

other parties. Sec. 161. Party becoming insane.—If, during the pendency of an

action, proceeding or complaint, either party becomes insane, the cause may be prosecuted or defended by his conservator in like manner as by an executor or administrator in case of the death of a party,

or the court may appoint a guardian ad litem, as the case may re- quire.

Sec. 1(52. No abatement in partition suits.—No plea in abatement

shall be received in any suit for partition, nor shall such suit abate

by the death of any tenant. Sec. 163. Same.—No suit for the partition of land shall abate on

account of the death of any party thereto, but it may be continued in

the names of the survivors, if the interest of such deceased person

survives to them; and if such interest passes to other persons they

may be made parties in like manner as in the case of the death of

other parties, and the same proceedings may be had as if they had

been made parties originally.

Sec. 164. Where action brought for another.—No suit, instituted

in the name of one for the use of another, shall abate by reason of the

death of the person whose name is used ; but it may be continued by

the real plaintiff in interest, in his own name, on his suggesting such

death on the record, and an order of the court being made, substituting his name for that of the deceased plaintiff. Sec. 165. Writs of error, etc. —These provisions shall apply to all
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 39

appeals, writs of error and of certiorari, so far as the same may be

made applicable. Sec. 166. Process to any circuit.—Process may be sued out, and

may be directed to any circuit, and shall correspond, as nearly as may

be, to the original writ, and may be executed and returned in the same

manner.

Sec. 167. Disability, when available.—No person can avail himself

of a disability, unless it existed when his right of action accrued.

Sec 168. Two or more disabilities.—When two or more disabilities co-exist at the time the right of action accrues, the limitation does not

attach until they are removed.

Sec 169. Directors and stockholders of corporations.—This chapter does not affect actions against directors or stockholders of a cor- poration, to recover a penalty or forfeiture imposed, or to enforce a

liability created by law ; but such actions must be brought within

three years after the discovery by the aggrieved party of the facts

upon which the penalty or forfeiture attached or the liability was

created.

Sec 170. Acknowledgment or new promise must be in writing.—

No acknowledgment or promise is sufficient evidence of a new or con- tinuing contract, unless the same is contained in some writing signed

by the party to be charged thereby, or his agent duly authorized in

writing, or his attorney in fact. Sec 171. Where cause of action arises in foreign country.—When

a cause of action has arisen in a State or Territory of the United

States, or in a foreign country, and b}^ the laws thereof an action

thereon can not be maintained against a person by reason of the lapse

of time, an action thereon shall not be maintained against him in the

Canal Zone, except in favor of one who has been a resident of said

Canal Zone, and who has held the cause of action from the time it accrued.

Sec 172. Definition.—The word " action " as used in this chapter,

is to be construed, whenever it is necessary to do so, as including a

special proceeding of a civil nature. Chapter IX.

SPECIAL REMEDIES.

Injunctions—Receivers—Partition or real estate—Usurpation

of office or franchise certiorari proceedings—mandate

Prohibition — Contempt — Eminent domain — Foreclosure —

Manual delivery of personal property.

Injunctions.

Sec 173. Injunction defined.—An injunction is a writ or order

requiring a person to refrain from a particular act, or, if mandatory,
40 CODE OF CIVIL PKOCEDURE OP THE CANAL ZONE.

commanding the defendant to do a particular thing. It may be of

two kinds

1. A preliminary injunction is one granted at any stage of an

action prior to final judgment;

2. A final injunction is one granted in the final judgment as the

relief, or a part of the relief, granted as a result of the action.

Sec. 174. Who may grant an injunction.—A preliminary injunction may be granted by any judge of the Circuit Court in any action

pending in the Circuit Court in any circuit of the Canal Zone in

which he has original jurisdiction; in case of his absence, by any

Circuit Judge of the Canal Zone present on the Zone and not dis- qualified.

Sec 175. Circumstances under which a preliminary injunction

may be granted.—A preliminary injunction may be granted when

it is established, in the manner hereinafter provided, to the satisfaction of the judge granting it

1. That the plaintiff is entitled to the relief demanded and such

relief, or any part thereof, consists in restraining the commission

or continuance of the acts complained of either for a limited period

or perpetually;

2. That the commission or continuance of some act complained of

during the litigation would probably work injustice to the plaintiff;

3. That the defendant is doing, or threatens, or is about to do, or

is procuring or suffering to be done, some act probably in violation

of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual.

4. No mandatory injunction, or injunctions requiring the per- formance of some affirmative act, will be granted before final hearing,

and will be ordered to issue only by final decree.

Sec. 176. Time of granting preliminary injunction.—A preliminary injunction may be granted at any time after the commencement

of the action and before final judgment.

Sec 177. Method of obtaining preliminary injunction.—A preliminary injunction may be granted only when the following conditions

are complied with

1. The complaint must show facts entitling the plaintiff to the

relief demanded;

2. The complaint must be verified by the oath of the plaintiff or by that of some other person by him duly authorized and who can

testify to the truth of the facts set forth in the complaint

3. The plaintiff must file with the clerk of the court in which the

action is pending a written obligation on the part of the plaintiff

with sufficient sureties, to the effect that the plaintiff will pay, to the

party enjoined all such damages as such party may sustain by reason of the injunction, if the court should finally decide that the plaintiff
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 41 was not entitled thereto. The sufficiency of the obligation must be

approved in writing by the judge granting the injunction, and before

approval he shall require such proof as is necessary in regard to the

sufficiency of the sureties. The sureties, by executing the obligation,

become quasi parties to the proceeding, so that a judgment may be

rendered against them without further notice. Sec. 178. Proceeding in case of insufficient sureties.—If it shall be made to appear at any time during the progress of the action that

the sureties on the obligation provided in the last section are insuffi- cient, the judge of the court in which the action is pending may,

upon motion, order new sureties to be provided; and, if no sureties are provided within a time fixed by the order of the court for that

purpose, the injunction shall be dissolved. Sec. 179. Notice to defendant of preliminary injunction.—-The

injunction hereinbefore provided may be granted ex parte on the

application of the plaintiff, on the conditions before stated, but if the judge to whom application is made for the granting of the in- junction deems it just that the defendant should be heard before

granting the injunction, an order may be made requiring cause to be

shown, at a specified time and place, why the injunction should not

be granted, and the defendant may then and there be heard and

the injunction may be granted or refused as justice shall require.

If upon such hearing it should be made to appear to the satisfaction

of the court that the plaintiff is entitled to the injunction, but that

the issuance thereof pending the litigation would entail great damage

upon the defendant, and that the plaintiff could be fully compensated

for such damages as he might suffer, the judge may refuse the in- junction, upon the defendant giving an obligation with sureties to be approved by the judge in such amount as may be fixed by the

judge, conditioned that the defendant will pay all damages which

the plaintiff may suffer by reason of the continuance during the

litigation of the acts complained of. Sec 180. Dissolution of temporary injunctions.—If a temporary

injunction be granted without notice, the defendant, at any time

before the trial, may apply, upon reasonable notice to the adverse

party, to the judge who granted the injunction, or to the judge of the court in which the action was brought, to dissolve or modify the same. The application may be based upon the insufficiency of

the complaint on which the injunction was granted or upon affidavit on the part of the defendant, with or without an answer. If the

application be made upon affidavits upon the part of the defendant,

but not otherwise, the plaintiff may oppose the same by affidavits or other evidence to substantiate the facts set forth in the complaint,

and the judge shall, after hearing, dissolve or modify or continue

the injunction as justice may require. If it be made to appear to the
42 CODE OP CIVIL PROCEDURE OF THE CANAL ZONE.

judge that great damage will be suffered by the defendant in case the injunction is continued and that the plaintiff can be fully compensated for any damages he may suffer by reason of the continuance

of the acts of the defendant during the pendency of the litigation,

the judge in his discretion may dissolve or modify the injunction,

upon the defendant giving an obligation, with sureties to be approved by the judge, that the defendant will pay all damages which

the plaintiff may suffer by reason of the continuance during the

litigation of the acts complained of. Sec. 181. Damages pending a preliminary injunction.—Upon final

trial the amount of damages to be awarded to the plaintiff or to the

defendant upon the obligation hereinbefore required, shall be ascer- tained by the court trying the action, and judgment for the same

shall be included in the final judgment and the judgment shall be

both against the plaintiff and against the sureties upon any obligation given.

Sec 182. Final injunctions.—If upon the final trial of the action it shall appear that the plaintiff is entitled to an injunction perpetually

restraining the commission or continuance of the act complained of,

the court shall grant a final injunction perpetually restraining the

defendant from continuing the act. Sec 183. Method of enforcing injunctions.—A person violating an injunction shall be treated as in contempt of court and dealt with

as hereinafter provided under the head of " Contempt."

Receivers.

Sec 184. Receivers, who may appoint.—A judge of the Circuit

Court in which the action is pending, may appoint one or more

receivers of the property, real, personal, or mixed, which is the

subject of the action, in the manner and under the conditions hereinafter provided.

Sec 185. When a receiver may he appointed.—A receiver may be

appointed in the following cases

1. When a corporation has been dissolved, or is insolvent, or is in

imminent danger of insolvency, or has forfeited its corporate rights

2. When it is made to appear by the complaint or answer, and by

such other proof as the judge may require, that the party making

the application for the appointment of receiver has an interest in the

property or fund which is the subject of the action and it is shown

that the property or fund is in danger of being lost, removed, or materially injured unless a receiver shall be appointed to guard and

preserve it

3. In an action by the mortgagee for the foreclosure of a mortgage,

where it appears that the property is in danger of being wasted or materially injured, and that its value is probably insufficient to discharge the mortgage debt;
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 43

1. Whenever in other cases it shall be made to appear to the court

that the appointment of a receiver is the most convenient and feasible means of preserving and administering the property which is the

subject of litigation during the pendency of the action. Sec. 186. General powers of a receiver.—-The receiver shall have,

under the control of the court in which the action is pending, power

to bring and defend actions in his own name, as receiver; to take and

keep possession of the property in controversy; to receive rent, to

collect the same due to himself as receiver, or to the fund, property,

estate, person, or corporation of which he is receiver; to compound

for and compromise the same ; to make transfers ; and generally to do

such acts respecting the property as the court may authorize. Sec. 187. Receivers of a corporation.—-When a corporation has been

dissolved, or is insolvent, or is in imminent danger of insolvency, or has forfeited its corporate rights, the Circuit Court where the cor- poration has its principal place of business may, on complaint of a

creditor of the corporation, or a stockholder or member thereof,

appoint a receiver to take charge of its estate and effects, and to collect the debts and property due and belonging to the corporation, and

to pay the outstanding debts thereof, and to divide the money and

other properties that shall remain over among the stockholders or members.

Sec. 188. Obligations for damages on appointment of receiver.—

If a receiver be appointed upon an ex parte application, the court,

before making the order, may require from the plaintiff or person

filing the application for such appointment, an obligation with suffi- cient sureties, to be approved by the court, in an amount to be fixed

by the court, to the effect that the applicant will pay to the defendant

in the application all damages he may sustain by reason of the ap- pointment of such receiver and the entry by him upon his duties, in case the applicant shall have procured such appointment without

sufficient cause ; and the court may, in its discretion, at any time after

the appointment, require an additional obligation as further security

for such damages. The damages, if any, shall be ascertained by the court and, in its final judgment in the action, shall be decreed against

the plaintiff and the sureties on the obligation. Sec. 189. Oath and obligation of receivers.—Before entering

upon his duties, the receiver must be sworn to perform them faithfully, and with one or more sureties approved by the court or judge, execute an obligation to such person and in such sum as the court or judge may direct, to the effect that he will faithfully discharge the

duties of receiver in the action and obey the orders of the court therein. Sec. 190. Funds in the hands of receiver.—Funds in the hands of a

receiver may be invested upon interest by order of the court; but no such order shall be made except upon the written consent of all the parties to the action.
44 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

Sec. 191. Termination of receivership.—Whenever the court of its own motion, or on that of either party, shall determine, after due

notice and hearing, that the necessity for a receiver no longer exists,

it shall, on notice and hearing, settle the accounts of the receiver,

direct the payment of the funds in his hands, and the delivery of the

property by him held, to such persons as shall be adjudged entitled to receive them, and order his discharge from further duties as receiver.

Partition of real estate.

Sec. 192. Partition of real estate.—A person having or holding

real estate with others, in any form of joint tenancy, or tenancy in

common, may compel partition thereof in the manner hereinafter prescribed.

Sec 193. Where action for partition must he brought.—An action

to enforce partition shall be brought in the circuit wherein the

estate sought to be divided is situated. If the estate is situated in

two or more circuits, the action for partition of the whole may be in- stituted and maintained in any circuit wherein a part of such estate

is situated.

Sec. 194. The complaint.—The complaint in an action for partition shall set forth the nature and extent of the plaintiff's title and

contain an adequate discription of the real estate of which partition

is demanded, and name each tenant in common, coparcener, or other

person interested therein as defendants.

Sec. 195. The order of partition.—If, upon trial, the court finds

that the plaintiff has a legal right to any part of such estate, it shall order partition thereof in favor of the plaintiff, among all parties in

interest. Thereupon the parties may, if they are able to agree, make partition among themselves, by proper instruments of conveyance and the court shall confirm the partition so agreed upon bj^ all the parties

and enter the same of record, and the amicable partition so made

shall be valid and binding between the parties thereto. But if the

parties are unable to agree upon a partition, the court shall appoint

three judicious and disinterested land owners of the circuit in which

the land to be divided, or some portion of the same, is situated, to be

commissioners to make the partition, and shall order a writ of partition to issue to the commissioners commanding them to make partition of the estate and to set off to the plaintiff and to each party in

interest such . part and proportion of the estate as the court shall order. Sec. 19G. Duty of commissioners in making partition.—Before

making such partition, the commissioners shall take and subscribe an oath before the judge or clerk, or any district judge, that they

will faithfully perforin their duties as commissioners, which oaths
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 45

shall be filed in court with the other proceedings in the case. In

making such partition, the commissioners shall view and examine

the estate, after due notice to the parties to attend at such view and

examination, and shall hear the parties as to their preference in the

portion of the estate to be set apart to them and the comparative value

thereof, and shall set apart the estate to the several parties in such

lots or parcels as will be most advantageous and equitable, having

due regard to the improvement, situation, and quality of the different

parts thereof.

Sec 197. When partition of more than one tract is demanded.—

When partition of more than one tract is demanded the commissioners shall set off to each plaintiff or party in interest, his proper

proportion in each of the several tracts, unless the several tracts are owned by the same proprietors and in the same proportion in each

tract, in which case the whole share of any proprietor, in all the

several tracts, may be set off to such proprietor according to the best

discretion of the commissioners.

Sec. 198. Assignment or sale of the estate.—When it is made to appear to the commissioners that the estate, or a portion thereof,

cannot be divided without great inconvenience to the parties interested, the court may order it assigned to one of the parties, provided

he pays to the other party such sum of money as the commissioners

judge equitable. But if no one of the parties interested will take such

assignment and pay such sum, the court shall order the commissioners to sell such estate at public or private sale. In that case the

commissioners shall sell the estate agreeably to such order; but the

sale shall not be valid to pass the title to the property until confirmed

by the court, unless the order of sale itself shall otherwise provide.

Sec 199. Report of commissione?'S.—The commissioners shall make

full and accurate report to the court of all their proceedings as to partition, or assignment of the estate to one of the parties, or sale of

the same. But none of their proceedings shall be effectual to bind

the property or the parties until the court shall have accepted their

report and rendered judgment therein.

Sec '200. Action of the court upon commissioner*' report. —Upon

the filing of such report in court, the court shall, upon hearing,

accept the same and render judgment in accordance therewith; or

for cause shown it may recommit the report to the commissioners

for further report of facts ; or it may set aside the report and appoint new commissioners; or it may accept the report in part and reject

it in part, and make such final order and judgment as shall effectuate a fair and just partition of the estate or of its value, if sold or assigned as above provided between the several owners thereof.

Sec 201. Distribution of proceeds of sale.—The money or securities arising from a sale, or an election to take the estate in accordance

with the foregoing provision shall be distributed and paid, by orde?

803a—07—m 4
46 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

of the court, to the parties entitled thereto, in lieu of their respective

parts and proportions of the estate, according to their just rights

therein. Sec. 202. Accounting for rent and profits in action for partition.—

In an action for partition in accordance with the last nine preceding

sections, one tenant in common, or joint tenant, or coparcener, may

recover from another his just share of rent and profits received bysuch other tenant in common, joint tenant, or coparcener from the

estate according to the justice and equity of the case, and the final judgment shall include an allowance for such rents and profit as are found to be justly recoverable. Sec. 203. Costs and expenses to be equitably taxed.—The court

shall tax and apportion between the parties the costs and expenses

which accrue in the action, having regard to the interests of the

parties, and the benefit that each party may derive from a partition

and according to equity. An execution may issue therefor as in other

cases. Sec. 204. Fees of commissioners.—The commissioners appointed to make partition of real estate shall receive such compensation for the

time actually and necessarily employed in the performance of their

duties and in making their report to the court, as the parties may

agree to or the court fix, which fee shall be taxed as a part of the costs of the proceeding and apportioned as provided in the last preceding

section.

Sec. 205. Final judgment, its record and effect.—The record of the

final judgment in such action shall state definitely by metes and

bounds an adequate description, the particular portion of the estate that is assigned to each party to the action if partition is made; if the

whole estate is assigned to one of the parties upon his paying to the

other party the sum ordered by the court, the record shall state the fact of such payment and of the assignment of the estate to such

party making such payment.

If the estate is sold and the sale is confirmed by the court, the record

shall state the name of the purchaser or purchasers and a definite

description of the parcels of the estate sold to each purchaser. The

expense of such record shall be taxed as a part of the costs of the

action.

If actual partition of the land is made, the effect of the judgment

shall be to vest in each party to the action in severalty the portion of

the estate assigned to him. If the whole estate is assigned to one of

the parties upon his payment to the other party or parties of the sum

ordered by the court, the effect of the judgment, upon such payment

being made, shall be to vest in the party making the payment, in ac- cordance with the order of the court, the fee of the whole estate free

of any interest on the part of the other joint tenants, tenants in com- mon, or coparceners. If the estate is sold, and the sale confirmed by
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 47

the court, the effect of the record shall be, upon payment for the same

being made, to vest in the purchaser or purchasers the fee of the estate free from claims of any of the parties to the action. The record of

the judgment shall constitute an instrument of evidence in all questions as to the title to the lands or the estate which may be the subject

of the judgment in all courts, and shall be conclusive as to the rights

of all parties to the suit. But the right of appeal to the Supreme

Court shall appertain to actions for partition in the same manner and

to the same extent as to other actions. Sec. 206. Power of guardian in partition proceedings.—The guardian, or guardian ad litem, of a minor, or person of unsound mind,

may, on behalf of his ward, and with the approval of the court, do

and perform any act, matter, or things respecting the partition of an estate which such minor or person of unsound mind could do

in partition proceedings if he were of age or of sound mind.

Sec 207. Paramount rights and amicable partition not affected.—

Nothing herein contained shall be construed so as to injure, prejudice, defeat, or destroy the estate right, or title of any person claiming a tract of land, or any part thereof, by title under any other

person or by title paramount to the title of the joint tenants, tenants

in common, or coparceners by whom partition may have been made.

Nothing herein contained shall be construed as restricting or pre- venting joint tenants, tenants in common, or coparceners from making an amicable partition of their common estate by agreement and

suitable instrument of conveyance without recourse to an action for

that purpose.

Usurpation of office or franchise.

Sec 208. Usurpation of an office or franchise.—A civil action may

be brought in the name of the Government of the Canal Zone:

1. Against a person who usurps, intrudes into, or unlawfully holds

or exercises a public civil office or a franchise with the Canal Zone,

or an office in a corporation created by the authority of the Government of the Canal Zone;

2. Against a public civil officer who does or suffers an act which,

by the provisions of law, works a forfeiture of his office;

3. Against an association of persons who act as a corporation

within the Canal Zone, without being legally incorporated or without lawful authority so to act. Sec 209. Like actions against a corporation.—A like action may

be brought against a corporation:

1. When it has offended against a provision of an act for its crea- tion or renewal, or any act altering or amending such act;

2. When it has forfeited its privileges and franchises by non-user;

3. When it has committed or omitted an act which amounts to a

surrender of its corporate rights, privileges and franchises;
48 CODE OF CIVIL PROCEDUEE OF THE CANAL ZONE.

4. When is has misused a franchise, privilege, or right conferred

upon it by law or when it has exercised a franchise, privilege, or

right in contravention of law. Sec. 210. Action to be prosecuted !>>/ public officers.—The General

Counsel of the Isthmian Canal Commission or the Prosecuting

Attorney of the Canal Zone may commence any such action; and

when, upon complaint or otherwise, he has good reason to believe

that any case specified in the two preceding sections can be established

by proof he must commence such action.

Sec. 211. Stone. —The General Counsel of the Isthmian Canal Commission or the Prosecuting Attorney of the Canal Zone may, at his own

instance, bring such an action, or he may. on leave of the court in

which the action is to be commenced, or a judge thereof in vacation,

bring the action upon the relation of and at the request of another

person; but, if the action is brought at the request of and upon the

relation of another person, the officer bringing it may require an

indemnity for expenses and costs of the action to be given to him by

the party at whose request and upon whose relation the same is brought before commencing it. Sec. 212. .1// individual mitt/ commence such action.—A person

claiming to be entitled to a public office, unlawfully held and exercised by another, may bring an action therefor.

Sec. 213. What the complaint must set forth in such action,' judgment therein.—When the action is against a person for usurping an

office, the complaint shall set forth the name of the person who

claims to be entitled thereto, with an averment of his right to the same ; and that the defendant is unlawfully in possession of the same; and judgment may be rendered upon the right of the defendant, and also upon the right of the person so averred to be entitled, or only upon the right of the defendant, as justice requires. Sec. 214. Who may be made defendants.—All persons who claim

to be entitled to the same office or franchise may be made defendants

in the same action, to try their respective rights to such office or

franchise.

Sec. 215. Where such actions may be brought.—An action under

the last preceding seven sections can be brought only in the Supreme

Court or in the Circuit Court in which the defendant, or one of the

defendants, resides, or, when the defendant is a corporation, in the

circuit in which it is situated or has a place of business; but when

the General Counsel commences the action, it may be brought in a

Circuit Court or in the Supreme Court.

Sec. 216. Application for leave to commence action and notice to defendant.—Upon application for leave to commence such action,

in accordance with section two hundred eleven, the court or judge

may, in its or his discretion, direct notice thereof to be given to the

defendant orevious to granting such leave, and may hear the defend-
CODE OF CIVIL PROCEDURE OF THE CANAL ZONK. 49

ant in opposition thereto; and if leave be granted, entry thereof shall be made on the docket or the fact shall be indorsed by the judge on

the complaint, which shall then be filed. Sec. 217. Expediting proceedings.—An order may be made by the

court, or by the judge, shortening the time for filing pleadings and

for all other proceedings, in such cases as fixed by general rules, so as to secure the most expeditious determination of the matters in- volved in the litigation consistent with the rights of the parties.

Such action shall have precedence of any civil business pending in

the court. Sec. 218. Judgment where office, franchise, etc., found to have

been usurped.—When the defendant is found guilty of usurping,

intruding into, or unlawfully holding or exercising an office, franchise, or privilege, judgment shall be rendered that such defendant

be ousted and altogether excluded therefrom, and that the relator or plaintiff, as the case may be, recover his costs. Such further judgment may be rendered as is provided in section two hundred thirteen. Sec. 219. Judgment where director of a corporation found to have

teen illegally elected.—-When the action is brought against a director

of a corporation and the court finds that at his election either illegal votes were received or legal votes rejected, or both, sufficient to change

the result, judgment may be rendered that the defendant be ousted,

and of induction in favor of the person who was entitled to have been

declared elected at such election. Or, in such case, the court may, in

its discretion order a new election to be held at a time and place and

by judges of election appointed by the court; notice of such election

and nomination of the judges shall be given for the time and in the manner provided by law for notice of elections of directors of such

corporations ; the order of the court shall become obligatory upon the

corporation and its officers when a duly certified copy thereof is served

upon its secretary personally or left at its principal office; and the court may enforce its order by attachment or in any other manner it deems necessary. Sec. 220. Rights of person adjudged to be entitled to office.—If

judgment be rendered in favor of the person averred to be entitled

to the office he may, after taking the oath of office and executing any

official bond required by law, take upon himself the execution of the

office, and he shall immediately thereafter demand of the defendant

all the books and papers in his custody or within his power appertaining to the office from which he has been ousted. Sec. 221. How judgment of court enforced.—If such defendant re- fuse or neglect to deliver over any such book or paper pursuant to demand, he shall be deemed guilty of a contempt of court and shall be fined in any sum not exceeding twenty-five hundred dollars and

imprisoned until he complies with the order of the court, or is otherwise discharged by due course of law.
50 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

Sec. 222. Action for damages against person, ousted.—Such person

ma}', at any time within one year after date of such judgment, bring an action against the party ousted and recover the damages sustained

hy reason of his usurpation.

Sec. 22-3. Judgment when corporation has forfeited its rights.—

When, in any such action, it is found and adjudged that a corporation has, by an act done or omitted, surrendered, or forfeited its cor- porate rights, privileges, and franchise, or has not used the same during the term of five years, judgment shall be entered that it be ousted

and excluded therefrom and that it be dissolved ; but when it is found

and adjudged that a corporation has offended in any matter or manner which does not by law work as a surrender or forfeiture, or has

misused a franchise or exercised a power not conferred by law, but

not of such a character as to work a surrender or forfeiture of its franchise, judgment shall be rendered that it be ousted from the con- tinuance of such offense or the exercise of such power.

Sec. 224. Appointment of receiver when corporation dissolved.—

The court rendering a judgment dissolving a corporation shall ap- point a receiver of all its assets, agreeably to section one hundred

eighty-five, who shall proceed to administer the same in accordance

with the provisions of sections one hundred eighty-six to one hundred

ninety, inclusive.

Sec. 225. How receiver placed in possession.—An officer of such

corporation who refuses or neglects, upon demand, to deliver over to the receiver all money, property, books, deeds, notes, bills, obligations,

and papers of every description and within its power or control, be- longing to the corporation, or in any wise necessary for the settlement

of its affairs, or the discharge of its debts and liabilities, shall be

deemed guilty of a contempt of court, and shall be fined not exceeding twenty-five hundred dollars, and imprisoned until he complies

with the order of the court, or is otherwise discharged by due course of law ; and he shall be liable to the receiver for the value of all money

or other things so refused or neglected to be surrendered, together

with all damages that may have been sustained by the stockholders

and creditors of the corporation, or any of them, in consequence of

such neglect or refusal. Sec. 22G. Judgment for costs.—If judgment be rendered in such

action against a corporation or against a person claiming to be a corporation, the court may render judgment for the costs against the

directors or other officers of the corporation, or against the person

claiming to be the corporation. If judgment be rendered for the

defendant he shall recover his costs from the plaintiff, if the plaintiff

be not the Government.

Sec. 227. Limitations.—Nothing herein contained shall authorize an action against a corporation for forfeiture of charter, unless the
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 51 same be commenced within five years after the act complained of was

done or committed ; nor shall an action be brought against an officer to be ousted from his office unless within one year after the cause of

such ouster, or the right to hold the office, arose.

Certiorari proceedings.

Sec. 228. Certiorari proceedings.—When the ground of the complaint in an action in a Circuit Court is that an inferior tribunal,

board, or officer exercising judicial functions, has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor any plain, speedy, and adequate remedy, and the court, on trial, finds

the allegations of the complaint to be true, it shall render a judgment

ordering such inferior tribunal, board, or officer, or other person having the custody of the record or proceedings, at a specified time and

place, to certify to the court a transcript of the record and the proceedings (describing or referring to them with convenient certainty)

that the same may be reviewed by the court ; and requiring the party,

in the meantime, to desist from further proceedings in the matter

to be reviewed, if, in the judgment of the court, a stay ought to be

granted.

Sec. 229. Service of order.—A certified copy of the judgment and

order of the court, as provided in the preceding section, shall be

served upon such inferior tribunal, board, or officer in such manner

as the court may direct. Sec 230. Enforcement of order.—If such order is not obeyed, the court may enforce it by attachment and by fine and imprisonment as for contempt.

Sec. 231. Final proceedings in certiorari.—AVhen the proceedings

complained of have been fully certified, the court shall hear the

parties and determine whether the inferior tribunal, board, or officer has regular^ pursued its authority ; and if it finds that such inferior

tribunal, board, or officer has not regularly pursued its authority, it shall thereupon give final judgment, either affirming, or annulling, or modifying the proceedings below, as the law requires. Sec. 232. Certifying judgment to inferior tribitnal.—A cop}r of the

final judgment, signed by the clerk, shall be transmitted to the

inferior tribunal, board, or officer having the custod}r of the record

or proceedings certified up. Mandate.

Sec. 233. Mandate.—When the complaint in an action in a Circuit

Court alleges that any inferior tribunal, corporation, board, or person

unlawfully neglects the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or
52 CODE OF CIVIL PEOCEDURE OP THE CANAL ZONE.

unlawfully excludes the plaintiff from the use and enjoyment of a

right or office to which he is entitled and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or

person, and the court, on trial, finds the allegations of the complaint

to be true, it may, if there is no other plain, speedy, and adequate

remedy in the courts of law, render a judgment granting a per- emptory order against the defendant, commanding him, immediately

after the receipt of such order, or at some other specified time, to do

the act required to be done to protect the rights of the plaintiff.

Sec. 234. Damages in such action.—If judgment be given for the

plaintiff, he may recover in the same action the damages which he

has sustained, as determined by the court, by reason of the wrongful

acts of the defendant, together with costs. Sec 235. Service of the order.—A certified copy of the judgment

and order of mandate shall be served upon the defendant in such manner as the court may direct. Sec 23G. Enforcement of order of mandate.—-When a peremptory

mandate has been issued to and served upon any inferior tribunal,

corporation, board, or person, as provided in the preceding section,

if it be made to appear to the court that any member of such tribunal,

corporation, or board, or such person upon whom the order has been

personally served, has, without just excuse, refused or neglected to obey the same, the court may, upon motion and notice to the defendant, and hearing, impose a fine not exceeding five hundred dollars

upon the person offending.

In case of persistence in a refusal of obedience, the court may

order the party to be imprisoned until the order is obeyed, and may

make any orders necessary and proper for the complete enforcement

of the mandate.

Prohibition.

Sec. 237. Prohibition.—When the complaint in any action pending

in any Circuit Court alleges that the proceedings of any inferior

tribunal, corporation, board, or person, whether exercising functions

judicial or ministerial, were without or in excess of the jurisdiction of

such tribunal, corporation, board, or person, and the court, on trial, shall find that the allegations of the complaint are true, and that

the plaintiff has no other plain, speedy, and adequate remedy in the

ordinary course of law, it shall render a judgment in favor of the

plaintiff, including an order commanding the defendant absolutely

to desist or refrain from further proceedings in the action or matter

specified therein.

Sec 238. Service of judgment and order.—A certified copy of the

judgment and order of prohibition shall be served upon the defendant in such manner as the court shall direct.
CODE OF CIVIL PKOCEDURE OF THE CANAL, ZONE. 53

Sec. 239. Enforcement order of prohibition.—An order of prohibition may be enforced in the same manner as is provided for the

enforcement of an order of mandate.

Sec 240. Preliminary injunctions in certiorari, mandate, and

prohibition proceedings.—A preliminary injunction in certiorari,

mandate, and prohibition proceedings may be granted by the judge

if, in his judgment, such injunction is necessary for the preservation

of the rights of the parties, pending litigation. Sec. 241. Expediting such proceedings.—The court may in its discretion, make such orders as it deems necessary for expediting

proceedings in actions praying for certiorari, mandate, or prohibition, and the judge may make such orders in vacation, as well as in

term time.

Contempt.

Sec 242. What contempt of court may be punished summarily.—

A Circuit Court may punish summarily, by fine not exceeding one hundred dollars, or by imprisonment not exceeding ten days, or both, a person guiltj^ of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice, including

the refusal of a person present in court to be sworn as a witness or

to answer as a witness when lawfully required.

Sec 243. What other acts are contempts of court.—A person guilty

of any of the following acts may be punished as for contempt

1. Disobedience of or resistance to a lawful writ, process, order,

judgment, or command of a court, or injunction granted by a court or judge;

2. Misbehavior of an officer of the court in the performance of

his official duties, or in his official transactions;

3. A failure to obey a subpoena duly served;

4. The rescue, or attempted rescue, of a person or property in the

custody of an officer by virtue of an order or process of the court held by him.

Sec 244. When accused entitled to be heard.—In cases under the

last section, a charge in writing shall be filed with the clerk, an entry

thereof made upon the docket, and an opportunity given to the

accused to be heard, by himself or counsel ; but this section shall not

be so construed as to prevent the court from issuing process to bring the accused party into court, or from holding him in custody

pending such proceedings.

Sec 245. Bight of accused to bail.—In such proceedings if the hearing is not ordered to be held forthwith, the court may fix the amount

of an obligation to be given by the accused, with surety to the satis- faction of the court, for the appearance of the accused to answer the

charge; and upon the approval of such obligation the accused shall be released from custody.
54 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

Sec. 246. Trial of the charge.—Upon the day fixed for the trial the court shall proceed to investigate the charge and shall hear any

answer or testimony which the accused may make or offer. Sec. 247. Punishment if found guilty.—The court shall then determine whether the accused is guilty of the contempt charged ; and, if

it be adjudged that he is guilty, he may be fined not exceeding five hundred dollars, or imprisoned not more than six months, or both.

If the contempt consists in the violation of an injunction, the person

guilty of such contempt may also be ordered to make complete resti- tution to the party injured by such violation.

Sec. 248. Imprisonment until order obeyed.—When the contempt

consists of the omission to do an act, which is yet in the power of the

accused to perforin, he may be imprisoned until he performs it. Sec. 249. Proceedings when party released on bail fails to appear.—

If the party released on bail fail to appear upon the day named, the court may issue another order of arrest, or may order the obligation

for his appearance to be prosecuted, or both ; and, if the obligation be

prosecuted, the measure of damages shall be the extent of the loss or injury sustained by the aggrieved party by reason of the misconduct for which the contempt was prosecuted and the costs of the

proceedings, and such recovery shall be for the benefit of the party

injured.

Sec. 250. Right of court who committed prisoner to release him.—

When a person has been imprisoned for contempt, the court or judge

who made the order may discharge him from imprisonment, when it shall be made to appear to the court or judge that the public interests

will not suffer thereby.

Sec. 251. Final judgment.—The judgment and orders of a Circuit

Court, made in cases of contempt, may be reviewed by the Supreme

Court; but execution of the said final judgment and orders shall not

be suspended until there is filed by the person in contempt, in the court rendering the judgment or making the order, an obligation with

sureties to the acceptance of the judge, in an amount to be by him

fixed, conditioned that he will prosecute an appeal with all due dili- gence and that if the judgment be against him he will abide and

perform the order or judgment. But such review shall be had only

after final judgment in the action in the Circuit Court, and when

the cause has regularly passed to the Supreme Court, as in this Code

provided.

The Supreme Court shall hear said cause and dispose of the same

at the first term of the Court at which said appeal could be regularly

heard.

Foreclosure of mortgage.

Sec. 252. Where action for foreclosure of real-estate mortgage must

be instituted.—An action for the foreclosure of a mortgage or other
CODE OF CTVTL PROCEDURE OF THE CANAL ZONE. 55

incumbrance upon real estate, or an interest therein, must be brought

in the circuit in which the land or some part thereof lies. Sec 253. The complaint in an action for foreclosure of a real-estate mortgage.—In an action for foreclosure of a real-estate mortgage, or other incumbrance upon real estate the complaint shall set forth the

date and due execution of the mortgage, its assignments, if any, the names and residences of the mortgagor and mortgagee, a description

of the mortgaged premises, a statement of the date of the note or other obligation secured by the mortgage, and the amount claimed to be unpaid thereon, and the names and residences of all persons having or claiming an interest in the premises subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action. Sec. 254. Trial and judgment in foreclosure suit.—If upon trial in

such action the court shall find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the

mortgage debt or obligation, including interest and costs, and shall

render judgment for the sum so found due, and order that the same

be paid into court on or before the first day of the next term of the court immediately succeeding the one at which such order was made,

and that in default of such payment the land shall be sold to realize

the mortgage debt and costs. Sec 255. Sale of the mortgaged property.—When the defendant,

after being directed to do so, as provided in the last preceding section,

fails to pay the principal, interest, and costs at the time directed in

the order, the court shall order the property to be sold in the manner

and under the regulations that govern sales of real estate under exe- cution; but such sale shall not affect the rights of persons holding

prior incumbrances upon the same estate or a part thereof. The sale,

when confirmed by decree of the court, shall operate to divest the

rights of all the parties to the action and to vest their rights in the

purchaser. Should the court decline to confirm the sale, for good

cause shown, and should set it aside, it shall order a resale in accord- ance with law.

Sec 256. Disposition of proceeds.—The money arising from the

sale of mortgaged property, under the regulations hereinbefore prescribed, shall, after deduction of costs of sale, be paid to the person

foreclosing the mortgage, and when there shall be an}' surplus, after

paying off such mortgage or other incumbrance, the same shall be

paid to junior incumbrancers in the order of the priority, to be

ascertained by the court, or if there be no such incumbrances or there

be a surplus after payment of such incumbrances, then to the mortgagor or his agent, or to the person entitled to it. Sec 257. Disposition of proceeds in case the debt is not all due.—

If the debt for which the mortgage or incumbrance was held is not
56 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

all due, so soon as sufficient of the property has been sold to pay the

amount due, with costs, the sale must cease; and afterwards, as often

as more becomes due for principal or interest, the court may, on

motion, order more to be sold. But if the property can not be sold

in portions without injury to the parties, the whole shall be ordered

to be sold iu the first instance and the entire debt and costs paid,

a rebate of interest being made where such rebate is proper.

Sec. 258. Judgment for balance after sale of property.—Upon the

sale of an}- real property, under a decree for a sale to satisfy a mortgage or other incumbrance thereon, if there be a balance due to the

complainant after applying the proceeds of the sale, the court, upon

motion, shall give a decree against the defendant for any such bal- ance for which, by the record of the case, he may be personally liable to the plaintiff, upon which execution may issue immediately if the

balance is all due at the time of the rendition of the decree; otherwise

the plaintiff shall be entitled to execution at such time as the balance

remaining would have become due by the terms of the original contract, which time shall be stated in the decree. Sec. 259. Final record.—The final record in the action shall set forth, in brief, the petition and other pleadings, judgment, orders,

the proceeding under the order of sale, and the decree confirming the same, and the name of the purchaser, with a description of the estate by him purchased.

Manual delivery of personal property.

Section 260. Delivery of litigated personal property to plaintiff.—

Whenever the complaint in an action shall pray for the recovery of

the possession of personal property, the plaintiff may, at the time of

instituting the action, or at any time before answer, file a notice

claiming the delivery of such property to him, in the manner hereinafter provided.

Sec. 261. Affidavit and obligation to be filed by plaintiff.—Where

a delivery is claimed an affidavit must be made by the plaintiff, or by

some one in his behalf, showing

1. That the plaintiff is the owner of the property claimed (particularly describing it) or is entitled to the possession thereof;

2. That the property is wrongfully detained by the defendant;

3. The alleged cause of detention thereof according to his best

knowledge, information, and belief;

4. That it has not been taken for a tax assessment or fine pursuant

to law, or seized under an execution, or an attachment against the

property of the plaintiff, or. if so seized, that it is by law exempt

from such seizure;

5. The actual value of the property.
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 57

The plaintiff shall also at the same time file with the clerk a written

obligation of the plaintiff, executed by two or more sureties approved

by the court, to the effect that they are bound to the defendant in

double the value of the propert}', as stated in the affidavit for the

prosecution of the action, for the return of the property to the defendant, if the return thereof be adjudged, and for the payment to him of

such sum as may in the cause be recovered against the plaintiff. The

affidavit and obligation shall be filed with the clerk of the court in

which the action is pending.

Sec. 262. Warrant of seizure.—Upon the filing of such affidavit and obligation it shall be the duty of the clerk, at the request of the

plaintiff or his attorney, to issue, under the seal of the court, a warrant requiring the officer of the court forthwith to take into his cus- tody the personal property alleged to be wrongfully detained.

Sec 263. Service of warrant.—Upon receiving the warrant named

in the last section the officer must forthwith take the property described in the warrant, if it be in the possession of the defendant or

his agent, and retain it in his custody. If the property, or any part

thereof, be concealed in a building or inclosure, the officer must publicly demand its delivery; if it be not delivered, he must cause the

building or inclosure to be broken open and take the property into

his possession. When the officer has taken property as herein provided, he must keep it in a secure place and ultimately deliver it to the party entitled thereto, upon receiving his fees for taking and his

necessary expenses for keeping the same. He must, without delay, serve on the defendant a copy of the notice, undertaking, and warrant, in the manner provided by law for service of process. Sec 264. Proceedings when objection is made to the sufficiency of

the obligation.—The defendant may, within two days after the service of a copy of the affidavit and undertaking and warrant, give notice

to the clerk that he excepts to the sufficiency of the obligation or of

the sureties. If he fails to do so, he is deemed to have waived all objections to them. When the defendant excepts, the clerk, on notice

to both parties, and on hearing, shall investigate the sufficiency of

the sureties as to their financial responsibility. If the clerk finds the

obligation to be insufficient in amount, he shall require a new obligation with sufficient sureties forthwith. In either case, if the plaintiff

does not forthwith furnish a sufficient obligation with sufficient sureties, the clerk shall make an order for the return of the property to the defendant, and it shall be returned. If the defendant except

to the obligation or to the sureties, he can not reclaim the property

as provided in the next section. Sec. 265. Delivery of property to the defendant.—At airy time

before the delivery of the property to the plaintiff, as in this section
58 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

provided, the defendant may, if he do not except to the obligation or sureties of the plaintiff, require the return thereof, upon delivering

to the clerk a written obligation to the plaintiff executed by him,

with two or more sufficient sureties, to the effect that they are bound

in double the value of the property as stated in the affidavit of the

plaintiff, for the delivery thereof to the plaintiff, if such delivery

be adjudged, and for the payment of such sum to him as may be

recovered against the defendant. If a return of the property be not

so required within five days after the taking and service of notice to the defendant, it must be delivered to the plaintiff, as' herein provided.

Sec. 266. Defendant's obligation and sureties.—The defendant's

sureties, upon notice to the plaintiff, not less than two nor more than

five days, must justify before the clerk, and upon such justification

the officer must deliver the property to the defendant. If the defendant's sureties, or others in their place, fail to justify at the time and

place appointed, the officer must deliver the property to the plaintiff.

Sec. 267. Responsibility of officer and, clerk.—The officer will be

responsible for the property until the same is delivered to the plaintiff or defendant, as herein provided. The clerk will be responsible

for the sufficiency of the sureties at the time he shall approve them,

but not for their sufficiency at a subsequent date should their financial standing be thereafter changed.

Sec. 268. // property claimed by third person.—If the property

taken be claimed by any other person than the defendant or his agent,

and such person make an affidavit of his title thereto or right to the

possession thereof, stating the grounds of such right or title, and

serve the same upon the officer while he has possession of the property, the officer is not bound to keep the property, or deliver it to the plaintiff, unless the plaintiff on demand of him or his agent,

indemnify the officer against such claim by an obligation with two

sufficient sureties; and no claim to such property or damage for its seizure, by any other person than the defendant or his agent, shall be

valid against the officer unless so made. But nothing herein con- tained shall prevent such third person from vindicating his claim to the property by any proper action.

Sec. 269. Return of papers.—The officer must file the warrant

with his proceedings indorsed thereon, with the clerk of the court within twenty days after taking the property mentioned therein.

Sec. 270. Final judgment.—On trial, the court shall adjudge the

property to the plaintiff, or to the defendant, as the law and facts

warrant, together with such damages and costs as either party establishes a right to recover.
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 59

Chapter X.

TO ESTABLISH TITLES TO REAL PROPERTY.

Sec. 271. Power of Circuit Courts to establish title to real estate.—

Any and all Circuit Courts in the Canal Zone shall have power to inquire into the condition of any title of or interest in any land in

the circuit in which the court is held and to make all such orders,

judgments and decrees as may be necessary to determine and establish said title or interest, legal or equitable, against all persons known

or unknown, and all liens existing on such lands, whether by statute,

judgment, mortgage, deed of trust or otherwise.

Sec 272. Who may sue.—It shall be lawful for any person claiming title to any land in such circuit and for all claiming under such

person, to file a petition in the Circuit Court in which the land5 .or a part thereof, are situated praying for a decree establishing and con- firming his said title. By resolution of the Isthmian Canal Commission, the General

Counsel of said Commission, or the Prosecuting Attorney of the

Canal Zone, or other legal officer of said Commission named in said

resolution, may file such petition in any Circuit Court of a circuit in

the Canal Zone wherein lands are situated, the title of which is claimed to be either in the United States Government, the Isthmian

Canal Commission, or the Panama Railroad Company.

Sec 273. Contents of petitio?i, verification-.—Any number of parcels of land may be included in one petition, or separate petitions may

be filed, as the petitioner may elect. Said petition shall state clearly the description of said lands, the

character and extent of the estate claimed by the petitioner, and

from whom, and when, and by what mode he derived his title thereto.

It shall give the names of all persons owning or claiming any estate or interest in said lands, or any part thereof, and also all persons who

shall be in possession of said land, or any part thereof, and also all persons to whom any such lands shall have been conveyed, and their

residences, so far as the same are known to said petitioner, and if no

persons are known to said petitioner it shall be so stated in said petition. Should said petition be filed by a private party it shall be verified

by the said petitioner or by the agent of said petitioner ; and the party

so swearing falsely shall be deemed guilty of perjury and punished

accordingly, and shall be liable in damages to any person injured by

such false statements, to be recovered in an action in any court having

jurisdiction thereof.

If said petition is filed under the direction of the Isthmian Canal

Commission the same need not be verified.
60 CODE OF CIVIL PROCEDUKE OF THE CANAL ZONE.

Sec. 274. Summons.—All persons so named in said petition shall be made defendants, and shall be notified of said suit by summons, if residents of the Canal Zone, in the same manner as is now or may

hereafter be required by law: Provided, That the notice specified in

this act shall be the only publication notice required, in either the

case of residents, non-residents or otherwise. All other persons shall be deemed and taken as defendants, by the name or designation of

"All whom it may concern."

Sec. 275. Clerics docket, notice.—It shall be the duty of the clerk

of the court in which said petition is filed, to enter in a separate book

or books to be kept for that purpose, the name of the petitioner and

defendant, the date of filing said petition, and a description of all the

lands included therein, which record shall at all times be open to the

public. All lands in each separate administrative district shall be

entered on the same page, or consecutive pages, with an index to said book or books, showing on what page any such separate administrative district may be found. Said clerk shall also, in all cases, cause publication of notice to be made of the filing of said petition,

which notice shall be entitled " Land title notice " and shall be

substantially as follows

A B, C D, etc. (here giving the names of all known defendants, if any) and to all whom it may concern: Take notice.—That on the day of A. D. 19__ a petition was filed by the undersigned, in the Circuit Court of

Judicial Circuit, of the Canal Zone, to establish his title to the following described land (here insert a full description of the land in said

petition). Now, unless you appear at the term of said court (naming the first term, after thirty days from the first insertion

of said notice) and show cause against such application, said petition

shall be taken for confessed, and the title or interest of said petitioner

will be deemed and established according to the prayer of said petition, and you forever barred from disputing the same. E F, Petitioner.

G P, Solicitor.

Said notice shall be published once a week for three weeks succes- sively in a newspaper or newspapers of general circulation published

in the Canal Zone, or in the Cities of Colon or Panama, and the first insertion shall be at least thirty days prior to said term of court. Sec. 276. Demurrer, answer.—Any person interested may oppose

any such petition, and file his demurrer or answer thereto on or before

the third day of the term of court named in said publication notice,

unless the time be extended by order of court. Said answer shall admit, confess or avoid or traverse all the material allegations of the

petition or ask for affirmative relief, and shall, except when made by

guardians ad litem, be verified by the affidavit either of the defendant

or his agent, in the same manner as above required for the petition.

Said answer shall have no other nor greater weight than the petition.
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 61

Sec. 277. Further procedure.—If no demurrer or answer shall be

filed by the third day of said term, or by the day allowed by the order

of said court, as above provided, the petition may be taken for confessed, and a decree entered according to the prayer of said petition,

upon proof of the facts stated in said petition ; but if any person

shall file an answer, as aforesaid, to such petition, the court may hear

evidence, or order a reference to a referee or commissioner to take

evidence and report, under the procedure of Chapter VII of this code.

If the petition includes more than one parcel of land and no de- murrer or answer shall be filed as to some of said parcels, the court, may enter a decree, pro-confesso, as to those parcels as to which no

demurrer or answer shall be filed, and hear evidence or order a refer- ence's to the remaining parcels.

Sec 278. Decide of court, not to affect liens.—It shall be competent

for said courts, in all such decrees, whether pro-confesso or on the

report of any referee or special commissioner or othewise, to deter- mine and decree in whom the title in any or all of the lands described

in said petition is vested, whether in the petitioner, or in any other of

the parties before the court ; but said decree shall not in anywise affect any lien or liens to which said title may be subject, and which may be

by mortgage, deed of trust, judgment, statute, liens, or otherwise, but

shall leave all such liens to be ascertained or established in some other

proceeding, or to be enforced as the parties holding them may see fit. Sec 279. Reopening decree, subsequent action.—Said decree of

said court, whenever entered, shall be forever binding and conclusive: Provided, That any decree shall be subject to be opened, modified, or set aside on appeal or writ of error, sued out within two

years after the entry of such decree: And provided further, That

insane persons and minors shall have two years after their disabilities are removed to prosecute a writ of error upon said decree:

Provided further, That any decree entered upon any petition or answer, asking for affirmative relief which does not make defendant,

by name, all persons who shall be in possession of such land, or any part thereof, at the time of the filing of such petition or which

does not make defendant, by name, all persons to whom any such

land shall have been conveyed, if said persons' names can be ascer- tained, shall be absolutely void as to such person omitted, but

shall be final and conclusive as to all others: And provided furtliei-. That any defendant who shall not be actually served with a sum- mons in the suit in which such decree may be rendered, shall have

allowed to him one year after the entry of such decree within which,

upon petition to the court rendering the same, to have the said decree

vacated as to him. and if it shall appear upon the bearing of such

petition that, such decree ought not to have been made against such

defendant, the same may be vacated, set aside, altered or modified as 803a—07—m 5*
62 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE

shall appear just, otherwise the same shall be ordered to stand

affirmed against said defendant. Provided this Section shall not be

so construed as to prevent the complainant from beginning a subsequent action against any person whomsoever in possession of such

land and whose presence on said land was unknown, or could not have

been, by reasonable diligence, discovered at the time the action was

begun.

Sec. 280. Representatives. —Executors, administrators, conservators, guardians and trustees shall be entitled to proceed, under this

act, in behalf of the interest and right they represent.

Chapter XI. ne exeat.

Sec. 281. *\Yhen frit may issue.—Writs of ne exeat republica may

hereafter be granted by the circuit court, as Avell in cases where the

debt or demand is not actually due, but exists fairly and bona fide in expectancy at the time of making the application, as in cases where

the demand is due; and it shall not be necessary, to authorize the

granting of such writ of ne exeat, that the applicant should show

that his debt or demand is purely of an equitable character.

Sec. 282. In favor of co-obligors or co-debtors.—In case of joint, or

joint and several obligors or debtors, if one or more of them be about

to remove without the Canal Zone, taking their property with them,

leaving one or more co-obligors or co-debtors bound with them for

the payment of any sum of money, or for the delivery of any article of property, or for the conveyance of land at a certain time, which

time shall not have arrived at the time of such intended removal, such

co-obligor or co-debtor who remains shall be entitled, upon application, to a writ of ne exeat, to compel the co-obligor or co-debtor who

is about to remove to secure the payment of his part of the sum to be

paid, or the delivery of the property, or to convey, or to join in the

conveyance of the land. The writ of ne exeat may also issue in cases of security, on application of a surety, against the principal or co- surety, when the obligation or debt shall not yet be due, and the

principal or co-surety is about to remove out of the Canal Zone.

Sec. 283. Procedure when (/ranted by judge.—When a writ of ne

exeat is granted by a judge, he shall direct the clerk of the court

to which the writ is to be returnable to issue the same.

Sec. 284. Returnable where.—All writs of ne exeat shall be return- able into the court out of which they issue. Sec. 285. When judge absent.—When no judge authorized to issue

writs of ne exeat is present in the circuit, or being present, is unable

or incapacitated to act. any other Circuit judge may order the

issuing of such writs.
CODE OF CIVIL PROCEDURE OP THE CANAL ZONE. 63

Sec. 286. Bill or petition necessary—affidavit—bond, suit on.—

No writ of ne exeat shall be granted but on petition filed, and affidavit to the truth of the allegations therein contained. Upon the granting

of any such writ, the judge shall indorse or cause to be indorsed upon

the petition, in what penalty bond and security shall be required of

defendant. Said judge shall also take* or cause to be taken of the

complainant, before the writ shall issue, bond with good and sufficient surety, in such sum as the judge shall deem proper, conditioned that

the said complainant will prosecute his petition with effect, and that

he will reimburse to the defendant such damages and costs as he shall

wrongfully sustain by occasion of the said writ. If any defendant

to such writ of ne exeat shall think himself aggrieved, he may bring

suit on such bond, and if, on trial, it shall appear that such writ of ne exeat was prayed for without a just cause, the person injured shall recover damages, to be assessed as in other cases on penal bonds.

Sec. 287. Form of writ—bond by defendant—temporary departure no breach.—The writ of ne exeat shall contain a summons for the

defendant to appear in the proper court, and answer the petition, and

upon the writ being served upon the said defendant, he shall give

bond, with surety in the sum endorsed on such writ, conditioned that

he will not depart the Canal Zone without leave of the said court,

and that he will render himself in execution to answer any judgment

or decree which the said court may render against him ; and in default

of giving such security, he may be committed to jail, as in other cases, for the want of bail. No temporary departure from the Canal Zone

shall be considered as a breach of the condition of the said bond, if he

shall return before personal appearance shall be necessary to answer

or perform any judgment, order or decree of said court. Sec. 288. Surrender of defendant by surety.—The surety in any

bond for the defendant, as aforesaid, may, at any time before the

said bond shall be forfeited, surrender the said defendant, in exoneration of himself, in the same manner that bail may surrender their

principal, and obtain the same discharge.

Sec. 289. Proceedings on return of writ.—On the return of the writ

of ne exeat, if the same shall have been duly served, the court shall

proceed therein as in other cases, if the time of performance of the

duty or obligation of the defendant has expired; if not, then the

proceeding shall be stayed until it has expired.

Sec. 290. Quashing or setting aside writ.—Nothing contained in

the preceding section shall prevent the court from proceeding at any

time to determine whether the writ ought not to be quashed or set aside. The writ may be set aside at the end of six months upon the

defendant's turning into court such money or property as he possesses, excluding necessary wearing apparel, and filing an affidavit that he is possessed of no further property.
64 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

Chapter XII.

RULES OF EVIDENCE AFFIDAVITS AMD DEPOSITIONS PERPETUATION OF

TESTIMONY.

Rules of evidence.

Sec. 291. Preponderance of evidence, how to determine.—In determining where the preponderance or superior weight of evidence on

the issues involved lies, the witnesses, their manner of testifying, their

intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they tes- tify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility, so far as the same may legitimately appear upon the trial, must be considered.

The court may also consider the number of witnesses, though the

preponderance is not necessarily with the greatest number.

Sec. 292. The same rules in all cases in all courts of the Zone.—The

rules of evidence shall be the same in all courts of the Canal Zone and

upon every trial, unless otherwise expressly provided.

Sec. 293. Matter judicially recognized.—The existence and terri- torial extent of the Canal Zone, its forms of government, and symbols

of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of

the United States and of the Canal Zone, the seals of the several

departments of the United States, and the states of the Union, and of

the Canal Zone and Republic of Panama, public and private, and offi- cial acts of the legislative, executive, and judicial departments of the

United States and of the Canal Zone, the laws of nature, and the measure of time, the geographical divisions and political history of

the world, and all similar matters of public knowledge shall be judicially recognized by the court without the introduction of proofs; but

the court may receive evidence upon any of these subjects, when it shall find it necessary for its own information, and may resort for its aid to appropriate books,' documents, or evidence.

Sec. 294. Personal knowledge and hearsay evidence.—A witness can testify to those facts only which he knows of his own knowledge

that is, which are derived from his own perception, except in those

few express cases in which his opinions or inferences from the declarations of others, as hereinafter stated, are admissible.

Sec. 295. Rights of party not prejudiced, by act, declaration, or omission of another.—The rights of a party can not be prejudiced by

the declaration, act, or omission of another, except by virtue of a particular relation between them, as hereinafter stated; therefore

proceedings against one can not affect another.
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 65

Sec. 296. Exception where one derives title to real property from

another.—Where, however, one derives title to real property from

another, the declaration, act, or omission of the latter, while holding

the title, in relation to the property, is evidence against the former.

Sec 297. Exception where declaration, act, or omission forms part

of the transaction.—Where, also, the declaration, act, or omission

forms part of a transaction, which is itself a fact in dispute, or evi- dence of that fact, such declaration, act, or omission, is evidence as part of the transaction. Such evidence may be termed admissible

as constituting a part of the res gestae.

Sec 298. Where dispute relates to obligation or duty of third person, prima facie evidence.—Where the question in dispute between the

parties is the obligation or duty of the third person whatever would

be the evidence for or against such person is prima facie evidence

between the parties; prima facie evidence being that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence.

Sec 299. Hearsay evidence of questions of pedigree.—The declaration, act, or omission of a member of a family who is not living, or

is outside the jurisdiction of the Canal Zone, is admissible as evidence

of pedigree of relationship, or family genealogy in cases where pedigree, relationship, or family genealogy are questions at issue. Sec 300. Declaration, act, or omission of deceased person against

his interest.—The declaration, act, or omission of a deceased person,

having sufficient knowledge of the subject, against his pecuniary

interest, is admissible as evidence to that extent against his successor

in interest. Sec 301. When part of acts, declaration, or writing given in

evidence, the remainder available to opposite party.—When part of an act, declaration, conversation, or writing is given in evidence by

one party, the whole of the same subject may be inquired into by

the other, and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation

or writing which is necessary to make it understood, may also be

given in evidence.

Sec 302. Original writing must ordinarily be produced.—There

can be no evidence of the contents of a writing, other than the writing itself, except in the following cases:

1. When the original has been lost or destroyed, in which case proof of the loss or destruction must first be made

2. When the original is in possession of the party against whom

the evidence is offered, who fails to produce it after reasonable notice;

3. When the original is a record or other document in the custody

of a public officer;
66 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

4. When the original has been recorded and a certified copy of the

record is made evidence by law

5. When the original consists of numerous accounts or other documents, which cannot be examined in court without great loss of time

and the fact sought to be established from them is only the general

result of the whole.

6. The books of account and documents of merchants, corporations, and business men kept in the regular course of business and

shown to be genuine and the entries therein to have been made in

the ordinary course of business before the possibility of litigation

arising out of the items to which they relate, shall be prima facie

evidence of what they purport to state, and it shall not be necessary

under these circumstances to produce the parties making the original

entries. Sec. 303. Written agreement presumed to contain all the terms of

the agreement.—When the terms of an agreement have been reduced

to writing by the parties, it is to be considered as containing all those terms, and therefore there can be, between the parties and their

representatives or successors in interest, no evidence of the terms of

the agreement other than the contents of the writing, except in the

following cases:

1. Where a mistake or imperfection of the writing, or its failure to express the true intent and agreement of the parties, is put in

issue by the pleadings;

2. Where the validity of the agreement is the fact in dispute. But

this section does not exclude evidence of the circumstances under

which the agreement was made with the view of better ascertaining

its meaning, to which it relates, or evidence to establish its illegality or fraud.

The term " agreement " includes deeds and instruments conveying

real estate, and wills as well as contracts between parties.

Sec. 304. Writing to be interpreted according to legal meaning.—

The language of a writing is to be interpreted according to the

legal meaning it bears in the place of its execution, unless the parties

have reference to a different place.

Sec. 305. Construction of a statute or instrument containing sev- eral provisions.—In the construction of a statute the intention of the

legislature, and in the construction of an instrument, the intention

of the parties, is to be pursued; and when a general and particular

provision are inconsistent, the latter is paramount to the former.

So a- particular intent will control a general one that is inconsistent

with it. Sec. 306. For construction of an instrument circumstances may be

shown.—For the proper construction of an instrument, the circum-
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 67

stances under which it is made, including the situation of the subject

of the instrument and the parties to it, may also be shown, so that the

judge may be placed in the position of those whose language he is to interpret. Sec. 307. Terms of a writing 'presumed to be in their ordinary

sense.—The terms of a writing are presumed to have been used in

the primary and general acceptation, but evidence is nevertheless

admissible that they have a local, technical, or otherwise peculiar

signification, and were so used and understood in the particular

instance, in which case the agreement must be construed accordingly.

Sec. 308. Instruments partly written and partly printed.—When

an instrument consists partly of written words and partly of a printed form and the two are inconsistent, the former controls the

latter. Sec 309. Experts and interpreters to be used in explaining certain

writings.—When the characters in which an instrument is written

are difficult to be deciphered or the language is not understood by the

court, the evidence of a person skilled in deciphering the characters, or who understands the language, is admissible to declare the characters or meaning of the language.

Sec. 310. Where intention of different parties to instruments not

the same.—When the terms of an agreement have been intended in a

different sense by the different parties to it, that sense is to prevail

against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally

proper, that is to be taken which is the most favorable to the party

in whose favor the provision was made.

Sec. 311. Construction in favor of natural right.—When a statute or instrument is equally susceptible of two interpretations, one in

favor of natural right and the other against it, the former is to be

adopted.

Sec. 312. Material allegations only need be proved.—No allegation

contained in the complaint or answer immaterial to the issues need

be proved.

Sec. 313. Evidence must be relevant.—Evidence must correspond

with the substance of the material allegations and be relevant to the

questions in dispute. Collateral questions must therefore be avoided.

It is, however, within the discretion of the court to permit the inquiry

into a collateral fact when such fact is directly connected with the

question in dispute and is essential to its proper determination, or when it affects the credibility of a witness.

Sec. 314. Party must prove his affirmative allegation.—Each party

must prove his own affirmative allegation. Evidence need not be

given in support of a negative allegation except when such negative

allegation is an essential part of the statement of the right or title
68 CODE OF CIVIL PEOCEDUEE OF THE CANAL ZONE. on which the cause of action or defense is founded, nor even in such

case when the allegation is a denial of the existence of a document

the custody of which belongs to the opposite party. Sec. 315. To what facts evidence may he given.—In conformity

with the preceding provision evidence may be given upon a trial of

the following facts:

1. The precise fact in dispute;

2. The act, declaration, or omission of a party as evidence against

such party;

3. An act or declaration of another in the presence and within the

observation of a party, and his conduct in relation thereto, where

the act or declaration is such as naturally to call for action or com- ment by such party;

4. The act or declaration, verbal or written, of a deceased person, or

a person not in the Canal Zone, in respect to the relationship, birth,

marriage, or death of any person related by blood or marriage to such deceased person or persons; the act or declaration of a deceased

person done or made against his interests in respect to his real property

5. After proof of a partnership or agency, the act or declaration

of a partner or agent of the party within the scope of the partnership

or agency during its existence. The same rule applies to the act or

declaration of a joint owner, or joint debtor, or other person jointly

interested with the party;

6. After proof of a conspiracy, the act or declaration of a con- spirator relating to the conspiracy;

7. The act, declaration, or omission forming part of a transaction

8. The testimony of a witness deceased or out of the jurisdiction, or unable to testify, given in a former action between the same parties, relating to the matter;

9. The opinion of a witness respecting the identity or handwriting

of a person, when he has knowledge of the person or handwriting;

his opinion on a question of science, art, or trade, when he is skilled

therein

10. The opinion of a subscribing witness to a writing, the validity

of which is in dispute, respecting the mental sanity of the signer;

and the opinion of an intimate acquaintance respecting the sanity of

a person, the reason for the opinion being given

11. Common reputation existing previous to the controversy, re- specting facts of a public or general interest more than thirty years

old, and in cases of pedigree and boundary;

12. Usage, to explain the true character of an act, contract, or in- strument, where such true character is not otherwise plain; but

usage is never admissible except as an instrument of interpretation

13. Monument and inscription in public places, as evidence of
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 69

common reputation; and entries in family bibles or other family

books or charts; engravings on rings, family portraits and the like, as evidence of pedigree;

14. The contents of a writing, when oral evidence thereof is admissible ; 15. Any other facts from which the facts in issue are presumed or

are logically inferable;

16. Such facts as serve to show the credibility of a witness by affect- ing his reputation for truth, and by showing his motives, and by evi- dence of contradictory statements made by him as to the subjectmatter of his evidence. Sec. 316. Public writings.—The written acts or record of the acts of the sovereign authority, of official bodies and tribunals and of public officers, legislative, judicial, and executive of the Canal Zone, or of

the United States, or of any State of the United States or of a for- eign country, and public records kept in the Canal Zone of private

writings are public writings. A copy of a public writing, duly certified to be a true copy thereof, is admissible evidence in like cases and

with like effect as the original writing.

Sec. 317. Printed laws of the State or country.—Books printed or

published under the authority of the United States, or one of the

States of the United States, or a foreign country, and purporting to contain statutes, codes, or other written law of such State or country

or proved to be commonly admitted in the tribunals of such State or country as evidence of the written law thereof, are admissible in the

Canal Zone as evidence of such law.

Sec 318. Attested copy of foreign law.—A copy of the written law

or other public writing of any state or country attested by the certificate of the officer having charge of the original, under the seal of

the state or country, is admissible as evidence of such law or writing.

Sec 319. Oral proof of United States or foreign unwritten law.—

The oral testimony of witnesses, skilled therein, is admissible as evi- dence of the unwritten law of the United States or of any State of the

United States, or foreign country, as are also printed and published

books of reports of decisions of the courts of the United States or of

such State or country, or proved to be commonly admitted in such

courts. Sec 320. Proof of domestic judicial records.—A judicial record of

the proceedings in a court of justice, or of official acts of a judicial

officer in an action or special proceeding within the United States or any State or Territory thereof, or within the Canal Zone, may be

proved by the production of the original or by a copy thereof, certi- fied by the clerk or other person having the legal custody thereof,

with the seal of the court annexed, together with a certificate of the
70 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

chief judge or presiding magistrate that the attestation is in due

form.

Sec. 321. Proof of foreign judicial records.—A judicial record of a foreign country may be proved by the attestation of the clerk, with

the seal of the court annexed, if there be a clerk and seal, or of the

legal keeper of the record, with the seal of his office annexed, if there

be a seal, together with a certificate of the chief judge or presiding

magistrate that the person making the attestation is the clerk of the

court, or legal keeper of the record, and, in either case, that the signa- ture of such person is genuine and that the attestation is in due form.

The signature of the chief judge or presiding magistrate must be

authenticated by the certificate of a minister or ambassador, or a

consul, vice-consul, or consular agent of the United States in such

foreign country.

Sec 322. Proof of foreign judicial record by examined copy.—

copy of the judicial record of a foreign country is also admissible in

evidence, upon proof

1. That the copy has been compared by the witness with the original, and is an exact transcription of the whole

2. That such original was in the custody of the clerk of the court, or other legal keeper of the same

3. That the copy is duly attested with the seal, if there prove to be a seal of the court where the record remains, if it be the record of the court ; or if there be no such seal, or if it be not the record of the

court, by the signature of the legal keeper of the original.

Sec 323. Effect of judgment.—The effect of a judgment or final order in an action or special proceeding before a court or judge of the

Canal Zone or of the United States, or of any State or Territory of

the United States, having jurisdiction to pronounce the judgment or

order, shall be as follows

1. In case of a judgment or order against a specific thing, or in re- spect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or relation of a particular person, the judgment or order is conclusive upon the title of the thing, the will or administration, or the

condition or relation of the person: Provided, That the probate of a

will or granting of letters of administration shall only be prima facie

evidence of the death of the testator or intestate

2. In other cases the judgment so ordered is, in respect to the

matter directly adjudged, conclusive between the parties and their successors in interest by title subsequent to commencement of the

action or special proceeding, litigating for the same thing and under

the same title and in the same capacity.

Sec 324. What is deemed to have been adjudged in a former judgment.—That only is deemed to have been adjudged in a former judg-
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 71

ment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. Sec. 325. When principal bound by judgment against surety.—

When the party is bound by a record, and such party stands in the

relation of surety for another, the latter is also bound from the time

that he has notice of the action or proceeding, and an opportunity at the surety's request to join in the defense.

Sec 326. Effect of judicial record of a court in the United States.—

The effect of a judicial record of a court of the United States or of a

court of one of the States or Territories of the United States, is the same in the Canal Zone as in the United States, or in the State or Territory where it is made, except that it can only be enforced here

by an action or special proceeding, and except, also, that the authority of a guardian, or executor or administrator does not extend beyond

the jurisdiction of the Government under which he was invested with

his authority.

Sec 327. Effect of judicial record of a court of admiralty for a

foreign country.—The effect of a judicial record of a court of admiralty of a foreign country is the same as if it were the record of a court of admiralty of the Canal Zone.

Sec 328. Effect of other foreign judgment.—The effect of a judgment of any other tribunal of a foreign country, having jurisdiction

to pronounce the judgment, is as follows:

1. In case of a judgment against a specific thing, the judgment is conclusive upon the title to the thing;

2. In case of a judgment against a person, the judgment is pre- sumptive evidence of a right as between the parties and their suc- cessors in interest by a subsequent title; but the judgment may be

repelled by evidence of a want of jurisdiction, want of notice to the

party, collusion, fraud, or clear mistake of law or fact. Sec 329. How judicial record may be impeached.—Any judicial

record may be impeached by evidence of a want of jurisdiction in

the court or judicial officer, of collusion between the parties, or of

fraud in the party offering the record, in respect to the proceedings.

Sec 330. Proof of other official documents.—Official documents

may be proved, as follows

1. Acts of the Chief Executive of the Canal Zone, by the record of

his office, certified by his secretary under the seal thereof, if there be one ; acts of the Executive of the United States, by the records of the

Departments of the United States Government, wherein are con- tained the records of such acts, certified by the heads of such depart- ments. They may also be proved by public documents printed by

order of the Chief Executive of the Canal Zone, or the President of

the United States, or by order of Congress, or either House thereof, or by the order of the Isthmian Canal Commission, or by the order of
72 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

any legislative assembly which ma}7 be provided for the Canal Zone.

Acts of the Executive of the territory now known as the Republic of

Panama under Colombian or Panamanian administration may be

proved by the records thereof in the custody of the United States

officials, or officials of the said Governments, certified by the legal

keeper of the records. They may also be proved by public documents

printed by the order of the Chief Executive of the said Canal Zone.

Acts of the Chief Executive of the Republic of Panama may be

proved by the records of any department of that Executive, certified by the head of the department in which the record is;

2. The proceedings of the United States Isthmian Canal Commission, or of an}' legislative body that may be provided for the Canal

Zone, or of Congress, by the journals of those bodies, or of either

House thereof, or by published statutes or resolutions, or by copies

certified by the clerk or secretary, or printed by their order. The

proceedings of the legislative branch of the Government of Colombia

or Panama prior to the twenty-third day of February, nineteen hundred and four, may be proved by public documents, or statutes or

resolutions, printed by the order of the executive or legislative departments of the said Governments, or commonly received in those

countries as such, or by copy certified under the seal of either the

executive or the legislative branch of said Governments, or by a recognition thereof in some public act of the Executive of the United

States

3. The acts of the executive or the proceedings of the legislature of

any State or Territory of the United States, in the same manner as provided in paragraphs one and two;

4. The acts of the executive or the proceedings of the legislature

of a foreign country, by journals published by their authority, or com- monly received in that country as such, or by a copy certified under

the seal of the country or sovereign, or by recognition thereof in some public act of the Executive of the United States

5. The acts of a municipal corporation of the Canal Zone, or of a board or department thereof, by a copy certified by the legal keeper

thereof, or by a printed book published by the authority of such

corporation

6. Official documents of any other class in the Canal Zone, by the

original, or by copy certified by the legal keeper thereof;

7. Official documents of any other class in the United States, or in

any State or Territory thereof- by the original, or by a copy, certified by the legal keeper thereof, together with the certificate of the secre- tary of state, judge of the supreme, superior, or county court, or a mayor of a city of the United States, or of such State or Territory,

that the copy is duly certified by the officer having the legal custody of

the original
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 73

8. Official documents of any other class of a foreign country, by

the original, or by a copy certified by the legal keeper thereof, with

a certificate, under the seal of the country or sovereign, that the

document is a valid and subsisting document of such country, and that

the copy is duly certified by the officer having the legal custody of the

original

9. Official documents in departments of the United States Government, by the certificate of the legal custodian thereof.

Sec 331. Proof of 'public record of private writing.—An authorized public record of a private writing may be proved by the original

record, or by a copy thereof, certified by the legal keeper of the record. Sec. 332. Entries in official book.—Entries in public or other

official books or records, made in the performance of his duty

by a public officer of the Canal Zone; or by another person in the

Zone in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. Sec 333. Proof of judgment of justice of the peace.—A transcript

from the record or docket of a justice of the peace within the United

States, or any State or Territory thereof, or of a district judge within

the Canal Zone, of a judgment rendered by him of the proceedings in

the action before the judgment, of the execution and return, if any,

subscribed by the justice or judge and verified in the manner pre- scribed in the next section, is admissible evidence of the facts stated

therein.

Sec 334. Certificate attached to transcript of justice's record.—

There must be attached to the transcript a certificate of the justice or

district judge that the transcript is in all respects correct, and that

he had jurisdiction of the action, and also a further certificate of the

clerk of the county, if within the United States, or a State or Territory thereof, under the seal of the county, certifying that the person

subscribing the transcript was at the date of the judgment a justice

of the peace in the said county, and that the signature is genuine.

Such judgment, proceedings, and jurisdiction may also be proved by

the justice or judge himself, on the production of his docket, or by

a copy of the judgment and his oral examination as a witness.

Sec 335. What certificate of copy of writing must state.—Whenever a copy of a writing is certified for the purpose of evidence, the

certificate must state, in substance, that the copy is a correct copy

of the original, or a specific part thereof, as the case may be. The certificate must be under the official seal of the certifying officer, if there

be any, or if he be the clerk of a court having a seal, under the

seal of such court. Sec 33G. Historical works, books of science, and maps.—Historical works, books of science, or art, published maps or charts, when
74 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

made by persons indifferent between the parties, are prima facie

evidence of facts of general notoriety and interest. Sec. 337. Secondary evidence of the contents of a lost writing.—

An original writing must be produced and proved except as otherwise provided. If it has been lost, proof of the loss must first be

made before evidence can be given of its contents. Upon such proof

being made, together with proof of the due execution of the writing,

its contents may be proved by a copy or by a recital of its contents

in some authentic document, or by the recollection of a witness.

Sec. 338. Secondary evidence of writing in custody of adverse

party.—If the writing be in the custody of the adverse party, he

must have reasonable notice to produce it. If he then fail to do so, the contents of the writing may be proved as in the case of its loss. But the notice to produce it is not necessary where the writing is itself a notice, or where it has been wrongfully obtained or withheld by

the adverse party.

Sec. 339. Party calling for writing not hound to offer it as evi- dence.—Though a writing called for by one party is produced by the

other, and is thereupon inspected by the party calling for it, he is not obliged to produce it as evidence in the case. Sec. 340. Proof of writing.—Any writing may be proved, either;

1. By anyone who saw the writing executed; or

2. By evidence of the genuineness of the handwriting of the

maker; or

3. By a subscribing witness.

Sec. 341. Denial of execution by subscribing witness.—If the subscribing witness denies, or does not recollect the execution of the

writing, its execution may still be proved by other evidence.

Sec. 342. When other evidence of the execution of writing need

not be produced.—Where a writing is more than thirty years old,

and evidence is given that the party against whom the writing is offered has at any time admitted its execution, or where the writing

is one produced from the custody of the adverse party, and has been

acted upon by him as genuine, no other evidence of the execution need

be given.

Sec. 343. Proof of handxvriting

—The handwriting of a person

may be proved by anyone who believes it to be his, and has seen him

write, or has seen writing purporting to be his, upon which he has

acted, or been charged, and he has thus acquired knowledge of his

handwriting. Evidence respecting the handwriting may also be

given by comparison, made by the court, with writings admitted ov

treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. Where the

writing is more than thirty years old, the comparisons may be made

with writings purporting to be genuine and generally respected and
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 75

acted upon as such by persons having an interest and knowing the

fact. Sec. 344. Writings of a deceased person.—The entries and other

writings of a deceased person, made at or near the time of the transaction, and in a position to know the facts stated therein, may be

read as a prima facie evidence of the facts therein stated, in the

following cases

1. When the entry was made against the interests of the person

making it;

2. When it was made in a professional capacity, and in the ordinary

course of professional conduct;

3. When it was made in the performance of a duty specially en- joined by law, or in the course of the ordinary and regular duties

of the person making the entry.

Sec. 345. What are original entries.—When an entry is repeated

in the regular course of business, one being copied from another

at or near the time of the transaction, all the entries are equally

regarded as originals.

Sec. 346. Original records not to be removed from office.—The

record of a conveyance of real property, or any other record, transcript of which is admissible in evidence, must not be removed from

the office at which it is kept, except upon order of a court, in cases where the inspection of the record is shown to be essential to the

just determination of the cause or action or proceeding pending, or where the court is held in the same building with such office. Sec. 347. Proof of real-estate titles.—Every instrument conveying

or affecting real property situated in the Canal Zone acknowledged

or proved and certified as provided by law, may, together with the

certificate of the acknowledgment or proof, be read in evidence in an

action or proceeding without further proof; also the original record

of such conveyance or instrument thus acknowledged or proved, or a

certified copy of the record of such conveyance or instrument thus

acknowledged or proved, may be read in evidence with the like effect as the original instrument, without further proof.

Sec. 348. View of an object by the court.—Whenever an object has

such a relation to the fact in dispute as to afford reasonable grounds

of belief respecting it. such object may be exhibited to the court, or

its existence, situation, or character proved by witnesses, as the court

in its discretion may determine.

Sec. 349. Conclusive presumption.—The following presumptions

or deductions, which the law expressly directs to be made from particular facts, are deemed conclusive:

1. Whenever a party has, by his own declaration, act, or omission,

intentionally and deliberately led another to believe a particular

thing true, and to act upon such belief, he can not, in any litigation
76 CODE OF OIVIL PROCEDURE OF THE CANAL. ZONE.

arising out of such declaration, act, or omission, be permitted to falsify it;

2. The tenant is not permitted to deny the title of his landlord

at the time of the commencement of the relation of landlord and

tenant between them;

3. The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate, if not born

within the one hundred and eighty days immediately succeeding the

marriage, or after the expiration of three hundred days following

its dissolution;

4. The judgment or order of a court, when declared by the court to be conclusive.

Sec. 350. Disputable presumptions.—The following presumptions

are satisfactory, if uncontradicted, but they are disputable, and may

be contradicted by other evidence

1. That a person is innocent of crime or wrong;

2. That an unlawful act was done with an unlawful intent;

3. That a person intends the ordinary consequence of his voluntary

act

4. That a person takes ordinary care of his own concerns;

5. That evidence willfully suppressed would be adverse if pro- duced ; 6. That money paid by one to another was due to the latter;

7. That a thing delivered by one to another belonged to the latter

8. That an obligation delivered up to the debtor has been paid

9. That former rent or installments had been paid when a receipt

for the later ones is produced

10. That things which a person possesses are owned by him

11. That a person is the owner of property from exercising acts of ownership over it, or from common reputation of his ownership;

12. That a person in possession of an order on himself for payment of money, or the delivery of anything, has paid the money or delivered the thing accordingly

13. That a person acting in a public office was regularly appointed

or elected to it; 14. That official duty has been regularly performed;

15. That a court, or judge acting as such, whether in the Canal

Zone or elsewhere, was acting in the lawful exercise of his jurisdiction ; 16. That all the matters within an issue in an action were laid

before the court and passed upon by it; and in like manner that

all matters within a submission to arbitration were laid before the

arbitrators and passed upon by them;

17. That private transactions have been fair and regular;
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 77

18. That the ordinary course of business has been followed;

19. That a promissory note or bill of exchange was given or indorsed for a sufficient consideration;

20. That an indorsement of a negotiable promissory note or bill of exchange was made after the time and at the place of making the note or bill; 21. That a writing is duly dated;

22. That a letter duly directed and mailed was received in the

regular course of the mail;

23. Identity of person from identity of name;

24. That a person not heard from in seven years is dead;

25. That acquiescence resulted from a belief that the thing

acquiesced in was conformable to the law or fact;

2G. That things have happened according to the ordinary course of

nature and the ordinary habits of life; 27. That persons acting as copartners have entered into a contract of copartnership;

28. That a man and woman deporting themselves as husband and

wife have entered into a lawful contract of marriage

29. That a child born in lawful wedlock, there being no divorce,

absolute or from bed and board, is legitimate

30. That a thing once proved to exist continues as long as is usual

with things of that nature

31. That the law has been obeyed

32. That a document or writing more than thirty years old is genuine, when the same has since been generally acted upon as genuine by persons having an interest in the question, and its custody

lias been satisfactorily explained;

33. That a printed or published book, purporting to be printed or published by public authority was so printed or published

34. That a printed or published book, purporting to contain reports

of cases adjudged in tribunals in the State or country where the book

is published, contains correct reports of such cases;

35. That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed to him when

such presumption is necessary to perfect the title of such person or his successor in interest

36. That there was a good and sufficient consideration for a written

contract

37. When two persons perish in the same calamity, such as wreck,

battle, or conflagration, and it is not shown who died first, and there

are no particular circumstances from which it can be inferred, the

survivorship is presumed from the probabilities resulting from the

strength and age of the sexes, according to the following rules: 803a—07—m 6*
78 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

First. If both those who have perished were under the age of

fifteen years, the older is presumed to have survived

Second. If both were above the age of sixty, the younger is pre- sumed to have survived;

Third. If one be under fifteen and the other above sixty, the former

is presumed to have survived

Fourth. If both be over fifteen and under sixty, and the sexes be

different, the male is presumed to have survived. If the sexes be the same, then the older;

Fifth. If one be under fifteen or over sixty, and the other between

those ages, the latter is presumed to have survived.

38. That a writing written merely as a receipt or acknowledgment

is true, but the same, if produced in evidence, may be shown to have

been given by mistake, or procured by fraud, or explained as to its legal effect. Sec. 351. Agreements invalid unless made in writing.—In the fol- lowing cases an agreement hereafter made shall be unenforceable by

action unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evi- dence, therefore, of the agreement can not be received without the

writing, or secondary evidence of its contents

1. An agreement that by its terms is not to be performed within a year from the making thereof

2. A special promise to answer for the debt, default, or miscarriage

of another

3. An agreement made upon the consideration of marriage, other

than a mutual promise to marry

4. An agreement for the sale of goods, chattels, or things in action, at a price not less than fifty dollars, unless the buyer accept and re- ceive part of such goods and chattels, or the evidences, or some of

them of such things in action, or pay at the time some part of the

purchase money; but when a sale is made by auction and entry is made by the auctioneer in his sales book, at the time of the sale, of

the amount of property sold, terms of sale, price, names of the purchasers, and person on whose account the sale is made, it is a sufficient memorandum;

5. An agreement for the leasing for a longer period than one year. or for the sale of real property, or of an interest therein, and such

agreement, if made by the agent of the party sought to be charged,

is invalid unless the authority of the agenl be in writing and subscribed by the party sought to be charged

C>. No evidence is admissible to charge a person upon a representation as to the credit of a third person, unless such representation, or some memorandum thereof, be in writing, and either subscribed by

or in the handwriting of the party to be charged.
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 79

Sec. 352. Alteration in writing.—The party producing a writing

as genuine which has been altered, and appears to have been altered

after its execution, in a part material to the question in dispute,

must account for the appearance of the alteration. He may show

that the alteration was made by another, without his concurrence, or was made with the consent of parties affected by it or otherwise

properly or innocently made, or that the alteration did not change

the meaning or language of the instrument. If he do that he may

give the writing in evidence, but not otherwise.

Sec 353. Leading questions.—A question which suggests to the

witness the answer which the examining party desires is a leading

question. On direct examination, leading questions are not allowed,

except in the sound discretion of the court under special circumstances making it appear that the interest of justice require it. Sec. 354. V.'itness may refer to memorandum.—A witness may be

allowed to refresh his memory respecting a fact, by anything written

by himself or under his direction at the time when the fact occurred,

or immediately thereafter, or at any other time when the fact was

fresh in his memory and he knew that the same was correctly stated

in the writing; but in such case the writing must be produced and

may be seen by the adverse party, who may, if he choose, cross- examine the witness upon it, and may read it in evidence.

So, also, a witness may testify from such writing, though he retain no recollection of the particular facts, if he is able to swear that the

writing correctly stated the transaction when made: but such evi- dence must be received with caution.

Sec. 355. Leading questions on cross-examination.—The opposite

party may cross-examine a witness to any facts stated in his direct

examination, or connected therewith, and in so doing he may put

leading questions. But, if he examine him as to other matters, such

examination is to be subject to the same rules as a direct examination.

Sec. 356. Party may not impeach his own witness.—The party

producing a witness is not allowed to impeach his credit by evidence

of a bad character, but may contradict him by other evidence, and

in the discretion of the court, in order to show that the witness has

misled him into calling him to the stand, may also show that he has

made at other times statements inconsistent with present testimony,

and may, if the court permit, cross-examine said witness as to such

conflicting statements. Sec. 357. Recalling witness.—After the examination of a witness

by both sides has been concluded, the witness can not be recalled with- out leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require. Sec. 358. Impeaching witness.—A witness may be impeached by

the party against whom he was called, by contradictory evidence, or
80 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

by evidence that his general reputation for truth, honesty, or integrity is bad; but not by evidence, of particular wrongful acts, except

that it may be shown by the examination of the witness, or the

record of the judgment, that he has been convicted of a crime. Sec. 359. Impeachment of witness by inconsistent statements.—

witness may also be impeached by evidence that he has made at other

times statements inconsistent with his present testimony; but before

this can be done, the statement must be related to him, with the cir- cumstances of the times and places and the persons present, and

he must be asked whether he made such statements, and, if so, allowed to explain them. If the statements be in writing they must

be shown to the witness before any question is put to him concerning

them.

Sec. 360. Evidence of good character of the witness.—Evidence of

the good character of the party or witness is not admissible in a civil action until the character of such party or witness has been impeached, or unless the issue involved is character. Sec. 361. Right of opposite party to inspect writing shotcn to a

witness.—Whenever a writing is shown to a witness, it may be in- spected by the opposite party.

Sec. 362. Offer to compromise.—An offer to compromise is not an

admission that anything is due, and is not admissible in evidence.

Sec. 363. Unaccepted offer in writing equivalent to tender.—An

offer in writing to pay a particular sum of money, or to deliver a written instrument or specific personal property is, if rejected, equivalent to the actual production and tender of the money, instrument, or property.

Affidavits and depositions.

Sec. 364. Use of affidavit.—An affidavit is a written declaration

under oath, made without notice to the adverse party, and may be

used to verify a pleading, or paper in a special proceeding, to prove

the service of a summons, notice, or other paper, in an action or

special proceeding to obtain a provisional remedy, examination of

witnesses, or stay of proceedings, or upon a motion, and in any other

case specially permitted by any other provision of this Code. Evidence of the publication of a document, or notice required by law, or by an order of a court or judge, to be published in a newspaper, may

be given by the affidavit of the printer of the newspaper, or his fore- man, or principal clerk, annexed to a copy of the document or notice

specifying the times when and the paper in which the publication was made. If such affidavit be made in an action or special proceeding pending in a court, it may be filed with the court or the clerk

thereof. In such case the original affidavit or a copy thereof, certi-
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 81

fied by the judge of the court or the clerk having it in custody, is prima facie evidence of the facts stated therein.

Sec. 365. Who may administer oath for affidavit to be used in the

Zone.—An affidavit to be used before any court, judge, or officer of

the Canal Zone, may be taken before any judge of any court, or any

notary public in the Zone. Sec 366. Who may administer oath for affidavit taken in the

United States.—An affidavit taken in the United States, or in any

State or Territory thereof, to be used in the Canal Zone, may be

taken before a commissioner, appointed by the Chief Executive of

the Canal Zone, to take affidavits and depositions in the United

States, or in such State or Territory, or before any notary public in

the United States, or in such State or Territory, or before any judge,

or clerk of a court of record having a seal. Sec. 367. Affidavit taken in a foreign country.—An affidavit taken

in a foreign country, to be used in the Canal Zone, may be taken

before an ambassador, minister, consul, or vice-consul, or consular

agent of the United States, or before any judge of a court of record

having a seal, in any foreign country.

Sec. 368. Certification of affidavit taken in the United States or a foreign country.—When an affidavit is taken before a judge or a court in the United States, or in any State or Territory thereof, or

in a foreign country, the genuineness of the signature of the judge,

the existence of the court, and the fact that such judge is a member

thereof must be certified by the clerk of the court under the seal thereof.

Depositions.

Sec. 369. Depositions may be used.—In all cases other than those

expressly provided in this Code, where a written declaration under

oath is used, it must be a deposition, as prescribed by this Code.

Sec. 370. Testimony of a witness out of the Zone may be taken by

deposition.—-Testimony of a witness out of the Canal Zone may be

taken by deposition in an action at any time after the service of a summons or the appearance of the defendant; and, in a special

proceeding, at any time after a question of fact has arisen therein. Sec. 371. Depositions of a witness within the Canal Zone.—-The

testimony of a witness in the Canal Zone, may be taken by deposition,

in an action, any time after the service of the summons or the

appearance of the defendant, and, in a special proceeding after the

question of fact has arisen therein, in the following cases

1. When the witness is a party to the action or proceeding, or an

officer, or a member of a corporation which is a party to the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended
82 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

2. When the witness is about to leave the Canal Zone and will

probably continue absent when the testimony is required

3. When the witness otherwise liable to attend the trial is nevertheless too ill or infirm to attend;

4. When the testimony is required upon a motion, or in any other

case, when the oral examination of a witness is not required

5. When the witness is the only one who can establish facts or a

fact material to the issue : Provided, The deposition of such witness

shall not be used if his presence can be procured at the time of the

trial of the cause. Sec. 372. How deposition of a witness out of the Canal Zone may

be taken.—The deposition of a witness out of the Canal Zone may be

taken upon a commission issued from the court in which the action or proceeding is pending, under the seal of the court, upon an order

of the court, or a judge or justice thereof, on the application of either

party, upon five days' previous notice to the other. If the court be

that of a district judge, the commission shall have attached to

it a certificate under seal by the clerk of the Circuit Court of the

circuit in which the court is held, to the effect that the person issuing

the same was an acting district judge at the date of the commission. If issued to any place within the United States, or any State

or Territory thereof, it may be directed to a person agreed upon by

the parties, or, if they do not agree, to any justice of the peace, or notary public, or to any Federal or State judge, or to any commissioner authorized by the laws of the United States to administer

oaths and write depositions. If issued to any country out of the

United States, or the territories thereof, it may be directed to a minister, ambassador, consul, vice-consul, or consular agent of the United

States in such country, or to any person agreed upon by the parties.

Sec 373. Interrogatories may be annexed to the commission.—

Such proper interrogatories, direct and cross, as the respective parties

may prepare, to be settled, if the parties disagree as to their form,

by the judge or officer granting the order for the commission, at a day fixed in the order, may be annexed to the commission ; or, when

the parties agree to that mode, the examination may be oral and

without written interrogatories.

Sec. 374. Duties of official taking the deposition.—The commission

must authorize the commissioner to administer an oath to the wit- ness and to take his deposition in answer to the interrogatories, or, when the examination is to be without interrogatories, in answer to oral questions, in respect to the question in dispute, and to certify

the deposition to the court, in a sealed envelope directed to the clerk or other person designated or agreed upon, and forwarded to him by

mail or other channel of conveyance.
CODE OP CIVIL PROCEDURE OF THE CANAL ZONE. 83

Sec. 375. Trial not necessarily delayed pending taking of deposition.—A trial or other proceeding must not be postponed by reason of a commission not returned, except upon evidence satisfactory to the court that the testimony of the witness is necessary, and that

proper diligence has been used to obtain it. Sec. 376. Such deposition may he used by either party.—The deposition mentioned in the four preceding sections may be used by either

party on the trial or other proceeding against any other party giving

or receiving a notice, subject to all just exceptions.

Sec. 377. Taking depositions within the Canal Zone.—Either party

may have the deposition taken of a witness in the Canal Zone in

either of the cases mentioned, before any judge, or notary public, on serving on the adverse party previous notice of the time and place

of examination, together with a copy of an' affidavit showing that

the case is within such section. Such notice must be served at least two days before the time is fixed for taking the deposition, and must

in all cases give the party reasonable time after notice to be present

at the taking thereof, and without a notice of such reasonable length

of time the deposition shall not be admissible in evidence The court

shall determine, if the deposition is offered in evidence, whether a reasonable notice of taking has been given.

Sec. 378. Manner of taking, certifying, and transmitting depositions.—Either party may attend the examination and put such questions, direct and cross, as may be proper. The deposition, when completed, must be carefully read to the witness and corrected by him

in any particular, if desired; it must then be subscribed by the witness, certified by the judge or officer taking the deposition, inclosed

in an envelope or wrapper, sealed, and directed to the clerk of the court in which the action is pending, or to such person as the parties

in writing may agree upon, and either delivered by the judge or

officer to the clerk or such person, or transmitted through the mail, or by some other private conveyance, and thereupon such deposition

. may be used by either party upon the trial or other proceedings

against any party giving or receiving a notice, subject to all legal exceptions, which may be taken when the deposition is read;

except that objections to the form of a question which might be cor- rected if the adversary party's attention were invited thereto at the

time, shall be deemed to have been waived unless noted at the time

the deposition is taken. The deposition thus taken may be also read

in case of the death of the witness; but the deposition may be

excluded if the court finds that the taking was in any respect unfair

or fraudulent.

Sec. 379. A stenographer may be employed in taking deposition.—

The deposition shall be written by the judge or officer taking it, or
84 CODE OF CIVIL PROCEDURE OP THE CANAL ZONE.

by some disinterested person in the presence and under the direction

of the judge or officer. Such disinterested person may be a stenographer and may take the deposition in shorthand, but must forthwith reproduce it in longhand, and then it shall be subscribed by him

and certified, inclosed and forwarded as provided.

Sec. 380. Deposition may be read at any stage of action.—When a deposition has been once taken, it may be read by either party in any

stage of the same action or proceeding where the reception of evi- dence is proper, or in any other action between the same parties upon

the same subject-matter, and is then deemed the evidence of the

party reading it. Sec. 381. Deposition to be used outside of the Canal Zone.—Any

party to an action or special proceeding in a court, or before a judge

of the United States, or any State or Territory thereof, or of any

foreign country, may obtain the testimony of a witness residing in

the Canal Zone, to be used in such action or proceeding, in the cases mentioned in the next two sections.

Sec. 382. Summoning witnesses to appear before commissioner.—

If a commission to take such testimony has been issued from the court, or a judge thereof, before which such action or proceeding is pending, on producing the commission to any judge in the Canal Zone, with an affidavit satisfactory to him of the materiality of the testimony,

he may issue a subpoena to the witness, requiring him to appear and

testify before the commissioner named in the commission, at a specified time and place.

Sec. 383. When commission has not been issued.—If a commission

has not been issued, and it is made to appear to any judge by an affi- davit satisfactory to him

1. That the testimony of the witness is material to either party;

2. That a commission to take the testimony of such witness has not

been issued

3. That according to the law of the State or country where the

action or special proceeding is pending, the deposition of a witness

taken under such circumstances and before such judge or justice, will

be received in the action or proceeding ; he must issue his subpcena re- quiring the witness to appear and testify before him, at a specified

time and place. Sec. 384. Taking flic deposition.—Upon the appearance of the witness, the judge or justice of the peace, or commissioner, as the case may be, must cause his testimony to be taken in writing, and must cer- tify and transmit the same to the court or judge before whom the

action or proceeding is pending, in such manner as the law of that

State or country requires.

Sec. 385. Oath of witness giving deposition.—Every witness giving

a deposition shall take an oath that the deposition by him subscribed
CODE OF CIVIL PROCEDURE OF THE CANAL, ZONE. 85

contains the truth, the whole truth, and nothing but the truth, and

the authority taking the deposition shall certify that such oath has

been administered.

Sec. 386. Perpetuation of testimony.—The testimony of any wit- ness may be taken for perpetual preservation, when the party desiring to take it shall present to any judge of the Supreme Court, or Circuit Court, a petition verified by oath of the applicant, stating:

1. That the applicant expects to be a party to an action in a court

in the Canal Zone, and giving the names of the persons who he ex- pects will be adverse parties ; or

2. That the proof of some fact is necessary to perfect the title of

property in which he is interested, or to establish marriage, descent,

heirship, or any other matter which may hereafter become material

to establish, though no action may at the time be anticipated, or, if anticipated, the names of the parties thereto may not be known ; and

3. The name of the witness to be examined, his place of residence,

and a general statement of facts expected to be proved.

Sec 387. Order of judge for perpetuation of testimony.—The

judge to whom such petition is presented shall make an order allowing

the examination, before himself, and prescribing the time and place

for taking the testimony, and the notice to be given, which notice,

if the parties expectant are known to reside within the Canal Zone,

must be personally served, or, if unknown, must be served on the

clerk of the Circuit Court where the property to be affected by such

evidence is situated, and by publication thereof in some newspaper

of general circulation on the Isthmus where the property is situated, to be designated by the judge, for three successive weeks prior to the

time of taking the testimony.

Sec 388. Taking the testimony.—At the time and place designated

in the notice provided in the last preceding section the judge shall

require proof that the order of notice has been complied with, and

certify that fact, and shall thereupon proceed to take the deposition

named in the order of the judge; or, if more than one witness is thus

named, such of them as appear before him at the time designated,

but the taking of the same may be continued from time to time.

Sec 389. Manner of conducting examination.—The examination

must be by question and answer. The deposition when completed,

must be carefully read to and subscribed by the witness, and certified by the judge taking the same, who shall also certify that the witness was duly sworn, and the deposition shall then, together with the petition and order of the judge for taking the testimony, be sealed up

and delivered or transmitted to the clerk of the Circuit Court of the

circuit in which the applicant resides. The clerk shall indorse on the

deposition the date when the same with its accompanying papers was
86 CODE OF CIVIL. PROCEDURE OF THE CANAL ZONE.

filed in his office, and shall securely retain the same, for the use hereinafter provided.

Any party having a legal interest in the subject-matter of the

deposition shall be entitled to receive from the clerk of the court having the lawful custody thereof a certified copy of the deposition, upon

payment of lawful fees for making and certifying such copy.

Sec. 390. Payers filed 'prima facie evidence of regularity.—The

petition and order, and certificate of service, and papers filed by the

judge as provided in the last preceding section, are prima facie evi- dence of the facts stated therein, to show compliance with the provisions of the four preceding sections.

Sec 391. Use of such deposition.—If a trial be had between the

parties named in the petition as parties expectant, or their successors

in interest, or between any parties wherein it may be material to establish the facts which such deposition proves or tends to prove

and whose interest was unknown to the party taking the deposition

at the time of taking, upon proof that the witnesses whose depositions have thus been taken are dead or insane, or can not be found, or

are unable, by reason of age or other infirmity, to give their testi- mony in court, the depositions, or certified copies thereof, may be used

by either party, subject to all legal objections.

Sec. 392. Effect of testimony so taken.—The deposition so taken

and read in evidence shall have the same effect as the oral testimony

of the witness. Any objection which would be proper to take if the

witness were testifying orally may be taken to the witness or to any

part of his deposition when the same is read upon the trial.

Chapter XIII.

VENUE OF ACTIONS.

Sec 393. Venue of actions.—Actions to confirm titles to real estate. or to secure a partition of real estate, or to cancel clouds, or remove

doubts from the titles of real estate, or to obtain possession of real

estate, or to recover damages for injuries to real estate, or to establish any interest, right, or title in or to real estate, or actions for the

condemnation of real estate for public use, shall be brought in the

judicial circuit where the land, or some part thereof, is situated;

actions against executors, administrators, and guardians touching

the performance of their official duties, and actions for account and

settlement by them, and actions for the distribution of the estates of deceased persons among the heirs and distributees, and actions for

the payment of legacies, shall be brought in the circuit in which 'the will was admitted to probate, or letters of administration were

granted, or the guardian was appointed. And all actions not herein
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 87

otherwise provided for may be brought in any circuit where the

defendant or necessary party defendant may reside or be found, or in

any circuit where the plaintiff or one of the plaintiffs resides, at the

election of the plaintiff, except in cases where other special provision

is made in this Code. In case neither the plaintiff nor the defendant

resides within the Canal Zone and the action is brought to seize or obtain title to property of the defendant within the Canal Zone,

the action shall be brought in the circuit where the property which

the plaintiff seeks to seize or to obtain title to is situated or is found

Provided, That in an action for the foreclosure of a mortgage upon

real estate, when the service upon the defendant is not personal, but

is by publication, in accordance with law, the action must be brought

in the circuit where the land lies. And in all cases process may issue

from the court in which an action or special proceeding is pending,

to be in force in any circuit to bring in defendants and to enforce all orders and decrees of the court. The failure of the defendant to object to the venue of the action at the time of entering his appear- ance in the action shall be deemed a waiver on his part of all objection to the place or tribunal in which the action is brought, except

in the actions referred to in this section relating to real estate, and

actions against executors, administrators, and guardians, and for

the distribution of estates and payment of legacies.

Chapter XIV.

PROCEEDINGS WHEN JUDGE IS DISQUALIFIED OR DISABLED. Sec 394. Proceeding when judge disqualified.—Whenever a judge

in a Circuit Court is disqualified, under the provisions of the Code,

to sit in any action, the judge shall immediately notify the Chief

Justice of the Supreme Court of his disqualification, and thereupon

the judges of the Supreme Court shall designate some other judge of

a Circuit Court, to hold such a term of court, or such part thereof as may be necessary where such action may be pending, and to preside

at the trial thereof, and the judge so designated shall in all respects

have the same power in the action as though he had been the regular

judge whose duty it was to preside in the court. But if the judges of

the Supreme Court shall certify to the Chief Executive that it is inconvenient to assign any other judge to hold a term, or to try the

action, the Chief Executive shall thereupon commission some person

learned in the law to attend and hold said court, with the same power

as though he had been the regular judge thereof. Any special judge

ordered under the provisions of this section, shall receive a compensation of fifteen dollars, United States money, per day. and necessary

expenses for the time actually employed in the trial.
88 CODE OF CIVIL PKOCEDURE OF THE CANAL ZONE.

Sec. 395. Proceeding where judge is physically disabled.—When a judge of a Circuit Court is unable, from sickness or other physical

disability, to attend and hold any court, at the time and place re- quired by law, temporary provision for a judge to hold the term of

court shall be made, as provided in the preceding section. Chapter XV.

WITNESSES.

Sec. 396. Witnesses.—The testimony of all witnesses, except such

as has been taken in writing in the form of depositions as provided

by law, shall be given on oath in open court orally, and each wit- ness may be orally cross-examined by the adverse party or his

counsel with sufficient fullness and freedom to test his accuracy

and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. The court

shall be liberal in allowing cross-examination, but shall have the

power to restrict it so as to confine it to the purposes last above

specified and to prevent irrelevant or insulting interrogatories.

Sec. 397. Qualification of witness.—All persons, without exception,

otherwise than as specified in the next section, who, having organs

of sense, can perceive, and, perceiving, make known their perceptions

to others, may be witnesses. Neither the parties nor other persons, who have an interest in the event of an action or proceeding shall be

excluded ; nor shall those who have been convicted of crime ; nor shall any person be excluded on account of his opinion on matters of re- ligious belief. But in every case the credibility of the witness may be

drawn in question by competent evidence, and the court in weighing

the testimony of any witness shall make due allowance for the interest or credibility of the witness, as the facts disclosed may require. Sec. 398. Incompetency of witnesses.-—The following persons can

not be witnesses

1. Those who are of unsound mind at the time of their production

for examination, to such degree as to be incapable of perceiving and

making known their perceptions to others;

2. Children who appear to the court to be of such tender age and

inferior capacity as to be incapable of receiving the just impressions

of the facts respecting which they are examined, or of relating them

truly;

3. A husband cannot be examined for or against his wife without

her consent; nor a wife for or against her husband without his consent; nor can either, during the marriage or afterwards, be, without

the consent of the other, examined as to any communication made by

one to the other during the marriage; but this exception does not
CODE OP CIVIL PROCEDURE OP THE CANAL ZONE. 89

apply to a civil action or proceeding by one against the other, or to a criminal action or proceeding for a crime committed by one against

the other

4. An attorney cannot, without the consent of his client, be ex- amined as to any communication made by the client to him, or his

advice given thereon in the course of professional employment; nor

can an attorney's secretary, stenographer, or clerk be examined,

without the consent of client concerning any fact, the knowledge of

which has been acquired in such capacity;

5. A clergyman or priest cannot, without the consent of the person

making the confession, be examined as to any confession made to him

in his professional character in the course of discipline enjoined by

the church to which he belongs

6. A public officer cannot be examined during his term of office or afterwards as to communications made to him in official confidence,

when the court finds that the public interests would suffer by the dis- closure ; 7. Parties or assignors of parties to an action or proceeding, or per- sons in whose behalf an action or proceeding is prosecuted, against an

executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand

against the estate of such deceased person or against such person of

unsound mind, cannot testify as to personal transactions with such

deceased person, or person of unsound mind, unless the personal

representative of such person shall have first introduced proof as to such transactions.

Chapter XVT.

DUTIES OF THE CLERK OF THE CIRCUIT COURT.

Sec. 399. General duties of the clerk. —The clerk shall be the re- cording officer of all the proceedings of the court. He or his deputy

may, at any time, receive and file all complaints, answers, motions, re- ports, injunctions, orders, judgments, decrees, or other papers affecting an action or special proceeding offered for that purpose; and shall

indorse upon all such papers the time when and the party by whom

they were respectively filed, and may issue under the seal of the court,

all process authorized by law to be issued by him and proper in any

action or proceeding pending in the court of which he is clerk. He

may administer oaths in all cases where oaths are proper to be administered. He shall preserve and keep all records, files, papers, and

books belonging to his office. He shall in person or by deputy attend

all sessions of the court, and keep minute books, in which he shall record, under the direction of the judge, all the proceedings of the
90 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

court. He may issue certified copies of all papers and records within

his office, under the seal of the court. His acts shall at all times be

under the direction of the judge.

He shall also act as exofficio registrar of land titles until relieved

by law, and shall keep proper books of record which shall at all rea- sonable hours be open to the public. Sec. 400. The docket.—The minute book prescribed in the preceding section shall be called a docket, and each page thereof shall be

properly prepared for receiving all the entries appertaining to a single action. It shall contain the names of the plaintiff and defendant, the date when the complaint, answer, demurrer, bill of

exceptions, execution, and all motions, and all other papers in the

action have been filed or issued, and a brief statement of all orders,

judgments, and other proceedings therein, so that by a reference to a single page the whole history of the action may be briefly outlined.

The docket shall be duly indexed, both direct and indirect, in the

alphabetical order of the names of the parties, and of each of them,

so that the page of the docket containing the entries in each case may be readily found.

Sec. 401. New dockets.—A new docket shall be prepared by the

clerk when ordered by the court, omitting therefrom all actions

standing upon the old docket and which have been finally disposed

of before the preparation of the new docket. Upon the new docket,

actions shall be entered in the same order in which they stood upon

the last former docket and upon the page devoted to each action

shall be copied all the entries pertaining to that action contained

in the former docket. The new docket shall be indexed as provided

in the preceding section.

Sec 402. Books of final record.—Immediately after the final termination of an action in which no further proceedings, appellate or otherwise, can be had except the enforcement of the judgment,

the clerk shall record the final judgment, in a book to be kept for

that purpose, and styled " The Judgment Docket," but he shall not

record the evidence which has been taken in the action, nor any part

of the arguments of counsel; nor shall he record the pleadings or other proceedings in the action, except so far as it may be necessary

to show the important steps taken in the litigation, unless specially

ordered by the court to do so. Sec. 403. Custody of moneys paid into court.—Whenever moneys

are paid into or deposited in court, the same shall be delivered to the clerk in person, or to such of his deputies as shall be specially

authorized by his appointment in writing to receive the same. He

must keep the same subject to the order of the court and shall keep

each fund distinct, and open an account with each.
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 91

Chapter XVII.

PROCESS. Preliminary process.

Sec. 401. Commencement of actions.—Civil actions must be com- menced by filing a complaint with the clerk of the court in which the

action is to be instituted. The date of the filing of the complaint

upon which process is issued and duty served sriall be deemed to be

the true time of the commencement of the action. Sec. 405. Proceedings of clerk on -filing complaint.-—-The clerk must

endorse on the complaint the day, month, and year that it is filed; and shall forthwith issue one summons or more for calling the defendants into court. Sec. 406. Defendants residing in different circuits.—If the defendants reside in different circuits, one summons shall issue for all the defendants living in one circuit and another for all the defendants

living in another circuit, and in the same way until a summons has

been issued for all of the defendants.

Sec. 407. The summons.—The summons must be directed to the

defendant, signed by the clerk and issued under the seal of the court,

and must contain

1. The names of the parties to the action, the court in which it is brought, and the circuit in which the complaint is filed;

2. The direction that the defendant appear within ten days, if the summons is served within the Canal Zone; within forty days, if served elsewhere; and answer the complaint within the time fixed

by the rules of court

3. A notice that unless the defendant so appears and answers,

plaintiff will take judgment by default and demand from the court

the relief applied for in the complaint

4. A copy of the complaint.

Sec. 408. Summons lost or not served.—If a summons is returned

without being served upon any or all of the defendants or if it has

been lost, the clerk, upon demand of the plaintiff, may issue other

summons, as occasion may require, in the same form as the original. Sec. 409. Service of summons.—-The summons may be served by the

marshal of the Supreme Court or the marshal of the circuit where the

defendant is found, or in which service is made, or by his authorized

deputy or by the complainant, his agent or attorney. A copy of the summons and complaint must be served upon each of the defendants.

When service of the summons has been completed it must be returned

with a certificate of its service to the office of the clerk from which it

is issued. The certificate of service must state in full the time, place,

and manner of making service.
92 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

Sec. 410. Service by indifferent person.—When neither the marshal of the Supreme Court nor the marshal of the circuit nor his deputy is conveniently available for the service of a summons, the

judge or clerk of the court may. by writing indorsed upon the summons, appoint some disinterested person to serve the summons. When

the service has been completed by such disinterested person, it shall be

returned to the office of the clerk from which it issued, with a certifi- cate of the time, place, and manner of its service, signed by the party

making the service, together with an affidavit of such person that the

facts stated in his certificate are true. Sec 411. Manner of serving summons.—The summons must be

served by delivering a copy thereof, as follows:

1. If the suit is against a corporation formed under the laws of the

Canal Zone, to the President or other head of the corporation, secre- tary, cashier, or managing agent thereof

2. If the suit is against a foreign corporation, or a non-resident

joint stock company, or association doing business in and having a managing or business agent, cashier, or secretary within the Canal

Zone, to such agent, cashier, or secreta^ ; or to any agent authorized

by the corporation, joint stock company, or association to accept service for it or them

3. If against a minor under the age of thirteen years residing

within the Canal Zone, to such minor, personally, and also to his

father, mother, or guardian; or, if there be none within the Zone,

then to any person having the care or control of such minor, or with

whom he resides, or in whose service he is emplo}T ed;

4. If against a person residing within the Zone who has been judicially declared of unsound mind, or incapable of conducting his own

affairs, and for whom a guardian has been appointed, to such person

and also to his guardian

5. If against a city or municipality, to the mayor or president, or other head of the legislative department thereof, or to the clerk or secretary thereof;

6. In all other cases, to the defendant personally, or by leaving

a copy at his usual place of residence, in the hands of some person

resident therein of sufficient discretion to receive the same. But

service upon a corporation, as provided, may be made by leaving

the copy at the office of the proper officer thereof if such officer cannot

be found.

Sec 412. What equivalent to service.—An acknowledgment on

the back of a summons by the defendant or his voluntary appearance

in the action shall be equivalent to service. Sec 413. Service upon absent or unknown defendants.—AVhere the

person on whom service is to be made resides out of the Canal Zone,

or has departed therefrom, or cannot, after due diligence, be found
CODE OP CIVIL PROCEDURE OF THE CANAL. ZONE. 93

withm the Zone, or conceals himself to avoid the service of summons,

or is a foreign corporation having no managing or business agent,

cashier, or secretary within the Zone, and the fact appears by affi- davit to the satisfaction of the judge of the court where the action

is pending, and it also appears by such affidavit that a cause of

action exists against the defendant in respect to whom the service is to be made, or that he is a necessary or proper party to the action;

and when it appears by such affidavit, or by the complaint on file that it is an action which relates to. or the subject of which is, real or personal property w7 ithin the Zone, in which such person defendant or foreign corporation defendant, has or claims a lien or interest,

actual or contingent, or in which the relief demanded consists wholly

or in part in excluding such person or foreign corporation from any

interest therein, such judge may make an order that the service may

be made b}^ publication of the order which shall fix the date on whieh the defendant is required to appear.

Sec. 414. Order for service by publication.—The order must direct

the publication to be made in such newspaper or newspapers, to be

designated by the judge, as is. or are most likely to give notice to the

person to be served, and for such length of time as may be deemed

reasonable, at least once a week for three consecutive weeks: but the

last publication against a defendant residing out of the Zone, or absent therefrom, must not be less than forty days before the day

on which the defendant is required to appear. In case of publication, where the residence of a non-resident or absent defendant is known, the judge must direct a copy of the summons and complaint

to be forthwith deposited by the clerk in the postoffice, postage pre- paid, directed to the person to be served, at his place of residence.

If the residence of the defendant is unknown then to his last known

place of residence with the request to forward if not called for in

five days. When publication is ordered, personal service of a copy

of the summons and complaint outside of the Zone is equivalent to publication and deposit in the postoffice and in either case the service

of the summons is complete at the expiration of the time prescribed

by the order of publication. Said order of publication shall be

made as brief as a proper notice will permit.

Sec. 415. Proof of the service.—Proof of the service of summons

and complaint must be made, as follows

1. If served by a marshal or deputy, by his certificate thereof on

the summons;

2. If by any other person, by his affidavit thereof; or

'\. In case of publication, by the affidavit of the printer or his

foreman, or principal clerk, to which affidavit a copy of the publication shall be attached; and an affidavit showing the deposit of a 803a—07—m 7*
94 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

copy of the summons, in the postoffice, that the same has been deposited ; or

4. The written admission of the defendant. The certificate or

affidavit must state the time and place of service. Sec. 416. Service in actions affecting the title to land.—In an

action affecting- the title or right of possession of real property,

the plaintiff, at the time of filing the complaint, and the defendant,

at the time of filing his answer, when affirmative relief is claimed

in such answer, or at any time afterwards, may record in the office of the registrar of land titles in the circuit in which the property

is situated a notice of the pendency of the action, containing the real names of the parties and the object of the action, and a description

of the property in that circuit affected thereby. From the time

only of filing such notice for record shall a purchaser, or incumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action.

Chapter XVIII.

SUBPCENAS, AND COMPELLING ATTENDANCE OF WITNESSES.

Sec 417. Subpcenu or process to procure the attendance of witness.—The process by which the attendance of a witness is required

is called a subpoena. It is a writ directed to a person and requiring

his attendance at a particular time and place to testify as a witness.

It may also require him to bring with him any books, documents or other things under his control, which he is bound by law to produce

in evidence, in which case it is called a subpoena duces tecum.

Sec 418. Issuing of the subpcena.—The subpoena shall be issued as follows

1. To require the attendance before a court or at the trial of an

issue therein, it shall be issued and shall be signed by the judge or

clerk of the court before which the attendance is required and in

which the issue is pending.

2. To require attendance out of the court before a judge, justice, or other officer authorized to administer oaths, or to take testimony

in any manner under the laws of the Canal Zone, it shall be issued

by the judge, justice or other officer before whom the attendance is required

3. To require attendance before a commissioner appointed to take

testimony by a court of a foreign country or of the United States,

of any of the States of the United States, or before any officer or

officers empowered by the laws of the Canal Zone to take depositions or testimony, it may be issued by any judge of the Supreme Court,

or by any judge in places within their respective jurisdiction; with

like power to enforce attendance, and, upon certificate of contumacy
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 95

to said court, to punish contempt of their process, as such justice or judge could exercise if the subpoena directed the attendance of the

witness before their courts in a matter pending therein. Sec. 419. Service of the subpoena.—The service of a subpoena shall be made by delivering a copy thereof, attested by the officer making

the service to be a true copy, to the witness personally, giving or

offering to him at the same time, if demanded by him, the fees to which he is entitled for travel to the place designated, and one day's

attendance there. The service must be made so as to allow the wit- ness a reasonable time for preparation and travel to the place of

attendance. Such service may be made by the marshal of the

Supreme Court or of the circuit, or his deputy, or (for want thereof)

by any disinterested person specially authorized in writing up the

subpoena by the authority issuing the same to make service thereof.

Sec. 420. Service where witness is concealed.—If a witness is con- cealed in a building or vessel, so as to prevent the service of a subpoena upon him, any court, or judge, or any officer issuing a subpoena may, upon proof by affidavit of the concealment, and of the

materiality of the witness, make an order that the marshal, or his

deputy, shall forthwith serve the same, and the officer must serve it accordingly, and for that purpose may break into the building or

vessel where the witness is concealed. Sec. 421. Witness obliged to go outside the circuit to testify.—

witness upon a tender of the fees allowed by law may be required to attend and testify in any civil action before any court or judge of

the Canal Zone.

Sec. 422. Person present in court.—A person present in court before a judicial officer may be required to testify in the same manner

as if he were in attendance upon a subpoena issued by such court or

officer. Sec. 423. Disobedience to a subpoena or refusal to testify.—Disobedience to a subpoena, or a refusal to be sworn, or to answer as a

witness, or to subscribe an affidavit or deposition when required, may

be punished as a contempt by the court or officer issuing the subpoena, or requiring the witness to be sworn, and, if the witness be a party, his complaint or answer may be stricken out. Sec. 424. Civil liability of witness disobeying subpoena.—A witness, willfully and without cause, disobeying a subpoena, shall be

liable for all damages which may be sustained by reason of the fail- ure of the witness to attend, which damages may be recovered in a

civil action.

Sec. 425. Compelling attendance of witness.—In case of failure

of a witness to attend, the court or officer issuing the subpoena, upon

proof of the service thereof, and of the failure of the witness, may

issue a warrant to the marshal, or his deputy, to arrest the witness
96 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

and bring him before the court or officer where his attendance is required, and the costs of such warrant and seizure of such witness

shall be paid by the witness if the authority issuing it shall de- termine that his failure to answer the subpoena was willful and with- out just excuse. Sec. 426. // witness imprisoned.—If the witness be a prisoner confined in a jail or prison within the Zone, an order for his examination

in the jail or prison, upon deposition, or for his temporary removal

and production before a court or officer, for the purpose of being

orally examined, may be made, as follows:

1. By the court itself in which the action or special proceeding

is pending, unless it be a district court

2. By a judge of the Supreme Court or a judge of the Circuit

Court where the action or proceeding is pending before a district court, or before a judge or other person out of court. An order under subsection two hereof can only be made upon the

motion of a party upon affidavit, showing the nature of the action or proceeding, testimony expected from the witness, and its materiality.

Chapter XIX.

ARREST OF DEFENDANT.

Sec 427. Arrest.—A defendant may be arrested in the following

cases

1. In an action for the recovery of money or damages on a cause of action arising upon contract, express or. implied, when the de- fendant is about to depart from the Zone with intent to defraud his

creditors

2. In an action for money or property embezzled or fraudulently

misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty

3. In an action to recover the possession of personal property unjustly detained, when the property, or any part thereof, has been

concealed, removed, or disposed of, to prevent its being found or taken by the officer;

4. When the defendant has been guilty of a fraud in contracting

the debt or incurring the obligation upon which the action is brought

or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought

5. When the defendant has removed or disposed of his property,

or is about to do so, with intent, to defraud his creditors.

Sec 428. Who may grant order for arrest.—An order for the
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 97

arrest of the defendant must be obtained from the circuit judge or the district judge before whom the action is brought. Without such

order the defendant cannot be arrested.

Sec. 429. Granting order of arrest.—A judge shall grant an order

of arrest when it is made to appear to him by affidavit of the plaintiff, or some other person who knows the facts, that a sufficient cause of action exists, and that the cause is one of those mentioned in

section 427. If the order for arrest is made, the affidavit must be filed with the

clerk of the court or the district judge, as the case may be. Sec 430. Obligation for damages in case of arrest.—Before making the order, the party applying for it or some person on his behalf

must execute to the defendant an obligation in an amount to be fixed

by the judge and with sufficient surety, to be approved by him,

which obligation must be at least three hundred dollars, that the

plaintiff will pay all costs which may be adjudged to the defendant,

and all damages which he may sustain by reason of the arrest, if the same shall finally be adjudged to have been wrongfully made or without sufficient cause. Sec 431. Executing order of arrest.—The officer making the arrest must deliver to the defendant a copy of the affidavit and of the order

of arrest, and keep the defendant in custody until discharged by law.

Sec 432. Discharge of defendant.—The defendant, at any time

before execution, may be discharged from arrest, either upon depositing with the clerk or district judge in whose court the action is pending the amount mentioned in the order of arrest, or upon giving bail as provided in the next section.

Sec 433. Giving bail.—The defendant may give bail by causing an obligation to be executed to the plaintiff, with two or more suffi- cient sureties to be approved by the judge who granted the order of

arrest, that the defendant will at all times render himself amenable

to the process of the court, during the pendency of the action and to such as may be issued to enforce the judgment therein, or that they

will pay to the plaintiff the amount of any judgment which may be

recovered in the action.

Sec 434. Exoneration of bail.—At any time before the issuance of

execution, the sureties ma}^ surrender the defendant to the officer of

the court, who shall thereafter retain him in custody, until he is otherwise discharged by law ; and for that purpose the sureties may

themselves arrest, or, by written authority indorsed on a certified copy of the obligation, may empower the officer of the court to arrest the defendant. If the bail do not surrender the defendant or cause him to be surrendered before the issuing of execution on the judgment, they shall be finally charged on their obligation and bound to
98 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

pay upon demand the amount of the judgment, which may be col- lected from them after notice and summary hearing in the same

action, except in the cases hereinafter provided.

Sec. 435. Death or imprisonment of defendant.—Bail shall be

exonerated by the death of the defendant, or his imprisonment in a public penitentiary, or by his legal discharge from the obligation. Sec. 436. Filing order of arrest and bond.—The officer serving the

order of arrest shall immediately after perfecting the arrest file the

order with this return thereon, together with the obligation, in the

office of the clerk of the court in which the action is pending.

Sec. 437. Disposition of money deposited.—Where money has been

deposited in lieu of bail, it shall be applied under the direction of the court to the satisfaction of such judgment, if any, as may have been

rendered in favor of the plaintiff, and after satisfying the judgment

the balance shall be refunded to the defendant or his assignee. If

the judgment is in favor of the defendant, the whole sum deposited

must be refunded to him, or his assignee.

Sec. 438. Application by defendant for reduction of bail or vacat- ing order of arrest.—A defendant arrested may, at any time before

the trial of the action, apply to the judge who made the order, or to the court in which the action is pending, upon reasonable notice, to vacate the order of arrest, or to reduce the amount of bail. Upon

such application, the judge or court shall grant immediate hearing,

after notice to the parties, and, upon hearing, make such orders as appear to be just, either as to continuing the order of arrest, or vacat- ing the same, or reducing the amount of bail required.

Sec. 439. Jail limits.—A defendant arrested under this chapter and

confined to jail in the absence of bail may be given the jail limits,

either for the circuit in which the action against him is pending, or for the Canal Zone, in the discretion of the court, upon taking an

oath that he is insolvent and is unable to procure bail, and upon filing an undertaking that he will not depart from the jail limits until the

debt be paid or bail be furnished: Provided, however, that at the

expiration of one year from the time at which he may be given the

jail limits he may apply to the court for relief from the jail limits,

and the judge thereof may grant such relief and discharge from the

order of arrest, upon its being made to appear by satisfactory evi- dence that he is insolvent and by reason of any just cause has not

been able to satisfy the judgment against him.

Chapter XX.

ATTACHMENT OF DEFENDANT'S PROPERTY.

Sec. 440. Attachment.—A plaintiff may, at the commencement of

his action, or at any time afterwards, have the property of the de-
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 99

fendant not exempt from execution attached as security for the sat- isfaction of any judgment that may be recovered, unless the defendant gives security to pay such judgment, in the manner hereinafter

provided

1. In all cases providing for the arrest of a defendant; but the

plaintiff must make an election as to whether he will ask for an

order of arrest or an order of attachment; he shall not be entitled

to both orders

2. In an action against a defendant not residing in the Canal

Zone.

Sec. 441. Who may issue order of attachment.—An order for at- tachment may be granted by a judge of the Supreme Court or by a judge of the Circuit Court for the circuit in which the action is pending, or by a district judge in an action properly brought before his

court. Sec. 442. Granting order of attachment.—A judge shall grant an

order of attachment when it is made to appear to the judge by the

affidavit of the plaintiff, or of some other person who knows the

facts, that a sufficient cause of action exists, and that the case is one of those authorized by this code and that there is no other suffi- cient security for the claim sought to be enforced by the action, and

that the amount due to the plaintiff above all legal set-offs or counter- claims is as much as the sum for which the order is granted.

Sec. 443. Obligation for damages in case of attachment.—Before

the order is made, the party applying for it, or some person on his

behalf, must execute to the defendant an obligation in an amount to be fixed by the judge, and with sufficient surety to be approved by

him, which obligation shall be for a sum not less than two hundred

dollars, and not exceeding the amount claimed by the plaintiff, that

the plaintiff will pay all the costs which may be adjudged to the de- fendant, and all damages which he may sustain by reason of the

attachment, if the same shall finally be adjudged to have been wrongful or without sufficient cause. Sec. 444. Executing order of attachment as to movables.—The order

of attachment shall be served by the officer of the court by attaching

and safely keeping all the movable property of the defendant in the

Canal Zone, or so much thereof as may be sufficient to satisfy the

plaintiff's demands, unless the defendant gives security by obligation

to the plaintiff, with sufficient surety, to be approved by the judge

who granted the order of attachment, in an amount equal to the value

of the property which has been or is about to be attached. The

property so attached shall be held to await final judgment, in execution, unless released as provided in this code. Sec. 445. Executing order of attachment as to real property.—

Real property, standing upon the records in the name of the de-
100 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

fendant or not appearing at all upon the record, shall be attached

by filing with the registrar of titles of land, for the circuit in which

the land is situated, a copy of the order of attachment, together with

a description of the property attached, and a notice that it is at- tached, and by leaving a similar copy of the order, description, and

notice with an occupant of the property, if there is one. Real property or an interest therein, belonging to the defendant

and held by any other person, or standing on the records in the name

of any person, shall be attached by filing with the registrar of land

titles in the circuit in which the land is situated, a copy of the order

of attachment, together with a description of the property, and a

notice that such real property and any interest of the defendant

therein, held by or standing in the name of such other person (naming

him) are attached; and by leaving with the occupant, if any, and

with such other person, or his agent, if known and within the

circuit, a copy of the order, description and notice. The registrar

must index attachments filed under the first paragraph of this section,

in the names, both of the plaintiff and of the defendant, and must

index attachments filed under the second paragraph of this section,

in the names of the plaintiff and of the defendant and of the person

by whom the property is held or in whose name it stands on the

records.

Sec. 446. Executing order of attachment as to stocks or shares.—

Stocks or shares, or an interest in stocks or shares, of any corporation

or company shall be attached by leaving with the president, or other

head of the same, or the secretary, cashier, or other managing agent

thereof, a copy of the order of attachment and a notice stating that

the stock or interest of the defendant is attached, in pursuance of

such order.

Sec 447. Executing order of attachment as to debts and credits.—

Debts and credits, and other personal property not capable of manual

delivery, shall be attached by leaving with the person owing such debts or having in his possession or under his control, such credits and other

personal property, a copy of the order of attachment, and a notice

that the debts owing by him to the defendant, or the credits and other

personal property in his possession or under his control, belonging

to the defendant, are attached in pursuance of such order.

Sec 448. Effect of attachment of debts and credits.—All persons

having in their possession or under their control any credits or other

personal property belonging to the defendant, or owing any debts

to the defendant at the time of service upon them of a copy of the

order of attachment and notice as provided in the last section, shall

be, unless such property be delivered up or transferred, or such debts

be paid to the clerk of the court in which the action is pending,

liable to the plaintiff for the amount of such credits, property, or
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 101

debts, until the attachment be discharged, or any judgment recovered

by him be satisfied. Sec. 449. Disposition of debts and credits attached.—Any person

owing debts to the defendant, or having in his possession or under

his control any credits or other personal property belonging to the

defendant, may be required to attend before the court in which the

action is pending or before a referee appointed by the court, and be

examined on oath respecting the same. The defendant may also be

required to attend, for the purpose of giving information respecting

his property, and may be examined on oath. The court may, after

such examination, order personal property capable of manual delivery, belonging to the defendant, in the possession of the person so required to attend before the court, to be delivered to the clerk of

the court on such terms as may be just, having reference to any liens

thereon or claims against the same, to await the final result of the

action.

Sec. 450. Return of order of attachment.—The officer of the court making the attachment shall indorse upon its back a full statement

of all his proceedings under the order, including a complete inventory

of the property attached, and sign the same, and shall return the

order of attachment to the clerk of the court in which the action is pending to be filed with the other papers in the action.

Sec. 451. Disposition of perishable property.—Whenever it shall be made to appear to the judge or the court in which the action is pending, by hearing, after notice to both parties if practicable, that

the property attached is perishable, or that the interests of all the

parties to the action will be subserved by the sale thereof, the judge

may, on motion, order such property to be sold at public auction in

such manner as he maj7 direct, and the proceeds to be deposited in court to abide the judgment in the action. Sec. 452. Final disposition of property attached.—If judgment be

received by the plaintiff, the officer of the court must cause the same

to be satisfied, out of the property attached, if it be sufficient for that

purpose, in the following manner

1. By paying to the plaintiff the proceeds of all sales of perishable or other property sold by him in pursuance pf the order of the judge,

or so much as shall be necessary to satisfy the judgment.

2. If any balance remain due, and execution shall have been issued on the judgment, he shall sell under the execution so much of the

property, real or personal, as may be necessary to satisfy the balance,

if enough for that purpose remains in his hands, or in that of the

clerk of the court.

3. By collecting from all persons having in their possession credits

belonging to the defendant, or owing debts to the defendant at the
102 CODE OF CIVIL PROCEDURE OF THE CANAL. ZONE.

time of the service upon them of the order of attachment of such

credits or debts, the amount of such credits and debts as determined

by the court in the action, and stated in the final judgment, and

paying the proceeds of such collection over to the plaintiff.

The officer shall make return in writing to the court of his proceedings under this action.

Sec. 453. Collections of balance of execution.—If, after realizing

upon all the property attached, including the proceeds in extinguishment of the judgment, less the expenses of proceedings upon the

judgment, any balance shall remain due, the officer of the court must proceed to collect such balance as upon an execution in other

cases. Whenever the judgment shall have been paid, the officer, upon

reasonable demand, must deliver over to the defendant the attached

property remaining in his hands, and any proceeds of the property

attached unapplied on the judgment.

Sec 454. Proceedings after return of execution unsatisfied.—If

the execution be returned unsatisfied, in whole or in part, the plaintiff may maintain an action upon the obligations, if any, given.

Sec. 455. Disposition of attached property in case of judgment for

defendant.—If the defendant recovers judgment against the plaintiff,

all the proceeds of sales and money collected by the officer of the

court, under the order of attachment, and all the property attached

remaining in said officer's hands shall be delivered to the defendant,

and the order of attachment discharged, and the defendant may have

judgment against the plaintiff upon the obligation given for any

damages he may have sustained by reason of the attachment, after

summary hearing in the same action on due notice.

Sec. 456. Dissolution of order of attachment.—At any time, after

the commencement of an action upon which an order of attachment

has been made, the defendant may upon reasonable notice to the

plaintiff, apply to the judge who granted the order of attachment,

or to the judge of the court in which the action is pending, for an

order to discharge the attachment, wholly or in part; and the judge

shall, after hearing, on due notice to both parties, discharge the

order of attachment provided the defendant shall execute an obligation to the plaintiff with surety to be approved by the judge, to the

effect that in case the plaintiff recover judgment in the action, the

defendant will, on demand, redeliver the attached property so re- leased to the officer of the court, to be applied to the payment of the

judgment, or, in default thereof, that the defendant and surety,

will, on demand, pay to the plaintiff the full value of the property

released. The judge making such order may fix the sum for which

the undertaking must be executed, and for that purpose may take such

steps as he finds necessary to determine the value of the property

attached, which obligation shall be filed with the other papers in the
CODE OF CIVIL PROCEDURE OP THE CANAL ZONE. 103

cause, and upon its approval by the judge and the making of the

order by him for a discharge of the attachment, all of the property

so released, and all of the proceeds of the sales thereof, shall be

delivered to the defendant, the obligation aforesaid standing in

place of the property so released. Sec. 457. Discharge of attachment on motion.—The defendant

may also at any time either before or after the release of the attached

property, or before any attachment shall have been actually levied,

upon reasonable notice to the plaintiff, apply to the judge who

granted the order of attachment, or to the judge of the court in which

the action is pending, for an order to discharge the attachment on

the ground that the same was improperly or irregularly issued or was levied upon property exempt from execution. If the motion be

made on affidavits on the part of the defendant, but not otherwise,

the plaintiff may oppose the same by affidavits or other evidence in

addition to those on which the attachment was made.

If upon such application it satisfactorily appears that the writ of

attachment was improperly or irregularly issued, it must be dis- charged.

Sec 458. Right of third party, against officer.—If the property

taken be claimed by any other person than the defendant or his agent

and such person make an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serve the same upon the officer while he has possession of the

property, the officer shall not be bound to keep the property under

the attachment, unless the plaintiff, on demand of him, or his agent,

indemnify the officer against such claim by an obligation with two

sufficient sureties; and no claim to such property or damage for its seizure by any other person than the defendant or his agent shall

be valid against the officer unless so made, but nothing herein con- tained shall prevent such third person from vindicating his claim

to the property by any proper action.

Chapter XXI.

MANNER OF GIVING AND ENTERING JUDGMENT.

Sec. 459. Entering judgment.—In all cases judgment must be en- tered by the clerk in conformity with the decision, after the rendition

of the judgment, unless the court orders the case to be reserved for

argument or further consideration, or grants a stay of proceedings.

Sec. 460. When judgment reserved.—When the case is reserved for

argument or further consideration, as mentioned in the last section, it may be brought by either party before the court for argument.

Sec. 461. Judgment for affirmative relief for defendant.—If the

counter-claim established at the trial, exceeds the plaintiff's demand,
104 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

judgment for the defendant must be given for the excess; or if it appear that the defendant is entitled to any other affirmative relief,

judgment must be given accordingly.

Sec. 462. Judgment possession personal property, in contract.—In

an action to recover the possession of personal property judgment for

the plaintiff may be for the possession or the value thereof, in case a

delivery can not be had, and damages for the detention. If the property has been delivered to the plaintiff, and the defendant claim a re- turn thereof, judgment for the defendant may be had for the return of the property ; or the value thereof, in case a return can not be had,

and damages for taking and withholding the same. In an action on

a contract or obligation in writing, for the direct payment of money,

made payable in a specified kind of money or currency, judgment for

the plaintiff, whether it is by default or other decision, may follow the contract or obligation, and be made payable in United States Currency

of the value of the money or currency specified therein, at the date of

the obligation, and in all actions for the recovery of money, if the

plaintiff alleges in his complaint that the same was understood

or agreed by the respective parties to be payable in a specified

kind of money or currency, and this fact is admitted by the default

of the defendant, or established by evidence, the judgment for the

plaintiff must be made payable in United States Currency of the

value of the money or currency so alleged in the complaint, at the

date of the obligation; and in an action against any person for the

recovery of money received by such person in a fiduciary capacity or

to the use of another, judgment for the plaintiff must be made payable

in United States Currency of the value of the money or currency so received by such person at the date it was so received.

Sec. 463. Judgment where party dies.—If a party die after a judgment or decision upon any issue of fact and before judgment, the court may nevertheless, render judgment thereon. Such judgment is not a

lien on the real property of the deceased party, but is payable in the course of administration on his estate. Sec 464. Clerics dockets.—The dockets kept by the clerk are open

at all times during office hours for the inspection of the public, with- out charge. The clerk must arrange the several dockets kept by him

in such manner as to facilitate their inspection.

Chapter XXII.

EXECUTION.

Sec. 465. Issuance, form and requisites of execution.—The writ of

execution must be issued in the name of " The United States of

America, The Canal Zone," ss., sealed with the seal of the Court and

subscribed bv the clerk, and be directed to the marshal, and it must
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 105

intelligently refer to the judgment, stating the court, the circuit

where the judgment was entered, and if it be for money, the amount

thereof, and the amount actually due thereon, the execution must also

state the value of the money or currency in which the judgment is payable in United States currency, and must require the marshal substantially as follow-:

1. If it be against the property of the judgment debtor, it shall

require the marshal to satisfy the judgment, with interest, out of the

personal property of such debtor, and if sufficient personal property can not be found, then out of his real property ; or if the judgment

be a lien upon real property, then out of the real property belonging

to him on the day when the judgment was rendered or at any time

thereafter.

2. If it be against real or personal property, in the hands of the

personal representatives, heirs, devisees, legatees, tenants or trustees,

it must require the marshal to satisfy the judgment, with interest, out of such property.

3. If it be for delivery of real or personal property, it must re- quire the marshal to deliver the possession of the same, describing

it to the party entitled thereto, and may at the time require the

marshal to satisfy any costs, damages, rents or profits recovered by

the said judgment, out of the personal property of the person against

whom it was rendered, and the value of the property for which the

judgment was rendered, to be specified therein; if a delivery thereof can not be had, and if sufficient personal property can not be found,

then out of real property.

Sec. 466. Executions under special judgments.—When the judgment requires the sale of property, the same may be enforced by a writ

reciting such judgment, or the material parts thereof, and directing

the proper officer, to execute the judgment by making the sale and

applying the proceeds in conformity therewith. When the judgment

requires the performance of any other act than as above designated,

a certified copy of the judgment may be served upon the party against

whom the same is rendered, or upon the person or officer required

thereby or by law to obey the same, and obedience thereto may be

enforced by the court. Sec. 407. Judgment lien, lapse thereof.—A judgment of a court of

record shall be a lien on the real estate of the person against whom it

is obtained situated within the. circuit for which the court is held from

the time the same is rendered or revived for the period of five years

and no longer : Provided, That there shall be no priority of the lien of one judgment over that of another rendered at the same term of court. or on the same day in vacation ; and upon the filing in the office of the

clerk of any court of record in any circuit of the Zone, of a transcript

of a judgment or decree rendered in any other circuit of the Zone,
106 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

such judgment shall have the like force and effect and shall be a lien upon the real estate of the party against whom the same is obtained in said circuit where filed, and execution may issue thereon in said

circuit, in like manner as in the circuit where originally obtained.

When execution is not issued on a judgment within one year from

the time the same becomes a lien it shall thereafter cease to be a lien,

but execution may issue upon such judgment at any time within

said five years, and shall become a lien on such real estate from the

time it shall be delivered to the marshal or other proper officer, to be executed.

Sec. 468. Exemption in favor of party restrained.—-When the party

in whose favor a judgment is rendered is restrained, by injunction, or by appeal, or by the order of a judge or court, or is delayed, on ac- count of the death of the defendant, either from issuing execution or

selling thereon, the time he is so restrained or delayed shall not be

considered as any part of the time before mentioned.

Sec 469. Real estate, definition.—The term " real estate," when

used in this act shall include lands, tenements, hereditaments, and all legal and equitable rights and interest therein and thereto, including

estates for the life of the debtor or of another person, and estates for

years, and leasehold estates, when the unexpired term exceeds one

year. Sec 470. Execution on judgment.—The person in whose favor any

judgment, as aforesaid, may be obtained, may have execution thereon

in the usual form, directed to the proper officer of any circuit, in this

Zone, against the lands and tenements, goods and chattels of the per- son against whom the same is obtained, or against his body, when the same is authorized by law.

Sec 471. Execution after expiration of judgment lien.—No execution shall issue upon any judgment after the expiration of five years

from the time the same becomes a lien, except upon the revival of the same b}^ scire facias; but real estate levied upon within five years

may be sold upon a venditio rei exponas, as any time within one year

after the expiration of said five years. Sec 472. Interest on judgment.—Every execution issued upon a judgment shall direct the collection of interest thereon, from the day

of recovery of the judgment until the same is paid, at the rate of six

per centum per annum. Sec 473. Return of execution.—Executions and writs of venditio

rei exponas shall be made returnable sixty days after the date thereof.

Sec 474. Binding personal property by execution.—No execution

shall bind the goods and chattels of the person against whom it is issued, until it is delivered to the marshal or other proper officer to be executed ; and for the better manifestation of the time, the marshal

or other officer shall, on receipt of such writ, indorse upon the back
CODE OF CIVIL PROCEDURE OF THE CANAL, ZONE. 107

thereof the day of the month and year and hour wheu. he received the same.

Sec. 475. Property subject to execution.-—All and singular the

lands, tenements, real estate, goods and chattels (except such as is by

law declared to be exempt) of every person against whom any judgment has been or shall be hereafter obtained in any court of record,

for any debt, damages, costs, or other sum of money, shall be liable to be sold upon execution, to be issued upon such judgment.

Sec 476. Order of levy under execution.—The person in whose

favor execution is issued, may elect on what property not exempt

from execution he will have the same levied, provided real property

shall be last taken.

Sec 477. Property taken on execution, how sold.—When real or personal property is taken on execution, if the same is susceptible of

division it shall be sold in separate tracts, lots or articles, and only so much shall be sold as is necessary to satisfy the executivm and costs. Sec 478. Where there are concurrent judgments.—When the lien

of several judgments is concurrent, by reason of the same having been

rendered at the same term of court or on the same day in vacation, and

execution issued upon any one of such judgments is levied upon property subject to such lien, the property so levied upon shall be sold for

the benefit of all executions issued upon such judgments, and delivered

to the same officer or any of his deputies before sale; and the pro- ceeds of such sale shall be divided upon the several executions, pro

rata, according to their several amounts.

Sec 479. Advertisement of real property for sale.—No real estate shall be sold by virtue of any execution aforesaid, except at public

vendue, between the hours of nine in the morning and the setting of

the sun of the same day, nor unless the time (specifying the particular

hour of said day at which said sale shall commence) and the place of

holding such sale shall have been previously advertised three successive weeks, once in each week, in a public newspaper printed and published in the Canal Zone, or the cities of Colon or Panama, and by

putting up written or printed notices thereof in at least three of the

most public places in the circuit where the real estate is situated,

specifying the name of the plaintiff and defendant in the execution,

in all of which said notices the real estate to be sold shall be described

with reasonable certainty ; and if there shall be more than one news- paper published in the Zone, or Colon or Panama, the judgment creditor or his attorney may designate the newspaper in which such notice

shall be published : Provided, That no greater charge shall be made

for publishing said notices than two dollars for each one hundred

words contained therein.

Sec 480. Irregular sale, liability of marshal.—If any marshal or other officer shall sell any real estate by virtue of any such execution,
108 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

otherwise than in the manner aforesaid, or without such previous

notice, the officer so offending shall, for every such offense, forfeit

and pay the sum of fifty dollars to be recovered with costs of suit, by

the person whose property is sold. Provided, however, that no such

offense, nor any irregularity on the part of the marshal, or other

officer having the execution, shall be deemed to affect the validity of

any sale made under it, unless it shall be made to appear that the

purchaser had notice thereof. Sec. 481. Sale of real estate, marshal's certificate.—When any real estate is sold by virtue of an execution, judgment, or decree of fore- closure of mortgage, or enforcement of mechanic's lien, or vendor's

lien, or for the payment of money, it shall be the duty of the marshal,

or other officer, instead of executing a deed for the premises sold, to give to the purchaser a certificate describing the premises purchased

by him, showing the amount paid therefor, or if purchased by the

person in whose favor the execution or decree is, the amount of his

bid, the time when the purchaser will be entitled to a deed, unless the

premises shall be redeemed, as provided in this act. Sec 482. Filing duplicate of such certificate.—The marshal, or other officer making the sale, shall, within ten days from such sale,

file in the office of the registrar a duplicate of such certificate, which

shall be recorded by such registrar ; and such certificate or duplicate, or record, and certified copy of .the record thereof, shall be evidence

of the facts therein stated. Sec 483. Redemption of real estate sold under execution.—Any

defendant, his heirs, administrators, or assigns, or any person acting on behalf of and with the authority of the defendant, may, within

twelve months from said sale, redeem the real estate so sold by paying to the purchaser thereof, his executors, administrators or assigns or to the marshal or other officer who sold the same, or his successor

in office, for the benefit of such purchaser, his executors, administrators or assigns, the sum of money for which the premises were sold or bid off, with interest thereon at the rate of six per centum per

annum from the time of such sale, whereupon such sale and certificate shall be null and void.

Sec 484. Bight of purchaser pending redemption period—Waste.—

If the purchaser pays his bid price in cash, or credits the amount of

his bid upon the judgment of sale, he shall be entitled to be put into

possession of the property by order of court and to receive the rents and profits therefrom; otherwise the defendant shall remain in possession of the property pending the redemption period. But the

court shall, pending redemption, have power to restrain by injunction

the commission of waste upon the property at the suit of any inter

ested party.
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 109

Sec. 485. Rights of purchaser after lapse of redemption period.—

At the expiration of the period for redemption allowed under the

previous section the purchaser, his executors, heirs, or assigns, may

file a petition in the cause in which the property was sold, making a part thereof the certificate of sale, and demand the execution of a deed by the marshal, conveying the defendant's entire interest in the

property sold. If it appear to the court that the property was sold

for not less than three-fourths of its market value, to ascertain the

truth of which the court, on its own motion, or on the application of

the defendant, his executors, or heirs, or any judgment creditor may

appoint two appraisers who shall file with the court within a specified

time a sworn report estimating the actual value of the real estate sold

under execution, the court shall order the deed to be made upon the

payment of the bid price and interest, if not already paid. If it appear to the court that the property was sold for less than threefourths of its market value, or that for any other cause an injustice

has been done the defendant, the court may order a resale of the

property under such conditions with respect to advertising, and deferred payments not exceeding one year, as to the court seems equitable. There shall be no further right of redemption in the property

resold. If the price at which the property resells shall not exceed

the price paid at the first sale, together with interest, costs, and any

taxes or assessments that may have been paid by the holder of the

original certificate of purchase, a deed for the property shall be or- dered by the court to be made to the original purchaser. If the property brings more than such amount, and the sale has been fairly con- ducted, it shall be confirmed, and the court shall order a deed to be

executed by the marshal, upon the payment of the last purchase price

with interest, to the purchaser at the resale, his heirs, executors, or

assigns, and the purchase money shall be distributed as justice re- quires.

Sec 486. Deed prima facie evidence of regularity of sale.—Any

deed which has been heretofore, or which may hereafter be so ex- ecuted, or a certified copy of the record thereof, shall be prima facie

evidence that the provisions of the law in relation to the sale of the

property for which it is or may be given were complied with: and in case of the loss or destruction of the record of the judgment or decree, or of the execution or levy thereon such deed or certified copy of the

record thereof shall be prima facie evidence of the recovery and existence of the judgment or decree and issuing and levy of the

execution as therein recited. Sec 487. Perfecting execution lien in another circuit.—When a writ of execution is issued from a court of a circuit to a marshal or other officer of another circuit, and levied upon any real estate in

the latter circuit, the officer making such levy shall make a certificate 803a—07—m 8
110 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

thereof and file the same in the office of the registrar of land titles in said circuit. Until the filing of such certificate such levy shall not take effect, as against creditors and bona fide purchasers, without notice. Sec. 488. Same.—The certificate may be substantially in the fol- lowing form:

Circuit of the Canal Zone, ss: I (here state the name of the officer and the title of his office) do

hereby certify that by virtue of an execution to me directed, from

the court of , in favor of , against , dated the day of , 19—, I did, on

the day of , 19—, levy upon the following premises.

(Here describe the premises.)

(Signature.)

Sec 489. Same.—Such certificate shall be recorded by the registrar

of land titles of said circuit, in a book to be kept for that purpose.

The fee for recording such certificate shall be collected as other costs. Sec. 490. Death of plaintiff, enforcing judgment.—The collection

of a judgment or decree of a court of record shall not be delayed or hindered, or the lien created by law abate, by reason of the death of

any person in whose favor such judgment or decree shall be; but the executor or administrator, the administrator de bonis non, or with

the will annexed may cause his letters testamentary or of administration to be recorded in such court, after which execution may issue

and proceeding be had in the name of the executor or administrator

as such, in the same manner as if the judgment or decree had been

recovered in his name. Sec 491. Rights of plaintiffs executors, etc.—When it is necessary,

in order to secure the collection of a judgment or decree belonging

to any estate, it shall be the duty of the executor or administrator to bid for and become the purchaser of real estate at the sale thereof

by the marshal or other officer. The premises so purchased shall be assets in his hands, and may be again sold by him, with the

approval of the court appointing him, and the moneys arising from

such sale shall be accounted for and paid over as other moneys in

his hands.

Sec 492. Death of defendant, enforcing judgment.—When a per- son shall die after the rendition of a judgment or decree for the

payment of money against him is obtained in a court of record,

execution may issue against the real estate of such deceased person, or sale may be made under such decree without reviving the judgment

or decree against his heirs or legal representatives: Provided, That

no execution shall issue or sale be made until after the expiration of

twelve months from the death of such deceased person, nor shall any

sale be had on any such execution or decree until the person in whose
CODE OF CIVIL. PROCEDURE OF THE CANAL, ZONE. Ill

favor the judgment or decree if sought to be enforced shall give to the executor or administrator, or if there be neither, the heirs of the

deceased, at least two months' notice of the existence of such judgment or decree, before issuing execution or proceeding to sell, which

notice shall be in writing when the parties required to be notified

reside or may be found within the Zone, and their place of residence

known, otherwise publication notice shall be given as in this Code

provided.

Sec. 41)3. Property subject to execution.—All goods and chattels, real and personal, including money, majr be taken and sold on execution, except as otherwise provided by law: Provided, That when any

officer shall levy an execution on live stock, or other personal property

and the same shall not be immediately replevied or restored to the

debtor such officer shall provide for the proper care and storage of

such personal property and shall provide sufficient sustenance for the

support of such live stock until the same shall be replevied, sold or discharged from such execution. Said officer shall receive a reasonable compensation, therefor, to be ascertained and determined by the court out of which the writ issued, or any judge thereof in vacation,

to be advanced to him, from time to time, by the plaintiff in the

execution, and the amount of such compensation shall be collectible as a part of the costs in the case. Sec. 494. Officer may take indemnity bond in doubtfid cases.—If

there is reasonable doubt as to the ownership of the goods, or as to

their liability to be taken on execution, the officer may require suffi- cient security to indemnify him for taking them.

Sec 495. Delivery bond.—AVhen personal property is levied upon,

or about to be levied upon, if the defendant will give bond with

sufficient security, to be approved by the officer, payable to the creditor, in double the amount of the execution conditioned to deliver the

property levied upon uninjured at the time and place where the same

is to be sold, which shall be named in the condition, the marshal may

allow the property to remain with the defendant.

Sec 496. Same.-—If the property is not delivered according to the

condition of the bond, the officer having such execution may proceed

to execute the same in the same manner as if no levy had been made.

Sec 497. Same.—If the officer does not obtain satisfaction of the

execution, he shall return the bond with such execution, and the

creditor shall be allowed to recover thereon the amount of his judgment, with interest and cost, or if the value of the property so levied

upon shall be shown by the defendant to be less than such judgment

and cost, the value thereof, with ten per cent damages for the delay.

Sec 498. Same.—No second delivery bond shall be taken in behalf

of a defendant so failing to comply with the first, nor shall a delivery

bond be taken of his surety without the consent of the creditor.
112 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

Sec. 499. Advertisement of personal property to be sold.—Before

any goods and chattels shall be sold by virtue of any execution, at

least ten days' previous notice of such sale shall be given by posting

notices thereof in three of the most public places in the circuit where

such sale is to be, specifying the time when and place where the same

are to be sold. Sec 500. Postponement of sale.—The officer may postpone such

sale from time to time, not exceeding ten days at one time, whenever,

for want of bidders or other good cause, he shall think it for the

interest of the parties concerned. Notice of such postponement may

be given at the time and place fixed for the sale, or by posting notices as hereinbefore provided, but if the postponement exceed one day he

shall post notices thereof.

Sec 501. Return of execution against personal property.—The

officer making such sale, shall, in his return of the execution, particularly describe the goods sold, and the sum for which each article was sold ; and if he is guilty of fraud in the sale or return, he shall be liable in any proper action at the suit of the party injured, for

five times the amount of the actual damage sustained by reason of

such fraud.

Sec 502. Levying execution from district court on. real estate.—No

execution issued by a district court shall be levied upon real estate, nor shall any redemptions be made under any judgment rendered by

a district court, except when the same shall be certified into a court of record, as provided by law.

Sec 503. Fraudulent withholding of property from execution.—

Where it appears by affidavit of the judgment creditor that the debtor

fraudulently conceals any specified estates, goods, chattels, or tene- ments nonexempt from execution in order to avoid a levy upon the same, or that he fraudulently refuses to surrender the same, or that

the debtor, in anticipation of the levy of an execution, has fraudulently removed or concealed his property, the court from which the

execution issues may summon the debtor to appear before it and deal

with the debtor as in the case of contempt of court. Sec 504. What property of married woman exempt from execution

against husband.—All real and personal estate belonging to any married woman at the time of her marriage, or subsequently acquired by

her with her own earnings or propert}*, or conveyed to her by any

third party, and all the rents, issues and profits thereof, and all compensation due and owing for her personal services, is exempt from

execution against her husband.

Sec 505. Property liable to execution.—All goods, chattels, moneys,

and other property, both real and personal, or any interest therein

of the judgment debtor, not exempt by law, and all property and
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 113

rights of property seized and held under attachment in the action,

shall be liable to execution. Shares and interest in any corporation or company, and debts, credits, and all other property, both real and

personal, or any interests in either real or personal property, and all other property not capable of manual delivery, may be attached on

execution, in like manner as upon writs of attachment.

Sec. 506. Exemptions from executions.—The following property

shall be exempt from attachment and execution, except as herein

otherwise provided:

1. The debtor's homestead, in which he resides, and land necessarily used in connection therewith, both not exceeding in value two

hundred dollars;

2. Tools and implements necessarily used by him in his trade of

employment

3. Two domestic animals such as the debtor may select, not exceeding one hundred dollars in value, and necessarily used by him in his

ordinary occupation

4. His necessary clothing, and that of all his family

5. Household furniture and utensils necessary for house keeping

and used for that purpose by the debtor, such as the debtor may

select, of a value not exceeding fifty dollars;

6. Provisions actualty provided for individual or family use suffi- cient for three months

7. The professional libraries of lawyers, judges, clergymen, doctors,

school teachers, and music teachers, not exceeding two hundred and

fifty dollars in value

8. One fishing boat and net, not exceeding the total value of

twenty-five dollars, the property of any fisherman by the lawful use of which he earns a livelihood

9. Lettered gravestones.

But no articles or species of property mentioned in this section

shall be exempt from execution issued upon a judgment recovered

for its price or upon a judgment of foreclosure of a mortgage thereon.

All property other than as hereinbefore stated is subject to execution. Sec. 507. Claims by third persons to property levied on.—Property

levied on can be claimed by a third person as his property, by a written claim, verified by the oath of such claimant, setting out his

title thereto, his right to possession, stating the grounds of such title, and served upon the marshal, or his deputy, or officer making the levy.

The officer in such case is not bound to keep the property, unless the

plaintiff, or the person in whose favor the writ of execution runs, on demand, indemnify the officer against such claim b}^ an obligation,
114 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

signed by the plaintiff, with good and sufficient surety, and no claim

to such property shall be valid against the officer, or shall be received or be notice of any rights against him unless made as herein pro- vided; but nothing herein contained shall prevent such third person

from vindicating his claim to the property by any proper action.

Sec. 508. Claim by debtor that property is exempt from execution.—The defendant by a similar proceeding may also claim that the

property is exempt from execution, and the officer shall not be compelled to take it unless the plaintiff indemnify him as provided in the

last section.

Sec 509. Executions between same parties.—Executions between

the same parties, issued in their individual rights, may be set off against each other, under direction of the court. Sec 510. Several executions against same property.—Where sev- eral executions are levied upon property, the same shall be sold under

the first execution, and the proceeds of the sale shall be devoted to the discharge of the several executions in the order in wT hich they

have become liens. Sec 511. Execution against several made out of the property of

one.—When property liable to an execution against several persons is sold thereon, and more than a due proportion of the judgment is satis- fied out of the proceeds of the sale of the property of one of them, or one of them pays, without a sale, more than his proportion he may

compel a contribution from the others; and when a judgment is against several, and is upon an obligation of one of them, as security

for another, and the surety pays the amount, or any part thereof,

either by sale of his property or before sale, he may compel repayment from the principal.

Sec 512. Who may execute the officer's deed.—In case of the death

of the officer making the sale, before the expiration of the period of

redemption, the deed may be executed by his successor in office. In

case the officer's term of office expires before the termination of the

period of redemption, he may execute the deed at the expiration

of such period notwithstanding he has ceased to remain in office, and

such deed shall have the same validity as though he had continued

in the office. Chapter XXIII.

PROCEEDINGS. SUPPLEMENTARY TO THE EXECUTION.

Sec 513. Right of judgment creditor to examine debtor when exe- cution returned unsatisfied.—When an execution against property

of a judgment debtor, or of any one of several debtors in the same

judgment, issued to the marshal or his deputy, for the circuit where

the defendant resides, or, if he do not reside in the circuit, to the marshal or his deputy of the circuit where the judgment was rendered, is
CODE OF CIVIL PEOCEDUKE OF THE CANAL ZONE. 115

returned unsatisfied, in whole or in part, the judgment creditor, at any time after such return is made, shall be entitled to an order from

a judge of the Circuit Court of the circuit wherein the judgment was

rendered, requiring such judgment debtor to appear and answer

concerning property before such judge, or a referee appointed by him,

at a time and place specified in the order; but no judgment debtor

must be required to attend before a judge or referee out of the cir- cuit in which he resides or is found.

Sec. 514. Method of obtaining such examination.—After the

issuing of execution against property and upon proof, b}^ affidavit of a party or otherwise, to the satisfaction of the judge, that any

judgment debtor has property which he unjustly refuses to apply

towards the satisfaction of the judgment, such judge may, by an

order, require the judgment debtor to appear at a specified time

and place, before such judge, or a referee appointed by him, to answer concerning the same; and such proceedings may thereupon

be had for the application of the property of the judgment debtor

toward the satisfaction of the judgment as hereinafter prescribed.

Instead of the order requiring the attendance of the judgment

debtor, the judge may, upon affidavit of the judgment creditor, his

agent or lawyer, if it appear to him that there is danger of the

debtor absconding, order the officer to arrest the debtor, and bring

him before such judge. Upon being brought before the judge, he

may be ordered to enter into an undertaking, with sufficient surety,

that he will attend from time to time before the judge or referee, as may be directed, during the pendency of the proceedings, and

until final termination thereof, and will not in the meantime dispose

of any portion of his property not exempt from execution. In

default of entering into such undertaking, he may be committed to prison as for contempt.

Sec 515. Examination of debtor of judgment debtor, etc.—After

the return of an execution against the property of a judgment debtor, or of one of the several debtors in the same judgment, unsatisfied

in whole or in part, and upon proof, in writing, and by affidavit or otherwise, to the satisfaction of the judge, that a person or cor- poration has property of such judgment debtor or is indebted to him, the judge may, by an order, require such person or corporation, or any officer or member of the corporation to appear at a specified

time and place, within the circuit in which such person or corporation is served with the order, and answer concerning the same; the

service of the order shall bind the property in the possession or under the control of such person or corporation from the time of

service; and the person or corporation so served with the order

shall be liable to the judgment creditor for all property, money,

and credits in his hands belonging to the judgment debtor, or due
IK) CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

to him from such person or corporation, from the time of service;

and the person or corporation so served with the order shall be liable to the judgment creditor for all property, money, and credits in his

hands belonging to the judgment debtor, or due to him from such

person or corporation, from the time of service and the judge may

also require notice of such proceeding to be given to any party to the action, in such manner as may seem to him proper.

Sec. 516. Reference by a judge.—The judge may, in his discretion, order a reference to a referee agreed upon or appointed by him

to report the evidence or the facts. Sec 517. Proceedings to compel attendance.—A party or witness

maj7 be compelled by an order of the judge, or a subpoena, to attend

before a judge or referee to testify. If a person, party, or witness

disobeys an order of tlie judge, court, or referee duly served, he may

be punished as for contempt; and such referee may at his discretion,

report the case to the court or judge, and such court or judge may

punish for contempt the persons or party or witness so disobeying.

Sec 518. Proceedings may be continued.—The judge or referee

acting under the provisions of this chapter, may continue his proceedings from time to time, until they are completed.

Sec 519. Proceedings before a referee.—If the examination is be- fore a referee, it must be taken by the referee in writing and certified to the judge. All examinations and answers before a judge or referee

must be on oath. When a corporation answers, the answer must

be on the oath of an officer thereof.

Sec 520. Debtor may pay execution against creditor.—After the

issue of an execution against property, a person indebted to the judgment debtor may pay to the officer holding the execution the amount

of his debt, or so much thereof as may be necessary to satisfy the

execution; the officer's receipt shall be a sufficient discharge for the

amount so paid, or directed to be credited by the judgment creditor on the execution.

Sec 521. Judge may order property to be applied on execution.—

The judge may order any property of the judgment debtor or money

due to him, not exempt by law, in the hands either of himself or the

person, or the corporation, to be applied toward the satisfaction of

the judgment; but the earnings of the debtor for his personal services

at any time within one month preceding the order can not be applied

when it is made to appear by the affidavit of the debtor, or otherwise, that such earnings are necessary for the use of a family supported wholly or in part by his labor. Sec 522. Judge may appoint receiver and prohibit transfers, and

so forth.—The judge may, by order, appoint the marshal, or his

deputy of the proper circuit, or other suitable person, a receiver of
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 117

the property of the judgment debtor; and he may also, by order,

forbid a transfer or other disposition of, or any interference with, the

property of the judgment debtor not exempt by law.

Sec. 523. Liability of officer on official bond.—If the marshal, or

his deputy, be appointed receiver, he and his sureties shall be liable on his official bond as such receiver; but, if another person be appointed, he shall give an undertaking or bond as in other cases of

receivers.

Sec 524. Proceedings when the judgment debtor has interest in

real estate as mortgagee or mortgagor, or otherwise.—If it appears

that the judgment debtor has an interest in real estate, in the circuit

in which proceedings are had, as mortgagee or mortgagor, or otherwise, and his interest can be ascertained as between himself and the

person holding the legal estate, or the person having a lien on or

interest in the same, without controversy as to the interest of such

person holding such legal estate or interest therein, or lien on the same, the receiver may be ordered to sell and convey such real estate or the interest of the debtor therein; such sale shall be conducted in

all respects in the same manner as is provided for the sale of real

estate upon execution; and the proceedings of such sale shall, before

the execution of the deed, be approved by the court in which the

judgment was rendered.

Sec 525. Proceedings when indebtedness denied or another claims

the property.—If it appears that a person or corporation, alleged

to have property of the judgment debtor or to be indebted to him,

claims an interest in the property adverse to him or denies the debt,

the court or judge may authorize, by an order made to that effect,

the judgment creditor to institute an action against such person or corporation for the recovery of such interest or debt, and the court

or judge may, by order, forbid a transfer or other disposition of

such interest or debt until an action can be commenced and prose- cuted to judgment, and may punish disobedience of such order as for contempt. Such order may be modified or vacated by the judge

granting the same, or by the court in which the action is brought

at any time, upon such terms as may be just.

Chapter XXIV.

COSTS IN THE SEVERAL COURTS.

Sec 526. Costs ordinarily follow result of suit.—Costs shall ordinarily be allowed to the prevailing party as a matter of course, but the court shall have power, for special reasons, to adjudge that

either party shall pay the costs of an action, or that the same be

divided, as may be equitable.
118 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

Sec. 527. When action dismissed for want of jurisdiction.—If an

action is dismissed for want of jurisdiction, courts nevertheless shall have power to render judgment for costs as justice may require.

Sec 528. Lawyer's fees as costs.—No lawyer's fees shall be taxed

as costs against the adverse party, except as herein specially provided. But this section shall have no relation to the fees to be. charged by a lawyer as against his client. Sec 529. Restriction of costs.—If the plaintiff in any action shall recover a sum not exceeding five dollars as debt or damages, he

shall recover no more costs than debt or damages, unless the court

shall certify that the action involved a substantial and important

right to the plaintiff, in which case full costs may be allowed, not- withstanding the debt or damages do not exceed five dollars. Sec 530. Costs in District Courts.—In an action pending before a district judge, the plaintiff may recover the following costs, and

no others:

For the complaint, fifty cents. For the attendance of himself, or his counsel, or both, on the day

of trial, fifty cents. For each additional day's attendance required in the actual trial of the case, twenty-five cents. For each witness produced by him, for each day's necessary at- tendance at the trial, the witness' lawful fees. For each deposition lawfully taken by him and produced in evi- dence, two dollars and fifty cents. For original documents, deeds, or papers of any kind produced by

him, nothing.

For official copies of such documents, deeds, or papers, the lawful

fees necessarily paid for obtaining such copies.

The lawful fees paid by him for service of the summons and other

process in the action.

The lawful fees charged against him by the court in trying the

action.

If the judgment is for the defendant, he may recover the following costs, and no others

For the attendance of himself, or his counsel, or both, on the day

of trial, fifty cents. For each additional day's attendance required in the actual trial of the case, fifty cents. For each witness produced by him, for each day's necessary attend- ance at the trial, the witness' lawful fees. For each deposition lawfully taken by him and produced in evi- dence, two dollars and fifty cents. For original documents, deeds, or papers of any kind produced by

him, nothing.
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 119

For official copies of such deeds or papers, the lawful fees necessarily paid for obtaining such copies.

The lawful fees paid by him for service of any process in the

action. Sec. 531. Costs in Circuit Court.—In an action pending in a Circuit Court, the prevailing party may recover the following costs and

no others

For the complaint or answer, four dollars. For his own attendance and that of his lawyers, down to and

including final judgment, ten dollars. For each witness necessarily produced by him, for each day's nec- essary attendance of such witness at the trial the witness' lawful fees. For each deposition lawfully taken by him, and produced in

evidence, two dollars and fifty cents. For original documents, deeds, or papers of any kind produced by

him, nothing.

For official copies of such documents, deeds, or papers, the lawful

fees necessarily paid for obtaining such copies.

The lawful fees paid by him for the service of any process in the

action, and all lawful clerk's fees paid by him.

Sec 532. Costs in Supreme Court.—In an action pending in the

Supreme Court, the prevailing party may recover the following costs and no others

For his own attendance, and that of his lawyers, down to and

including final judgment, twenty dollars. For official copies of bills of exception and the printing thereof,

and all other copies required by rules of court, the sum actually paid

for the same, within the limits to be established by rules of the

Supreme Court.

All lawful fees charged against him by the clerk of a Supreme

Court, in entering and docketing the action and recording the judgment therein and for the issuing of all process. No allowance shall be made to the prevailing party in the Supreme

Court for the brief or written or printed arguments of his lawyer, or copies thereof, aside from the twenty dollars above stated. If testimony is received in the Supreme Court, not taken in an- other court and transmitted thereto, the prevailing party shall be

allowed in the Supreme Court the same costs for witness fees, depositions, and process and service thereof as he would have been allowed

for such items had the testimony been introduced in a Circuit Court.

The lawful fees of referees and commissioners in an action may

also be taxed against the defeated party, or a portion, as justice

requires.
120 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

Chapter XXV.

PROCEEDINGS IN SUPREME COURT.

General procedure of the Supreme Court and procedure on hills of

exception. Sec. 533. General procedure in tic- Supreme Court.—The Supreme

Court may, in the exercise of its appellate jurisdiction, affirm, reverse, or modify any final judgment, order, or decree of a Circuit Court,

regularly entered in the Supreme Court by bill of exceptions, appeals, or writ of error, and may direct the proper judgment, order, or

decree to be entered, or direct a new trial, or further proceedings to be had, and if a new trial shall be granted, the court shall pass upon

and determine all the questions of law involved in the case presented

by such bill of exceptions and necessary for the final determination

of the action.

Sec 534. Hearings confined to matters of law, with certain exceptions.—In hearings upon appeals, in civil actions and special proceedings, the Supreme Court shall not review the evidence taken in

the court below, nor re-try the questions of fact, except as in this sec- tion hereinafter provided ; but shall determine only questions of law

raised by the bill of exceptions. But the Supreme Court may review

the evidence taken in the court below, and affirm, reverse, or modify

the judgment there rendered, as justice may require, in the following

cases

1. If before the final determination of an action pending in the

Supreme Court on bill of exceptions, new and material evidence be

discovered by either party, which could not have been discovered before the trial in the court below by the exercise of due diligence, and

which is of such a character as probably to change the result, the

Supreme Court may receive and consider such new evidence, together

with that adduced on the trial below, and may grant or refuse a new

trial, or render such other judgment as ought, in view of the whole

case, to be rendered, upon such terms as it may deem just. The party

seeking a new trial, or the reversal of the judgment on the ground of

newty discovered evidence, may petition the Supreme Court for such new trial, and shall attach to the petition affidavits shoAving the facts entitling him to a new trial and newly discovered evidence. Upon

the filing of such petition in the Supreme Court, the court shall, on

notice to both parties, make such order as to taking further testimony

by each party, upon the petition either orally or in court, or by depositions, upon notice as it may deem just. The petition, with the evi- dence, shall be heard at the same time as the bill of exceptions;

2. If the excepting party file a motion in the Circuit Court for a new trial, upon the ground that the findings of facts are plainly and
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 121

manifestly against the weight of evidence, and the judge overrule

paid motion, and due exception be taken to his order overruling the same, the Supreme Court may review the evidence and make such

finding upon the facts, and render such final judgment, as justice and

equity require. But, if the Supreme Court shall be of the opinion

that this exception is frivolous and not made in good faith, it may

impose double or treble additional costs upon the excepting party

and may order them to be paid by the counsel prosecuting the bill of

exceptions, if in its opinion justice so requires. Sec. 535. Procedure on appeal from special proceedings.—On appeal from special proceedings had before a Circuit Court, the

Supreme Court shall determine the questions of fact from the evi- dence certified from the judge or court below, and shall also decide

all questions of law arising upon the appeal. But, if the appeal

involves such a number of items of account as to render the re- examination of the evidence by the Supreme Court inconvenient and

undul}* burdensome, the court may refer the accounting to a commissioner to be appointed by it, who shall be thoroughly competent

to adjust complicated accounts. The commissioner shall have power

to administer oaths, and to re-examine all controverted items of the

account, upon the testimony already taken and certified from the

judge or court below, and upon such further testimony as the Supreme Court shall for special reasons authorize. He shall be sworn

to a faithful performance of his duties as commissioner and shall

have power to issue subpoenas for witnesses. He shall state the

items of the account as allowed or disallowed, and report to the court

his findings of facts and his allowances or disallowances, and his

rulings upon all questions of law, and shall return to the court all testimony taken by him. The court shall thereupon render, upon

notice and hearing, such judgment as justice requires, in view of the

findings of the commissioner and of the evidence. The court shall not be bound by his findings, but may review the evidence, or may

recommit the report to the same or another commissioner for further

findings, if justice so requires. The final judgment of the Supreme

Court in such special proceedings shall be certified to the Circuit

Court immediately upon its rendition, and shall be conclusive.

Sec 536. Judge failing to sign exceptions, how compelled.—If

from any cause the bill of exceptions is not certified by the judge of

the court below, without fault of the party tendering the bill of

exceptions, such party, or his attorney, may apply at the next term

of the Supreme Court, and on petition obtain from said court a man- damus directed to the judge

1. Such petition must set out substantially the bill of exceptions

tendered, and shall be verified by oath by the lawyer as to the truth
122 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

of the bill of exceptions as tendered by the party or his lawyer and as

to the other facts stated thereon;

2. Upon the filing of such petition, the Supreme Court shall issue a mandamus directed to the judge of the Circuit Court requiring him

forthwith to make return of his reasons for not certifying the bill of

exceptions, and the judge shall forthwith make such return, and the

Supreme Court shall hear the original parties and determine the

validity of the reasons given by the judge for his failure or refusal

3. If the reasons be insufficient, or the judge fails or refuses to make any return to the mandamus, the Supreme Court shall issue a mandamus absolute, commanding the judge to sign and certify the

bill of exceptions, as set forth in the petition or as modified by the

Supreme Court

4. If he still refuses to do so, the cause shall be heard by the

Supreme Court on the exceptions as verified in the petition for

mandamus

5. In the hearing upon the judge's return, as provided in subdivision two of this section, the Supreme Court may, in its discretion,

receive other testimony than the judge's return, in determining the

validity of the reasons given by the judge for his failure or refusal to sign the bill of exceptions.

Sec 537. Dismissal of bills of exception.—Bills of exception may

be dismissed with costs, when it appears upon the face thereof that the

Supreme Court has not jurisdiction, or that the action has not been

properly brought to that court by bill of exceptions, or that the ex- ceptions have not been allowed by the judge of the Circuit Court or

for unreasonable failure to prosecute or perfect the bill of exceptions.

But no such dismissal shall be made for purely formal defects not

affecting the rights of the parties, nor for any defect which can be re- moved, and the Supreme Court shall give such reasonable time as may

be necessary to remove such defect, if it can be removed. Nor shall

such dismissal be made as a penalty upon lawyer or client for non- compliance with any rule or rules of the court, where there has been a

substantial compliance with the law prescribing the method of bringing actions into the Supreme Court; nor for any want of technical

conformity to the laws or rules regulating the practice of carrying

cases to that court, where there is enough in the bill of exceptions pre- sented to enable the court to ascertain substantially the real questions

presented in the case which the parties seek to have decided therein; nor shall such dismissal be granted whereby an amendment to the

bill of exceptions, which is hereby declared to be lawful and allowable,

and imperfections or omissions of necessary and proper allegations,

could be corrected from the record in the case. Sec. 538. Incomplete record, how corrected.—If at any time when

a case is called for trial, or during the trial, or afterwards, while the
CODE OP CIVIL PROCEDURE OF THE CANAL ZONE. 1 28

Supreme Court may have the same under consideration, it is dis- covered that the record is so incomplete that justice requires the case

to be postponed until the record can be made complete, the court shall

postpone the further consideration of the same and make such order

as may be proper and necessary to complete the record, in the interests

of justice. But the court may dismiss a bill of exceptions for failure

of the excepting party within a reasonable time to comply with the

orders made for the perfection of the bill of exceptions.

Sec. 539. Effect of dismissing hill of exceptions.—The dismissal of

a bill of exceptions by the Supreme Court will leave the action as though no bill of exceptions had ever been filed, and the judgment of

the Circuit Court may be enforced at any time after such dismissal.

But the execution shall include additional costs allowed by the Supreme Court upon the dismissal of the bill of exceptions.

Sec 540. Judgment not to be reversed on technical grounds.—No

judgment shall be reversed on formal technical grounds or for such

error as has not prejudiced the real rights of the excepting party.

Sec. 541. May order trial before another judge.—Whenever a judgment of a Circuit Court shall be reversed and a new trial be ordered,

the Supreme Court may assign one of its own members, or any judge

of another Circuit Court, to hear the action upon the new trial, in- stead of the judge whose judgment has been vacated, if, in the opinion

of the Supreme Court, fairness to the parties requires such order. Sec. 542. Procedure upon new trial.—In a new trial ordered by the

Supreme Court, all the evidence taken upon the former trial which

is competent and admissible shall be used upon the new trial without

retaking; but additional evidence may be presented upon the second

trial by either party.

Sec. 543. Certificate of judgment to be remitted to the Circuit

Court.—In all cases heard by the Supreme Court on bills of exception, its judgments shall be remitted to the Circuit Courts from which

the actions respectively came into the Supreme Court; and for this

purpose it shall be the duty of the clerk of the Supreme Court, within

ten days after the close of any term, to remit to the clerks of the

Circuit Courts, notices of all judgments of the Supreme Court in

actions brought from the Circuit Courts respectively. Upon receiving the notice so remitted, the clerk of the Circuit Court shall enter

the same upon his docket and file the notice with the other papers in

the action.

The judgment so remitted shall be executed by the Circuit Court

in the same manner as though the action had not been carried to the

Supreme Court. But the Supreme Court may, by special order,

direct any particular judgment to be remitted to the proper Circuit

Court at any time, without awaiting the end of the term.
124 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

Sec. 544. The clerk of the Circuit Court to give notice of judgments remitted.—It shall be the duty of the clerks of the Circuit

Courts, upon receiving notice of any judgment remitted by the Supreme Court, immediately in writing, to notify the counsel of all parties of the judgment that has been received.

Sec. 545. Copy of opinion certified to court below.—In all cases

in which the Supreme Court shall reverse the judgment of the court below, and remand the action to be proceeded with in such court,

by a new trial or otherwise, the clerk of the Supreme Court shall

prepare and certify a copy of the opinion of the Supreme Court in

the action, and send it with the certificate of the judgment rendered

in the action by the Supreme Court, to the clerk of the court from

which the action was brought, or to which it may be remanded ; and

the fees of the clerk for certifying the opinion shall be a part of the

taxable costs of the case in the Supreme Court; and the copy of the

opinion furnished shall be preserved by the clerk to whom it is delivered, for the use of the court and parties.

Sec 546. Excepting party not entitled to reversal as to another.—

In all actions, civil and criminal, a judgment excepted to may be

affirmed as to some of the excepting parties, and reversed as to others

and one of several excepting parties shall not be entitled to a judgment of reversal because of an error in the judgment against another

not affecting his rights in the case; and when a judgment shall be

affirmed as to some of the excepting parties and reversed as to others

the case shall thereafter be proceeded with, so far as necessary, as

if separate actions had been begun and prosecuted ; and execution of

the judgment of affirmance may be had accordingly, and costs may be

adjudged in such cases, as the Supreme Court shall deem proper.

Sec. 547. Interest on judgment affirmed.—When the Supreme

Court shall affirm a judgment of a court below, for the recovery of

money, or shall reverse a judgment of a court below, and award a sum of money as debt or damages, it shall direct that interest be

added to the original judgment or sum determined to be due, from

the date of the former judgment until the date of the final judgment,

at the rate of six per cent per annum.

Sec. 548. Extraordinary orders enforced by lower court, when.—

When judgments are rendered in injunction or other extraordinary

cases, the judges of the Circuit Court are clothed with the power to give immediate effect to them either in term time or in vacation, after

the judgment of the Supreme Court has been remitted to the Circuit

Court as above provided.

Sec. 549. Bills of exception to be printed.—The Supreme Court

may cause ten copies of all bills of exceptions to be printed, for the

use of the judges and all counsel in the case. The expense of print-
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 125

ing shall be paid primarily by the excepting party, ;md shall be taxed

as a part of costs in the case. Chapter XXVI.

PROCEEDINGS OF SUPREME COURT IN THE EXERCISE OF ITS ORIGINAL

JURISDICTION.

Sec. 550. Procedure in cases of default caused by fraud, accident, or mistake.—When a judgment is rendered by a Circuit Court upon

default, and a party thereto is unjustly deprived of a hearing by

fraud, accident, mistake, or excusable negligence, and the Circuit

Court which rendered the judgment has finally adjourned so that no

adequate remedy exists in that court, the party so deprived of a hearing may present his petition to the Supreme Court within sixty

days after he first learns of the rendition of such judgment, and not

thereafter, setting forth the facts and praying to have such judgment set aside. The court shall summarily on notice to both parties

hear such petition, upon oral or written testimony as it shall direct,

and the judgment shall be set aside and a trial upon the merits

granted, upon such terms as may be just, if the facts set forth in the

complaint are found to be true, otherwise the complaint shall be dis- missed with costs. If a trial on the merits is granted, the order shall forthwith be

certified to the Circuit Court. Pending such petition, any judge of

the Supreme Court for cause shown, may order a suspension of further proceedings to enforce the judgment complained of, upon taking

sufficient security from the petitioner for all costs and damages that

may be awarded against him in case the petition is dismissed.

'Sec. 551. Procedure in certiorari.—The Supreme Court shall have

concurrent jurisdiction with the Circuit Court in certiorari proceedings over any other inferior tribunal, board, or officer exercising

judicial functions that has exceeded the jurisdiction of such tribunal,

board, or officer and where there is no appeal or any plain, speedy, or adequate remedy, and shall likewise have original jurisdiction by

certiorari proceedings over the proceedings of Circuit Courts wherever said courts have exceeded their jurisdiction, and there is no

plain, speedy and adequate remedy by bill of exception, or appeal, or

otherwise. The proceedings of the Supreme Court in certiorari proceedings shall be the same as those provided for such proceedings

for Circuit Courts. Sec. 552. Procedure in mandamus.—The Supreme Court shall have

concurrent jurisdiction with the Circuit Courts in all cases where

any inferior tribunal, corporation, board, or person unlawfully neglects the performance of an act which the law specially enjoins as

a duty resulting from an office of trust or station, or unlawfully

SOMa—07—m 9
1:2<> CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

deludes the plaintiff from the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully excluded

>y such inferior tribunal, corporation, board, or person, and also

:shall have original jurisdiction over Circuit Courts and judges

thereof wherever said court or judge unlawfully neglects the per- formance of a duty which the law specifically or specially enjoins

as a duty imposed upon such court or judge. The procedure of the

Supreme Court in mandamus proceedings shall be the same as those

provided for mandate in this Code.

Sec. 553. Prohibition.—The Supreme Court shall have concurrent

jurisdiction with Circuit Courts over inferior tribunals, corporations,

boards, or persons, whether exercising functions judicial or ministerial, which are without or in excess of the jurisdiction of such

tribunal, corporation, board, or person, and also have original jurisdiction over Circuit Courts when such courts are exercising functions without or in excess of their jurisdiction. The proceedings

of the Supreme Court in prohibition shall be the same as those pro- vided for prohibition in this Code.

Sec. 554. Preliminary injunctions in certiorari, mandate, prohibition proceedings.—In certiorari, mandamus, and prohibition proceedings an injunction may be granted by any judge of the Supreme

Court, if in his judgment such injunction is necessary for the pres- ervation of the rights of the parties pending litigation. Sec. 555. Expediting such proceedings.—The court may, in its discretion, make such orders as it deems necessary for expediting

proceedings in petitions for certiorari, mandamus, or prohibition

proceedings.

Sec. 556. Quo warranto.—The Supreme Court shall have con- current jurisdiction with Circuit Courts over actions brought by

treason of the usurpation of a public civil office, or franchise, or an

-office in a corporation created by authority of the government of

the Canal Zone without being legally incorporated, or without lawful authority to do so; and over corporations that have forfeited

their privileges and franchise by a nonuser, and when they have

committed or omitted an act which amounts to a surrender of their

corporate rights, privileges, or franchises, or when they have misused

a franchise, privilege, or right conferred upon them.by law, or when

they have exercised a franchise, privilege, or right in contravention

of law. Its proceedings in the exercise of this original jurisdiction

shall be in accordance with the provisions of this Code.

Chapter XXVII.

the clerk or the supreme court and his duties.

Sec. 557. .The clerk.—The clerk of the Supreme Court shall care- fully keep a minute of the proceedings of the court for each day,
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 127

drawn up in a record book to be kept by him for that purpose; he

shall seasonably record the judgments, decrees, orders, and decisions

of the court. He shall safely keep all records, files, books, and papers

committed to his charge, including the library of the Supreme Court

and also all seals and furniture belonging to his office, and deliver

such records, files, books, seals, and furniture to his successor in office

and in case of refusal or failure to deliver whatever belong to his office to his successor, his bondsmen shall be holden for such refusal or

failure; he shall prepare for any person demanding the same, a

certified copy of any paper, record, decree, judgment, or entry on

file in his office, proper to be certified, for the fees prescribed by

law. He shall issue all ordinary process incident to proceedings in

the Supreme Court, not including injunctions, appointment of re- ceivers and other extraordinary functions appertaining to the court

or judge only. The transcript filed in the Supreme Court, the process

in each case, and the judgment or decree entered therein shall be

the final record in the cause in the Supreme Court, certified as such

by the clerk whenever an exemplification of a judgment or a decree

of the court may be required. Sec. 558. Dockets.—It shall be the duty of the clerk of the court

to make out and keep a general docket or register of actions and

proceedings wherein all actions and proceedings, civil and criminal,

shall be entered and numbered consecutively in the order in which

they are received. He shall enter upon his docket, under the head

of each action or proceeding, in brief form, a note of everything

done therein. He shall also prepare and keep such other books as the court shall direct. Chapter XXVIII.

SPECIAL PROCEEDINGS.

Power of judge or court in special proceedings.

Sec. 559. Any act required or authorized to be performed by a Circuit Court in special proceedings may be performed by the judge

thereof, and the orders, judgments, and decrees made by him as judge at any time, within his jurisdiction, in such proceedings, shall be equally effective as though made in open court at a regular session

thereof.

Chapter XXIX.

PROCEEDINGS IN HABEAS CORPUS.

Sec. 560. To what habeas corpus extends.—The writ of habeas

corpus shall extend to all cases of illegal confinement or detention

by which any person is deprived of his liberty, or by which the
128 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

rightful custody of any person is withheld from the person entitled

thereto, except in cases expressly excepted.

Sec. 561. Who may grant the writ.—The writ of habeas corpus

may be granted by the Supreme Court, or any judge thereof, in

term time or in vacation, and if so granted it shall be enforceable

anywhere in the Canal Zone, and it shall be enforceable before the court or any judge thereof. It may also be granted by a Circuit

Court, or a judge thereof, in term time or in vacation, and returnable

before himself, enforceable within the Canal Zone. Sec 562. Requisites of application therefor.—Application for the

writ shall be by petition signed and verified either by the party for

whose relief it is intended, or by some person for him, and shall specify

1. That the person in whose behalf the application is made is imprisoned or restrained of his liberty

2. The officer or name of the person by whom he is so confined or

restrained or, if both are unknown or uncertain, he may be described

by an assumed appellation, and the person who is served with the

writ shall be deemed the person intended

3. The place where he is so imprisoned or restrained, if known;

4. A copy of the commitment or cause of detention of such person

shall be exhibited, if it can be procured, without impairing the

efficiency of the remedy ; or, if the imprisonment or detention is without any legal authority, such fact shall appear.

Sec 563. When the writ shall not be allowed.—If it appears that

the person alleged to be restrained of his liberty is in custody of an officer under process issued by a court or magistrate, or by virtue

of a judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment,

or make the order, the writ shall not be allowed ; or if no jurisdiction appear after the writ is allowed, the person shall not be dis- charged by reason of any informality or defect in the process, judgment, or order.

Sec 564. Not to apply in certain cases.—Nothing in this chapter

shall authorize the discharge of any person convicted of an offense, or charged with an offense, committed in any other part of the Canal

Zone,or in any part of the United States, and who, agreeably to law,

ought to be delivered up to the executive power of the United States or of any State thereof, where the offense is charged to have been

committed; nor of any person suffering imprisonment under lawful

judgment.

Sec 565. When the writ must be granted.—A judge or a court authorized to grant a writ must, when a petition therefor is pre- sented, if it appear that the writ ought to issue, grant the same

forthwith.
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 12^

Sec. 566. Who to issue the writ.—The writ, upon its allowance,

shall be issued forthwith, by the clerk of the court whereof the per- son who granted it is a judge, under the seal of such court; or in case of emergency, such judge may issue the writ under his own

hand, and may depute any officer or person to serve it. Sec 567. How prisoner may he designated.—The person to be produced should be designated by his name, if known, and if not

known, or uncertain, he may be described in any other way so as to make known who is intended.

Sec 568. Requisites of -writ in certain cases.—In case of confinement, imprisonment, or detention by an officer, the writ shall be

directed to him and shall command him to have the body of such

person before the court or judge designated in the writ, at the time

and place therein specified.

Sec 569. Form of writ when prisoner not in custody of an offi- cer.—In case of confinement, imprisonment, or detention, by a per- son not an officer, the writ shall be substantially in the form fol- lowing : " United States or America,

" Canal Zone, ss: "To the marshal or his deputy of any circuit, greeting:

"We command you that the body of ,of

by of , imprisoned and restrained of his

liberty, as it is said, you take and have before , a judge

of our court (or before the court, as the case may be) or in case of his absence or disability, before some other judge of the same court at , forthwith to do and receive what the

said judge shall then and there consider, concerning him in this

behalf; and summon the said then and there to appear

before our said judge (or court) to show the cause of the taking and

detention of the said

" Witness my hand at this day of in

the year 19__.

"(Seal.) , "Judge of the Court (as the case may be)."

Sec 570. How and where writ may he served.—The writ may be

served in any circuit, by the marshal or his deputy, or by a person

deputed by the court or judge.

Sec 571. How executed and returned.—The officer or person to whom the writ is directed shall convey the person so imprisoned or

detained, and named in the writ, before the judge allowing the writ,

or, in case of his absence or disability, before some other judge of

the same court, on the day specified in the writ; and he shall make due

return of the writ, together with the day and the cause of the caption and detention of such person according to the demand thereof.
130 CODE OF CIVIL PKOCEDURE OF THE CANAL ZONE.

Sec. 572. When it may be returned to another judge or court.—

When the writ is issued by a court in session, if the court has adjourned when the same is returned, it shall be returned before any

judge of the same court; and when the writ is returned before one

judge, at a time when the court is in session, he may adjourn the

case into the court there to be heard and determined.

Sec 573. What shall be stated in the return of the writ.—When

the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other

cases, the person in whose custody the prisoner is found, shall state, in writing, to the court or judge before whom the writ was returnable

plainly and unequivocally:

1. Whether he has or has not the part}' in his custody or power

or under restraint;

2. If he has the party in his custody or power, or under restraint,

he shall set forth, at large, the authority and the true and whole

cause of such imprisonment and restraint, with a copy of writ,

warrant, execution, or other process, if any, upon which the party

is detained

3. If he has had the party in his custody or power, or under re- straint, and has transferred such custody or restraint to another,

he shall state particularly to whom, at what time, for what cause, and by what authority such transfer was made.

Sec 574. The return must be signed and sworn to.—The return

or statement shall be signed by the person who makes it; and shall also be sworn to by him. unless he is a sworn public officer, and

makes the return in his official capacity.

Sec 575. Adjournment of cause.—The court or judge to whom the

writ is returned, or the court into which it is adjourned, may, for

good cause shown, continue the cause, and shall make such order

for the safe-keeping of the person imprisoned or detained as the

nature of the cause requires.

Sec 570. When prisoner shall be discharged.—When the judge

or court has examined into the cause of caption and detention of the

person so brought before it, and is satisfied that he is unlawfully

imprisoned or detained, he shall forthwith discharge him from con- finement. On such examination the judge shall disregard matters

of form or technicalities in any warrant, mittimus, or order of com- mitment by a court or officer authorized to commit by law.

Sec 577. When prisoner may be committed to jail, or let to bail.—

When the prisoner is confined or detained in a legal manner, on a charge of having committed a crime or offense which is bailable,

the judge or court shall, in its discretion, recommit him to confinement, or " let him to bail "; if he be let to bail, the judge shall cause him to enter into a recognizance, with sufficient surety, in such a sum
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 131

as he deems reasonable—the circumstances of the prisoner, and tin nature of the offense charged, considered—conditioned for his appearance at the court where the offense is properly cognizable; tin judge shall certify his proceedings, together with the recognizance,

forthwith to the proper court; and if the person charged fail to enter- into such recognizance, he shall be committed to prison b}7 the judge.

Sec. 578. WIicn prisoner must be convmitted.—If it appear that

the prisoner was committed by a judge or justice, and is plainly

and specifically charged in the warrant of commitment with a high,

crime, punishment whereof is capital, he shall not be released, discharged, or bailed.

Sec 579. When tin return is evidence, and when only a plea.—If

it appear that the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie

evidence of the cause of detention ; but if he is restrained of his lib- erty by any alleged private authority, the return of the writ shall be- considered only as a plea of the facts therein set forth, and the partyclaiming the custody shall be held to make proof of such facts; and

upon the final disposition of any cause, the court or judge shall make such order as to costs as the case requires. Sec. 580. Penalty upon clerk for refusing to issue the writ.—If

a clerk of a court refuse to issue the writ, after allowance thereof

and demand therefor, he shall forfeit to the party aggrieved the? sum of five hundred dollars, to be recovered in a proper action.

Sec. 581. Penalty for disobeying the writ.^A person to whom ;i writ is directed, who neglects or refuses to obey or make return of

the same, according to the command thereof, or makes false return

thereof, or who. upon demand made by the prisoner or any person on his behalf, refuses to deliver to the person demanding, within

six hours after the demand therefor, a true copy of the warrant

of commitment and detainer of the prisoner shall, for the first offense forfeit to the party aggrieved two hundred dollars, and

for the second offense four hundred dollars, and may also be dealt

with by the judge of the court as for contempt.

Sec. 582. Persons set at liberty upon the writ not to be ago in imprisoned.—A person who is set at liberty upon a writ of habeas

corpus shall not be again imprisoned for the same offense unless

by the legal order or process of the court wherein he is bound l>\ recognizance to appear, or other court having jurisdiction of the

cause of offense; and a person who knowingly, contrary to the provisions of this chapter, recommits or imprisons, or causes to be

committed or imprisoned, for the same offense, or pretended offense,,

any person so set at liberty, or knowingly aids or assists therein,, shall forfeit to the party aggrieved five hundred dollar- notwithstanding any colorable pretense or variation in the warrant of
132 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

commitment, and may also be dealt with as for a contempt by the

judge or court granting the writ. Sec. 583. Prisoner not to he removed from the custody of one offi- cer to another, unless, and so forth.—A person committed to prison, or in the custody of an officer, for any criminal matter, shall not be

removed therefrom into the custody of another officer, unless by legal process, or the prisoner be delivered to an inferior officer to carry

to jail, or, by order of the proper court, be removed from one place

to another within the Canal Zone, for trial, or in case of fire, infection, insurrection, or other necessity; and a person who, after such

commitment, makes, signs, or countersigns any warrants, for such

removal contrary to this section, shall forfeit to the party aggrieved

five hundred dollars. Sec. 584. Record of writ, and so forth.—The proceedings upon a writ of habeas corpus shall be recorded by the clerks respectively.

Sec 585. Fees and costs.—The fees of officers and witnesses shall be taxed by the judge, on his return of his proceedings on the writ,

and when the prisoner is discharged, the costs shall be taxed to the

Government of the Canal Zone, and paid out of its treasury; but no office]' or person shall have the right to demand payment in ad- vance of any fees which he is entitled to by virtue of the proceedings

when the writ is demanded or issued for the discharge from custody

or the person confined under color of proceedings in any criminal

case; when a person in custody by virtue or under color of proceedings in any civil case is discharged the costs shall be taxed against

the party at whose instance he was so in custody; and if he be re- manded to custody, costs shall be taxed against him.

Chapter XXX.

GUARDIANS, THEIR APPOINTMENT, DUTIES, POWERS, AND ACCOUNTS.

Guardians of minors.

Sec. 586. Judge of Circuit Court may appoint guardian.—The

judge of a Circuit Court of each circuit, when it appears necessary or convenient, may appoint giiardians for the persons and estates, or

either of them, of minors, who have no guardian legally appointed

by will or deed, and who are inhabitants or residents of the Canal

Zone, or who reside without the Canal Zone and have estates within

the circuit. Such appointment may be made on the petition of a

relative, or other person on behalf of the minor, or on petition of the

minor, if fourteen years of age. Before making such appointment

the judge must cause such notice as he deems reasonable to be given

to any person having the care of such minor, and to such relatives

of a minor residing in the circuit as he may deem proper.
CODE OF CIVIL PEOCEDUBE OF THE CANAL ZONK. 133

Sec. 587. Spanish law as to power of family council in guardianship mutters repealed.—All provisions of Spanish law heretofore

prevailing in the Canal Zone giving to the family council any authority in the appointment of guardians for minors or other persons, are hereby repealed. Sec. 588. Father or mother natural guardians and to be appointed

guardian of estate, if competent.—The father, or. in case of his death

or legal disqualification, the mother, of a minor child is to be deemed

the natural guardian of the child, and as such is entitled to the cus- tody and care for the education of the child, but not of his estate unless so ordered by the court, preference being given in the order

just named; but the court shall have the power to set aside the

order of preference here provided and to appoint any suitable per- son as guardian, either of the person or of the estate of the minor,

or both, as the best interests of the child may require. The authority

of the guardian can not be extinguished or affected by the marriage

of the guardian.

Sec. 589. Guardian to care for minor's education.—A guardian

duly appointed shall have the custody and care of the education of

the minor, if the court shall so order, and likewise the care and management of his estate, if the court shall so order, until such minor

arrives at the age of majority, or marries, or until the guardian is legally discharged.

Sec. 590. Bond of guardian.—Before the order appointing any

person guardian under this chapter takes effect, and before letters of guardianship issue, the judge must require of such person a bond

to the minor, with sufficient surety, to be approved by the judge,

and in such sum as he shall order, conditioned that the guardian

will faihtfully execute the duties of his trust according to law, and

the following conditions shall form a part of such bond without

being expressed therein

1. To make an inventory of all the estate, real and personal, of

his ward, that comes to his possession or knowledge, and to return

the same within such time as the court may order;

2. To dispose of and manage the estate according to law for the

best interests of the ward, and faithfully to discharge his trust in

relation thereto, and also in relation to the care, custody, and education of the ward:

3. To render an account on oath of the property, estate, and moneys

of the ward in his hands, and all proceeds or interest derived therefrom, and of the management and disposition of the same, within

three months after his appointment, and at such other times as the

judge directs, and at the expiration of his trust, to settle his accounts with the Circuit Court and to pay over and deliver all the estate, moneys, and effects remaining in his hands, and due from him on
134 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

such settlement, to the person lawfully entitled thereto. Upon filing

the bond duly approved, letters of guardianship must issue from the

judge to the person appointed. The oath of the guardian shall be

indorsed thereon that he will perform the duties as such guardian

according to law. Sec. 591. Recording letters of giiardianship.—All letters of guardianship issued, and all guardians' bonds executed under the provisions of this chapter, together with the oaths thereon, must be

recorded by the clerk of the Circuit Court of the circuit within and

for which the appointment is made.

Skc 59*2. Testamentary guardians.—Every guardian appointed by

the will of a parent must give bond and qualify, and has the same

powers and has the same duties in regard to the person and estates of his ward as guardians appointed by the court, except so far as their powers and duties are legally modified, enlarged, or changed

by the will by which such guardian was appointed.

Sec. 593. Guardians ad litem not affected by this chapter.—Nothing contained in this chapter affects or impairs the power of any

court to appoint a guardian ad litem, to defend the interest of any

minor interested in any action or matter pending therein.

Guardians of persons of unsound mind.

Sec. 504 Appointment of guardians of persons of unsound mind.—

When it is represented to a Circuit Court or a judge thereof by petition verified by oath of any relative or friend, that any person who is an inhabitant or resident of the circuit, is insane or a spendthrift,

incompetent to manage his estate, praying that a guardian may be

appointed for such person, such court or judge must cause a notice

to be given to the supposed insane or incompetent person of the time

and place of hearing the petition, not less than five days before the

time so appointed; and such person, if able to attend, must be

produced on the hearing.

Sec. 595. Duty of court to appoint.—If after a full hearing and

examination upon such petition, it appears to the court or judge that

the person in question is incapable of taking care of himself and

managing his property, such court or judge must appoint a guardian

of his person and estate, with the powers and duties thereinafter

specified.

Skc. 596. Power a ml bond of </u<ir<li<in. —Every guardian ap- pointed, as provided in the preceding section, shall have the care and

custody of the person of his ward and the management of all his

estate, until such guardian is legally discharged; and he must give

bond to such ward in like manner and with like conditions as before

prescribed with reference to the guardian of a minor.
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 135

Sec. 597. Restoration of competency.—Any person who lias been

declared insane or incompetent, or the guardian or any relative of

such person within the third degree, or any friend, may apply, by

petition to the Circuit Court in which the appointment of guardian was made, and have the fact of his restoration to capacity judicially

determined. The petition shall be verified by oath, and shall state that such person is then sane and competent. Upon receiving the

petition, the court must appoint a day for hearing before the court. and shall cause notice of the trial to be given to the guardian of the

person so declared insane or incompetent and to the ward. On the

trial, the guardian, or relatives of the person so declared insane or incompetent, and in the discretion of the court any other person,

may contest the right to the relief demanded. Witnesses may be re- quired to appear and testify, and may be called and examined by the court on its own motion. If it be found that the person be of sound

mind, and capable of taking care of himself and property his

restoration to capacity shall be adjudged and the guardianship of

such person, if such person be not a minor, shall cease. Sec. 598. Gudrdiati to pay debts of ward.—Every guardian ap- pointed under the provisions of this chapter, whether for a minor or any other person, must pay all just debts due from his ward out of his

personal estate and the income of his real estate if sufficient; if not,

then out of his real estate, upon obtaining an order for the sale thereof, and disposing of the same, in the manner provided in this

Code for the sale of real estate of deceased persons. Sec 599. Guardian to settle all affairs of ward.—Every guardian

must settle all accounts of the ward, and demand, sue for, and receive

all debts clue to him, or may, with the approbation of the judge,

compound for the same and give discharges to the debtor, on receiving a fair and just dividend of the estate and effects; he must appear

for and represent his ward in all legal suits and proceedings, unless

another person be appointed for that purpose.

Sec. 600. Management of ward's estate.—Every guardian must

manage the estate of his ward frugally and without waste, and apply

the income and profits thereof, so far as may be necessary, for the

comfortable and suitable maintenance of the ward and his family, if there be any; and if such income and profits be insufficient for that

purpose, the guardian may sell the real estate, upon obtaining an

order of the judge therefor, as provided in the preceding section. He must apply the proceeds of such sale, so far as may be necessary,

for the maintenance and support of his ward and his family if there be any.

Sec. 601. Entrusting ward with a portion of his estate.—Where it

is made to appear to the court by satisfactory proof that it is to the

advantage of the ward to engage in business, the court under such
136 CODE OF CIVIL. PROCEDURE OF THE CANAL ZONE.

restrictions as it deems necessary to impose for the protection of the

ward, may authorize the guardian to entrust him with a portion of

the ward's estate, in no event to exceed one half thereof. The order

of the court shall provide that the guardian at his next accounting

shall produce vouchers or other satisfactory evidence showing that

the authorized amount of the estate has been so invested.

Sec 602. Action of guardian in partition proceedings.—-The guardian may join in and assent to a partition of the real or personal

estate of the ward, held by the ward jointly or in common with

others, after leave granted by the judge or court having jurisdiction over the estate; but such leave shall not be granted except after a

careful investigation of the necessity and propriety of the proposed

action by the judge or court, after such notice to relatives of the

ward as the judge or court may deem necessary. Sec 603. Inventory and accounts of guardians.—Every guardian

must return to the court an inventory of the estate of his ward within

three months after his appointment and annually thereafter. The

court or judge may upon application made for that purpose by any

person interested compel the guardian to render an account to the court of the estate of his ward. The inventories and accounts so

to be returned or rendered must be sworn to by the guardian. All

the estate of the ward described in the first inventory must be sworn to by the guardian. All the estate of the ward described in

the first inventory must be appraised by two appraisers appointed

and sworn by the judge. Such inventory, with the appraisement of

the property therein described, must be recorded by the clerk of the court in a proper book kept in his office for that purpose. Whenever

any other property of the ward is discovered, not included in the

inventory of the estate already returned, and whenever any other

property has been succeeded to or acquired by any ward, for his

benefit, the like proceedings must be had for the return and appraisement thereof within the time provided for the first inventory and

return. Sec 604. Settlement of guardian's accounts.—The guardian must

upon the expiration of a year, from the time of his appointment, and

as often thereafter as may be required, present his account to the court for settlement and allowance.

In the settlement of the account, the guardian shall be allowed the

amount of his reasonable expenses incurred in the execution of his

trust and also such compensation for his services as the court, in

which his accounts are settled, deems just and reasonable; but not

exceeding two dollars per day for the time actually spent, and a commission upon disbursements made by him which commission

shall be the same as that in this Code provided for disbursements

made by executors and administrators. But in cases of exceptional
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 187

importance, a larger compensation may be allowed for the services

of the guardian.

Sec. 605. Sale or reinstatement of portions of estate.—When the

income of an estate under guardianship is insufficient to maintain the

ward and his family, or to maintain and educate the ward when a minor, or when it appears to the satisfaction of the court that it is for

the benefit of the ward that his real estate or some part thereof should

be sold, and the proceeds thereof put out at interest, or invested in some productive security, or in the improvement or security of other

real estate of the ward, the guardian may present to the judge or court b}' which he was appointed a verified petition, setting forth the

condition of the estate of his ward and the facts and circumstances on which the petition is founded, tending to show the necessity or ex- pediency of the sale. If it appears to the court or judge that it is necessary or would be beneficial to the ward that the estate or some

part of it should be sold, the court shall thereupon make an order

directing the next of kin to the ward, and all persons interested in the

estate, to appear before the judge or court, at the time and place

therein specified, not less than four nor more than eight weeks from

the time of making such order, to show cause why an order should not

be granted for the sale of such estate. If it appears that it is necessary, or would be beneficial to the ward, to sell the estate, or some

portion of it, the court shall order the sale to be made and the proceeds thereof to be expended for the maintenance of the ward and his

family, or the education of the ward, if a minor, or for the putting of

the same out at interest, or the investment of the same as the circumstances may require. Upon the hearing, the court or judge shall hear

the proofs and allegation of the petitioner and next of kin, and other

persons interested, together with their witnesses, and may grant or refuse the order, as the best interests of the ward may require, and

make such order as to costs of the hearing as may be just.

If the prayer of the petition is granted, the order of sale shall specify

the causes why the sale is necessary, or beneficial, and may order the

sale to be made ; but all sales of wards' estates shall be made at public

auction to the highest bidder after public advertisement for such

time and in such manner as the court may direct, unless a private sale

is expressly authorized by the court; and no sale of a ward's real estate shall be valid to pass title thereto until the same be confirmed

by the court. The original bond of the guardian shall stand as se- curity for the proper appropriation of the sale, but the judge or court may, if deemed expedient, require an additional bond as a condition

for the granting of the order of sale. No order of sale granted in

pursuance of this section shall continue in force more than one year

after granting the same, without a sale being had. The petition,

notice to heirs, and parties interested, and order of the court or judge
138 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

in the premises, shall be recorded by the clerk of the court as a part

of the record of the guardianship.

Sec. 606. Sales must be for cash or other adequate security.—All

sales of real estate of wards must be for cash or for part cash and

part deferred payments, the credit in no case to exceed tAvo years

from the date of sale, as in the discretion of the court is deemed most

beneficial to the ward. In case of deferred payments, the guardian

must receive notes for the deferred payments secured by the retention

of a lien upon the property conveyed or by a mortgage thereon, with

such additional security, if any, as the court deems necessary. Sec 607. Reinvestment of the proceeds of sale.—The court or judge may authorize and require the guardian to invest the proceeds

of sales and any other of his ward's money in his hands, in real

estate, or in any other manner most to the interest of all concerned

and may make such other orders, and give such directions, as are needful for the management, investment, and disposition of the

estate and effects, as circumstances may require.

Sec 608. Guardian of nonresident.—When a person liable to be

put under guardianship, according to the provision of this chapter,

resides without the Canal Zone and has estate therein any friend of

such person, or any one interested in his estate, in expectancy or

otherwise, may apply to the circuit in which there is any estate of

such absent person, for the appointment of a guardian, and if, after

notice given to all interested in such manner as such court orders, by

publication or otherwise, and a full hearing and examination, it appear proper, a guardian for such absent person may be appointed

and every guardian appointed under this section shall have the same powers, and perform the same duties with respect to the estate of the ward found within the Canal Zone and with respect to the

person of the ward, if he shall come to reside therein, as are pre- scribed with respect to any other guardian appointed under this

chapter.

Such guardian must give bond in the manner and with the like conditions hereinbefore provided for other guardians, except that the

provisions respecting the inventory and the disposition of the estate and effects, and accounts to be rendered by the guardian, must be

confined to such estate and effects as come into his hands in the Canal

Zone. The guardianship which is here first lawfully granted, of any per- son residing without the Canal Zone extends to all the estate of the

ward within the Canal Zone and excludes the jurisdiction of the court of every other circuit. Sec 609. Examination of persons suspected of defrauding wards

or concealing property.—Upon complaint made to him by any guardian, ward, creditor, or other persons interested in the estate or hav-
CODE OF CIVIL PROCEDURE OP THE CANAL ZONE. 1 39

ing a prospective interest therein, as heir or otherwise against any- one suspected of having concealed, embezzled, or conveyed away, any

money, goods, or interests, or an instrument in writing belonging to the ward or to his estate, the Circuit Court or judge thereof wherein

the guardian was appointed, may cite such suspected person to appear before such court or judge, and may examine him touching such

money, goods, effects, or instrument, and may make such order as is necessary to secure the estate against such concealment, embezzlement, or conveyance.

Sec. 610. Removal and resignation of guardian.—-When a guardian, appointed either by the testator or a court becomes insane or otherwise incapable of discharging his trust or unsuitable therefor, or has wasted or mismanaged the estate, or. failed for thirty days to render an account or make a return, the judge or court may, upon

such notice to the guardian as the judge may require, remove him,

and compel him to surrender the estate of the ward to the person

found to be lawfully entitled thereto. Every guardian may resign

when it appears proper to allow the same. Upon the resignation or removal of a guardian as herein provided, whether appointed by will or otherwise, the court may appoint another in the place of the

guardian who resigns or was removed.

Sec 611. Termination of guardianship.—The marriage of a minor

ward terminates the guardianship of the person of such ward, but

not of the estate; the guardian of an insane or other person may be

discharged by the court when it appears, upon the application of

the ward or otherwise, that the guardianship is no longer necessary. Sec 612. Neto bond may be required.—The court may require a new bond to be given by the guardian whenever such court deems it necessary, and may discharge the existing sureties from further lia- bility, after due notice given, as such court may direct, when it shall be made certain that no injury can result therefrom to those interested in the estate. Sec 613. Guardian's bond to be filed and action thereon.—Every

bond given by a guardian shall be filed and recorded in the office of

the clerk of the Circuit Court of the circuit ; and in case of a breach

of the conditions thereof, may be prosecuted for the use and benefit

of the ward, or of any person legally interested in the estate. Sec 614. Limitation of action on bond.—No action can be maintained against the sureties on any bond given by a guardian, unless

it be commenced within three years from the discharge or removal

of the guardian; but if, at the time of such discharge, the person entitled to bring such action is under legal disability to sue, the action

may be commenced at any time within three years after such disability is removed.
140 CODE OF CIVIL PROCEDUBE OP THE CANAL ZONE.

Sec. 615. Limitations of action for the recovery of property sold.—

No action for the recovery of any estate sold by a guardian can be

maintained by the ward, or by any person claiming under him, unless

it is commenced within three years next after the termination of the

guardianship, or, when a legal disability to sue exists by reason of

minority or otherwise, at the time when the cause of action accrues, within three years next after the removal of such disability.

Sec GIG. Orders and guardianship proceedings to be matters of

record.—Orders appointing and removing guardians, authorizing

the sale of property, investment of the proceeds thereof, and settling

of accounts, shall be made matters of record in the Circuit Court.

Sec 617. Pending guardianships to proceed in accordance with

Spanish law, with certain exceptions.—All proceedings in cases of

guardianship pending in the Canal Zone shall proceed in accordance

with the existing Panamanian procedure under which the guardians were appointed; Prodded nevertheless, that any guardian appointed

under existing Panamanian law may be removed in accordance with

the provisions of this Code and his successor ma}'' be appointed as therein provided, and every successor to a guardian so removed shall,

in the administration of the person or estate, or either, as the case may be, of his ward, be governed by the provisions of this Code.

Chapter XXXI.

TRUSTS, TRUSTEES, AND PROCEEDINGS IN RELATION THERETO.

Trusts and Trustees. Sec 618. Procet dings when trustee under will is necessary.—If

a testator has omitted in his will to appoint a trustee in the Canal

Zone, and if such appointment is necessary to carry into effect the

provisions of a will, the Circuit Court of the circuit wherein the

property that would be affected by the trust, or some portion thereof,

is situated may, after notice to all persons interested, appoint a

trustee, who shall have the same rights, powers, and duties and in

whom the estate shall vest, in the same manner as if he had originally

been appointed by the testator. Sec 619. When trustee declines, resigns, dies, of is removed.—

When a trustee under a written instrument declines, resigns, dies, or is removed before the objects of the trust are accomplished, and

when no adequate provision is made in such instrument for supplying the vacancy, the Circuit Court wherein the will was established,

if such instrument was a will, or, if it was an instrument other than

a will, the Circuit Court wherein the property, or some portion

thereof, affected by the trust is situated shall, after due notice to all
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 141

persons interested, appoint a new trustee to act alone or jointly with

the others, as the case may be. Sec. 620. Powers and bond of new trustee.—A new trustee ap- pointed under the preceding section or appointed in place of a former

trustee, in ' conformity with a written instrument creating- a trust,

shall, upon giving such bond as may be required, which bond shall

be of sufficient size to fully protect the trust estate, and shall be

determined and the sureties thereof be approved, b}^ the judge, have

and exercise the same powers, rights, and duties, whether as a sole or

joint trustee, as if he had been originally appointed, and the trust

estate shall vest in him in like manner as it had vested, or would have

vested, in the trustee in whose place he is substituted; and the court may order any conveyances, to be made by the former trustee or his

representative, or by the other remaining trustees, which it may deem

proper and convenient, to vest the trust estate in the new trustee,

either alone or jointly with the other. Sec. 621. Trustee appointed abroad must hare new a ppohltment

here.—When lands in the Canal Zone are held in trust for persons

resident here, by a trustee who derives his appointment or authority

from a court having no jurisdiction within the Canal Zone such

trustee shall, on petition made to the Circuit Court in the circuit

in which the lands lie. and after due notice to all persons interested,

be required to take out letters of trust from said court ; and upon his

neglect or refusal to comply with such order the court shall declare

such trust vacant, and shall appoint a new trustee in whom the trust

estate shall vest in like manner as if he had been originally appointed,

or authorized by said court. Sec. 622. Notice to trustee.—The notice to the trustee required by

the preceding section, may be given by serving on him a copy of the

petition, and of the citation of the court issued thereon, fourteen

daj-s at least before the time fixed for the return of such citation, or by such other notice as the court may order. Sec. 623. Removal of trustee.—Circuit Courts in the several cir- cuits may. upon application of the parties beneficially interested in the trust, remove a trustee under a written instrument, if such re- moval appears essential in the interests of the applicant. The trustee shall have notice of the application and opportunity to be heard

and show cause why the removal should not be made. The court may also, after notice to the trustee and to all other persons interested, remove any such trustee who has become insane or otherwise in- capable of discharging his trust or evidently unsuitable therefor.

Sec 024. Resignation of trustee.—Every trustee under a written

instrument, and every trustee appointed by the court may, upon his

own request, resign his trust if it appears to the court proper to allow

such resignation.

803a—07—m 10
142 CODE OF CIVIL PROCEDURE OF THE CANAL, ZONE.

Sec. 625. Executor, etc., of former trustee not bound to accept

trust.—No person succeeding to a trust as executor or administrator

of a former trustee shall be required to accept such trust. Sec 626. Bonds of trustees.—Every trustee under a will and every

trustee appointed by the court, before entering on the duties of his

trust shall, unless it is otherwise specially provided by law, give bond

with sufficient surety or sureties, to be approved by the judge, in such sum as the judge or court having jurisdiction of the trust may order,

payable to the government of the Canal Zone and available for the

protection of any party in interest. The bond shall be lodged with

the clerk of the Circuit Court and be by him recorded in the books

of the office; and the following conditions shall be deemed to be a part of the bond, whether written therein or not:

1. To make and return to the court, at such time as it may order,

a true inventory of all the real and personal estate belonging to him

as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge;

2. To manage and dispose of all such estate, and faithfully to discharge his trust in relation thereto according to law and the will

of the testator, or the provisions of the instrument under which he

is appointed;

3. To render upon oath at least once a year until his trust is fulfilled, unless he is excused therefrom in any year by the court a true account of the property in his hands, and of the management and

disposition thereof, and also to render such account at such other

times as said court may order;

4. At the expiration of his trust to settle his account in full and

to pay over and deliver all the estate remaining in his hands, or due

from him on such settlement, to the person or persons entitled thereto. But when the trustee is appointed as a successor to a prior trustee the court may dispense with the making of return of an inventory,

if it appears to be unnecessary, in such case the conditions of the

bond shall be altered accordingly.

Sec. 627. Appraised.—When an inventory is required to be re- turned by a trustee, the estate and effects shall be appraised by two

suitable persons who shall be appointed by the court, and sworn to make a just appraisal of the estate and effects belonging to the trust. Sec 628. When bond may be dispensed with.—A trustee under a

will, except as hereinafter provided shall be exempt from giving a surety or sureties on his bond, when the testator has ordered or

requested such exemption, and any trustee shall, except as hereinafter provided, be so exempt when all persons beneficially interested

in the trust, being of full age. request such exemption; but the

trustee shall, in all eases, give his own personal bond: Provided,

nevertheless, That any trustee either under a will or appointed by
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 143

the court or judge who has not given a bond with surety or sureties,

may be required by the court or judge at any time, when it deems it proper, to give such bond.

Sec. 629. Neglect to give bond.—Any trustee who neglects to give

bond in accordance with the preceding section shall be considered

to have declined or resigned the trust. Sec 630. Sale of trust estate.—When the sale and conveyance or

transfer of any real or personal estate held in trust appears to be

necessary or expedient, the court having jurisdiction of the trust may, after notice and other proceedings, when required, order such

sale and conveyance, and transfer, to be made, and the reinvestment

and application of the proceeds of such sale in such manner as will

best effect the objects of the trust. The application to the court,

notice, hearing, order of sale, and record of proceedings, shall all be

in the manner hereinbefore provided with reference to the sale by

a guardian of the property of minors or other wards.

Sec. 631. General jurisdiction over trusts.—Circuit Courts in the

several circuits may hear and determine all matters in relation to

trusts created by will, not particularly mentioned in this chapter,

and shall have jurisdiction over all matters relating to the termination of trusts created by will, deed, or other instrument of like nature. When the Circuit Court of any circuit has lawfully taken jurisdiction of any trust estate, its jurisdiction shall be exclusive, and shall

exclude the Circuit Court of any other circuit from taking jurisdiction of any matter subsequently arising in relation to the same

trust. Chapter XXXII.

ESTATES OF deceased persons.

Settlement of estates without legal proceedings.

Sec. 632. Settlement of intestate estates, without legal proceeding,

in certain cases.—Whenever all the heirs of a deceased person are of lawful age and legal capacity, and there are no debts due from the

intestate estate, or all the debts have been paid by the heirs, the heirs

may, by a family council as known under Panamanian law, or by

agreement between themselves, duly executed in writing, apportion

and divide the estate among themselves, as they may see fit, without

proceedings in court. Sec. 633. In such case distributees liable for debts.—But if it shall appear, at any time within two years after such settlement and dis- tribution of the estate, that there are debts outstanding against the

estate which have not been paid, any creditor may compel the set- tlement of the estate in the courts in the manner hereinafter provided,

unless his debts shall be paid, with interest; and the administrator
144 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

appointed by the court may recover the assets of the estate from those

who have received them, for the purpose of paying- the debts; and

the real estate belonging to the deceased shall remain charged with

the liability to creditors for the full period of two years after such

distribution, notwithstanding any transfers thereof that may have

been made.

Chapter XXXIII.

JURISDICTION OVER ESTATES OF DECEASED PERSONS.

Sec. 634. The word jurisdiction.—Circuit Courts shall have jurisdiction in all matters relating to the settlement of estates and

probate of wills of deceased persons, the appointment and removal

of guardians and trustees, and the powers, duties, and rights of

guardians and wards, trustees, and cestuis que trustent. This jurisdiction shall be called probate jurisdiction.

Sec 635. Where resident's estate settled.—If an inhabitant of

the Canal Zone dies, whether a citizen or alien, his will shall be

proved, or letters of administration granted, and his estate settled,

in the Circuit Court in the Circuit in which he resided at the time

of his death. Sec. 636. Where nonresident'1s estate settled.—If a person resided

out of the Canal Zone at the time of his death, his will shall be

allowed and recorded, and letters testamentary or of administration

shall be granted in the Circuit Court of any Circuit in which he

lias estate. Sec. 637. The court once taking, to retain, jurisdiction.—When

a Circuit Court has first taken cognizance of the settlement of the

estate of a deceased person, as mentioned in the preceding sections,

such court shall have jurisdiction of the disposition and settlement

of such estate, to the exclusion of all other courts. Sec. 638. Jurisdiction, when may be contested.—The jurisdiction

assumed by a Circuit Court, for the settlement of an estate, so far as it depends on the place of residence of a person, or of the

location of his estate, shall not be contested in a suit or proceeding,

except in an appeal from that court, in the original case, or when

the want of jurisdiction appears on the record.

Sec. 639. The clerk.—The clerk of the court shall keep a record of

each order, sentence, or decree of the court, and of other things

proper to be recorded in the settlement of estates, and give attested copies of files, records, and proceedings of the court as in other

cases, on the fees being paid.

Sec. 640. Their copies and certificates to he evidence.—Copies,

when attested, shall be evidence in all courts: and certificates of

the allowance of a will, of administration, of guardianship, or of
CODE OF CIVIL. PROCEDURE OF THE CANAX, ZONE. 145

trusteeship, attested by the clerk, may be given in evidence and

have the same effect as an original record of the allowance of a

will, letter of administration, letters of guardianship or trusteeship. Sec. 641. Clerk to sign protest, and so forth.—The clerk may,

under the direction of the judge, make out and sign letters of administration, guardianship, and trusteeship, and the warrants or other

process or written instruments issuing from the court; but any act required to be performed by the clerk shall be valid if performed

by the judge.

Sec <*4i2. Additional duties of clerk in absence of judge.—-In the

absence of the judge, the clerk may perform all the duties of the

judge in receiving applications, petitions, inventories, reports and

the issuance of all orders and the notices that follow as a matter of

course under the directions of the law, and may also, when directed so,to do by the judge, receive the accounts of executors, administrators, and trustees, and all evidence appertaining to them, and

offered on hearings in relation to them, or in relation to any other

matters appertaining to the settlement of estate of deceased persons, or guardianship, or trusteeship, and forthwith transmit such reports,

accounts, and testimony to the judge, together with his findings in

relation to the same, if the judge shall direct him to make findings and

include the same in his report. Sec. 643. Proceedings when judge disqualified.—When a judg<>.

his wife, or child, is an heir or legatee, or when he is an executor

or administrator of the estate of a deceased person, or is interested

as a creditor or otherwise in a question to be decided by the court,

he shall not act as judge, and in such case the Supreme Court shall

designate some other judge to act in his place in relation to matters

wherein he is disqualified after the manner hereinbefore provided.

Sec. 644. Fees, and the <i<<-<>unt tliereof.—The clerk, under the

direction of the judge, shall keep a book in which shall be entered

the items of fees which have accrued for transaction of business

covered by the provisions of this chapter, for which fees are payable

specifying for what business each item of fees has accrued. Receipts

shall be given for all fees so received and they shall be accounted

for in the manner provided in relation to the fees of clerks of courts

in actions. The book of fees kept by the clerk shall be subject to the

inspection of auditing officers and others interested therein. Sec. 645. May issue process, and so forth.—In the exercise of

probate jurisdiction Circuit Courts may issue warrants and process

in conformity with the rules of law necessary to compel the attend- ance of witnesses or to cany into effect the orders, sentences, or

decrees of such courts, or the powers granted them by law.
146 CODE OF CIVIL PROCEDURE OP THE CANAL ZONE.

Sec. 646. May enforce orders by commitment.—If a person does

not perform the order, sentence, or decree of the court in the exercise

of its probate jurisdiction, it may issue a warrant for the apprehension and imprisonment of such person until he performs such order,

sentence, or decree, or is released by law : Provided, That nothing in

this section shall be construed to authorize imprisonment for ordinary

debt.

Sec 647. Depositions.—Depositions taken in accordance with the

provisions and under the circumstances provided in this Code for the

taking of depositions may be received in probate proceedings.

Sec 648. Costs.—When a person is cited, on complaint of another,

to appear before the court to be examined in probate proceedings,

the court may, in its discretion, tax costs for the person so cited and

issue execution therefor, allowing the same fees as for witnesses in

Circuit Courts.

Chapter XXXIV.

WILLS AND THE ALLOWANCE THEREOF, AND DUTIES OF EXECUTORS.

Sec 649. Who may make wills.—Every person of age and sound

mind may devise, bequeath, and dispose of his estate, real and personal, and of any right or interest which he has in his real or personal

estate, by his last will and testament ; and the words " every person,"

shall include married women : Provided, That no person can by will

deprive a husband, or wife, or heir of such interest in his estate as the law provides shall appertain to such husband, wife, or heir, not- withstanding the execution of a will. Sec 650. Peal estate acquired afterwards may pass by will.—Real

estate acquired after making a will shall pass thereby, as if the tes- tator had possessed it at the time of making the will, if it appears by

the will that such was his intention.

Sec 651. Whole interest to pass, and so forth.—Every devise of

land by will shall convey all the estate which the devisor could devise

in such land unless it clearly appears by the will that he intended to convey a less estate. Sec 652. Spanish wills.—A will executed by a Panamanian, or a

resident of the Canal Zone shall also be valid and allowed, if duly

executed in accordance with the Civil Code now in force in the Canal

Zone, whether such will be an open will or a sealed will, or one termed

a verbal will under that law, but the provisions of this Code shall

control as to the testamentary capacity of the testator, and the competency of attesting witnesses, and all such wills must be established

and the estate administered in accordance with the provisions of this

Code.

Sec 653. Requisites of a will.—No will, except as provided in the

preceding section, shall be valid to pass any estate, real or personal,
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 147

nor charge or affect the same unless it be in writing and signed by

the testator, or by the testator's name written by some other person

in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the tes- tator and of each other. The attestation shall state the fact that the

testator signed the will, or caused it to be signed by some other person,

at his express direction, in the presence of three witnesses, and that

they attested and subscribed it in his presence and in the presence of

each other. But the absence of such form of attestation shall not

render the will invalid if it is proven that the will was in fact signed

and attested as in this section provided.

Sec. 654. Custody of a will after its execution.—After the due

execution of a will, the testator may retain it in his own possession, or he may deposit it with any other person, official or corporation,

to hold for him; but it shall always be subject to his control and

direction and right of possession, down to the time of his death.

Sec 655. Who are competent witnesses.—Any person of sound

mind, and of the age of eighteen years or more, and not blind,

may be a witness at the execution of a will. Sec 656. Subsequent incompetency immaterial.—If the witnesses

attesting the execution of the will are competent at the time of

attesting, their becoming subsequently incompetent shall not prevent

the allowance of the will. Sec 657. When devise or legacy to witness void.—If a person

attests the execution of a will, to whom or to whose wife or husband,

or parent, or child, a beneficial devise, legacy, or interest, of or

affecting real or personal estate, is given by such will, such devise,

legacy, or interest shall, so far only as concerns such person, or the

wife or husband, or parent, or child, be void, unless there are three

other competent witnesses to such will, and such person so attesting

shall be admitted as a witness as if such devise, legacy, or interest

had not been made or given. But a mere charge on the real or per- sonal estate of the testator, for the payment of debts, shall not

prevent his creditors from being competent witnesses to his will. Sec 658. Will, how revoked.—No will shall be revoked, except by

implication of law, otherwise than by some will, codicil, or other

writing executed as provided in case of wills; or by burning, tear- ing, cancelling, or obliterating the same with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction.

If burned, torn, canceled, or obliterated by some other person,

without the express direction of the testator, the will may still be

established by the court, and the estate distributed in accordance

therewith, if its contents, and due execution, and the fact of its
148 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

unauthorized destruction, cancellation, or obliteration is established

by full evidence to the satisfaction of the court. Sec. 659. To he recorded with registrar of hind titles. —Attested

copies of wills devising real estate and the allowance thereof by the

court, shall be recorded in the office of the Registrar of land titles of the Circuit in which the lands lie. Sec. 660. Allowance necessary, and conclusive as to execution.—

Xo will shall pass either the real or personal estate, unless it be

proved and allowed in the Circuit Court, or by appeal to the Supreme

Court ; and the allowance by the court of a will of real or personal

estate shall be conclusive as to its due execution. Sec. 661. Custodian of will to deli re/ 1 . —The person who has the

custody of a will, shall, within thirty days after he knows of the

death of the testator, deliver the will into the court which has jurisdiction, or to the executor named in the will. Sec. 662. Executor to present trill and accept or refuse trust.—

person named as executor in a will, shall within thirty days after

he knows of the death of the testator, or within thirty days after

he knows that he is named executor, if he obtained such knowledge

after knowing of the death of the testator, present such will to the court which has jursidiction, unless the will has been otherwise

returned to said court, and shall, within such period, signify to the court his acceptance of the trust, or make known in writing his

refusal to accept it. Sec. 663. Penalty.—A person who neglects any of the duties- required in the two preceding sections, unless he gives a satisfactory excuse to the court, shall be subject to a fine not exceeding one thousand dollars. Sec. 661. Person retaining will may be committed.—If a person

having custody of a will after the death of the testator neglects

without reasonable cause to deliver the same to the court having

jurisdiction, after notice by the court so to do, he may be committed

to prison by a warrant issued by the court, and there kept in close confinement until he delivers the will. Sec 665. Court to appoint hearing on will. —AVhen a will is delivered to the court having jurisdiction of the same, the court shall appoint a time and place Avhen all concerned may appear to contest the allowance of the will, and shall cause public notice thereof to be

given by publication in such newspaper or newspapers as the court

directs of general circulation in the circuit, two weeks successively.

previous to the time appointed, and no will shall be allowed until

such notice has been given. At the hearing all testimony shall be

taken under oath, reduced to writing and signed by the witnesses. Sec. 666. How approved when not contested

—If no person appears

to contest allowance, at the times appointed, the court may grant
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 149

allowance thereof, on the testimony of one of the subscribing witnesses only, if such witness testify that the will was executed as is required in this chapter. Sec. 667. When the witness does not remember signing.—A will

may be allowed notwithstanding the fact that one or more of the

witnesses do not remember the fact of having attested it, provided

the court is satisfied from all the evidence that the will was executed

and attested in the manner herein required. Sec. 668. When the witness does not reside in the Canal Zone.—

Tf none of the subscribing witnesses reside in the Canal Zone at the

time of the death of the testator, the court may admit the testimony

of other witnesses to prove the sanity of the testator, and the due

execution of the will, although the subscribing witnesses are living;

and as evidence of the execution of the will, it may admit proof of

the handwriting of the testator and of the subscribing witnesses, in cases where the names of the witnesses are subscribed to a certificate stating that the will was executed as required in this chapter. In

case one or more of the subscribing witnesses has deceased, the sanity

of the testator and the due execution of the will may also be proven

in the manner in this section hereinbefore provided.

Sec. 669. Ground* for disallowing the trill.—The will shall be

disallowed in either of the following cases

1. If not executed and attested as in this Code or in the Civil

Code provided;

2. If the testator was insane or otherwise mentally incapable of the

execution of such an instrument at the time of its execution

3. If it was executed under duress, or the influence of fear, or

threats

4. If it was procured by undue and improper pressure and influ- ence, on the part of the beneficiary, or some other person for his

benefit

5. If the signature of the testator was procured by fraud or trick,

and he did not intend that the instrument should be his will at the

time of fixing his signature thereto. Sec. 670. Will made out of the Canal Zone.—A will made out of

the Canal Zone which might be proved and allowed by the laws of

the state or country in which it was made, may be proved, allowed,

and recorded in the Canal Zone, and shall have the same effect as if executed according to the laws of the Zone.

Sec. 671. Will made here by alien.—A will made within the

Canal Zone by a citizen or subject of another state or country,

which is executed in accordance with the law of the state or country

of which he is a citizen or subject, and which might be proved and

allowed by the law of his own state or country, may be proved,
150 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

allowed, and recorded in the Canal Zone, and shall have the same

effect as if executed according to the laws of the Zone.

Sec. 672. Wills proved outside my he allowed here.—Wills provod

and allowed in the United States, or any State or Territory thereof, or in a foreign state or country, according to the law of such State,

Territory, or country, may be allowed, filed, and recorded in the

Circuit Court of the circuit in which the testator has real or personal

estate on which such will may operate.

Sec 673. Hearing on question of allowance.—"When a copy of

such will, and the probate and allowance thereof, duly authenticated,

is produced by the executor, or other person interested, to the Circuit

Court, such court shall appoint a time and place of hearing, and

notice shall be given as in case of an original will presented for

allowance.

Sec 674. Court may order it recorded.—If it appears to the court on the hearing, that the instrument ought to be allowed in the Canal

Zone, as the last will and testament of the deceased, it shall be

allowed, and a copy shall be filed and recorded, and the will shall

have the same effect as if originally proved and allowed in the same

court. Sec 67f>. Estate, how administered.—When a will is thus allowed,

the court shall grant letters testamentary, or letters of administration

with the will annexed, and such letters testamentary or of administration, shall extend to all the estate of the testator in the Canal Zone.

Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to such will, so far as such will

may operate upon it; and the residue, if any, shall be disposed of as provided by law in cases of estates in the Zone belonging to persons

who are inhabitants of another state or country.

EXECUTORS AND ADMINISTRATORS, WHO MAY ACT, AND THEIR BONDS.

Sec 676. When will proved, letters to issue to executor.—When a

will has been proved and allowed, the court shall issue letters testa- mentary thereon to the person named as executor therein, if he accepts

the trust and gives the bond as required by law. The term " ex- ecutor " in this Code shall include an administrator.

Sec 677. To whom administration granted.—If no executor is named in the will, or if a person dies intestate, administration shall

be granted

1. To the surviving husband or wife, as the case may be, or next of

kin, or both, in the discretion of the court, or to such person as such

surviving husband or wife, or next of kin, requests to have appointed,

if suitable to discharge the trust

2. If such surviving husband or wife, as the case may be, or next
CODE OF CIVIL PROCEDURE OP THE CANAL ZONE. 151

of kin, or the person selected by them, be unsuitable, or if the husband or widow, or next of kin neglect for thirty days after the death

of the person to apply for administration, or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve

3. If there is no such creditor competent and willing to serve, the same may be committed to such other person as the court may appoint.

Sec. 678. Bond, generally.—Before an executor, or an administrator, enters upon the execution of his trust, and letters testamentary

or of administration are issued, the person to whom they are issued

shall give a bond in such reasonable sum as the court directs, with one

or more sufficient sureties, conditioned as follows

1. To make and return to the court, within three months, a true and perfect inventory of all goods, chattels, rights, credits, and estate of the deceased, which shall come to his possession or knowledge, or

to the possession of any other person for him;

2. To administer according to law, and, if an executor, according

to the will of the testator, all goods, chattels, rights, credits, and

estate, which shall at any time come to his possession, or to the possession of any other person for him, and out of the same to pay and

discharge all debts, legacies, and charges on the same, or such dividends thereon as shall be decreed by the court

3. To render a true and just account of his administration to the court within one year, and at any other time when required by the court

4. To perform all orders and decrees of the court by him to be per- formed.

Sec 679. Bond of executor who is residuary legatee.—An executor who is a residuary legatee, instead of the bond prescribed in the pre- ceding section, may give a bond in such sum, and with such sureties, as the court directs, with the condition only to pay the debts and

legacies of the testator, and in such case he shall not be required to return an inventory. If the testator in his will directs that no bond,

or only the individual bond of the executor be required, instead of

the bond prescribed in the preceding section, he may give his individual bond, as directed in the will ; but he shall also give a bond in

such sum and with such surety as the court requires, with the condition only to pay the debts of the testator; but the court may re- quire of the executor a further bond, in case of a subsequent change

in his circumstances, and for other sufficient cause, with the second,

third, and fourth conditions named in the preceding section. Sec. 680. Bonds of joint executors and administrators.—When two

or more persons are appointed administrators or executors, the court
152 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

may take separate bond from each, with sureties, or a joint bond, with

sureties from all. Sec. 681. Executor neglecting to give bond.—No person named

executor in a will, who refuses to accept the trust, or neglects to give

a bond, for twentj' days after the allowance of such will, shall inter- meddle or act as executor, and in case of such neglect to accept, or

refusal to give bond, the court may grant letters testamentary to the other executors who are capable and willing to accept the trust; and if there is no other executor who will give a bond, administration shall be granted with the will annexed to the person who would

have been entitled to the same if the testator had died intestate. Sec 682. When creditor is <t minor.—When a person named ex- ecutor in a will is under age at the time of proving the will, administration shall be granted, with the will annexed, during the minority

of the executor, to the person who would have been entitled to the same if the testator had died intestate, unless there is another executor who accepts the trust and gives the bond and in that case, the

executor who gives a bond shall have letters testamentary, and shall administer the estate until the minor is of age, when he may be

admitted, on giving a bond, as joint executor. Sec. 683. Executor of executor not to administer estate—The ex- ecutor of an executor shall not, as such, administer the estate of the

first testator. DEATH, REMOVAL, ETC., OF EXECUTOR OR ADMINISTRATOR.

Sec. 684. /// case of vacant //. mho to administer.—When an executor or administrator, dies, resigns, or is removed, or his authority is extinguished, the remaining executor or administrator may administer the trust, and if there is no other executor or administrator,

administration may be granted to a suitable person. Sec 685. Power of new administrator.—An administrator, ap- pointed in the place of a former executor or administrator, shall have

the same power in settling the estate not administered as the former

administrator or executor had; and may prosescute or defend actions

commenced by or against the former executor or administrator, and

may have execution on judgments recovered in the name of such

former executor or administrator.

Sec. 686. Appointment of administrator to act with survivor.—

When an executor or administrator dies, resigns, is removed, or his

authority is extinguished leaving a remaining executor or administrator, administration may be granted to some suitable person,

with such remaining executor or administrator upon the application

of any person interested in the estate of the deceased, as surviving

husband, widow, heir-, creditor, devisee, legatee, or other legal representative.
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 153

Sec. 687. His powers.—An administrator appointed under the pre- ceding section shall have the same power as the remaining- executor

or administrator lias, and with said executor or administrator may

prosecute or defend actions commenced by or against the former

executors or administrators, and have execution on judgments re- covered in the names of the former executors or administrators. Sec. 088. The court may re more or accept resignations of executor or administrator.—If an executor or administrator neglects, after

notice by the court, to render his account and settle the estate ac- cording to law, or to perform an order or decree of such court, or absconds, or becomes insane, or otherwise incapable or unsuitable

to discharge the trust, the court may. in its discretion, remove him,

and may allow an executor or administrator to resign. Sec. 689. Married women.—A married woman may be administratrix or executrix, and the marriage of a single woman shall not affect her authority so to act under a previous appointment.

Sec. 600. One of co-executors disqualified, other* may act.—When

executors appointed in a will cannot, according to the provisions of

this chapter, act as such, those who can act may perform the duties

and discharge the trust required by the will. Sec. 691. Estate of person unheard from for fifteen year* may he

administered.—A person absent and unheard from for fifteen years

.shall be deemed to be dead from the time of his disappearance, or when last heard from, and the court having jurisdiction of his estate may grant administration thereof, and proceed with said estate as

in the settlement of intestate estates and decree distribution thereof

to the known heirs of such absent person; but if such absent person

proves to be alive, he shall be entitled to his estate notwithstanding

the settlement and distributions aforesaid, and may recover, in any

proper action, any portion thereof, which any (me has received in such

settlement and distribution. Sec. 692. Administration re coked if will discovered.—If, after

granting letters of administration by a court on the estate of a person as if he had died intestate, a will of such deceased person is proved and allowed by the court, the letters of administration shall be revoked and the powers of the administrator cease, and he shall thereunder surrender the letters of administration to the court, and

render his account within such time as the court directs. Sec. 693. Power of executor in such case.—The executor of the

will, in such case, may demand, sue for, and collect the goods, chattels, rights, and credits, of the estate of the deceased remaining unadtninistered, and may prosecute to final judgment suits commenced by

the administrator before the revocation of his letters of administration.
154 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

Sec. 694. Acts hefore revocation to be valid.—The acts of an ex- ecutor or administrator, before the revocation of his letters testa- mentary or of administration, shall be valid, the same as if there

had been no revocation.

Sec 695. Appointment of special administrator.—When there is delay in granting letters testamentary or letters of administration

occasioned by an appeal from the allowance or disallowance of a

will, or from any other cause, the court may appoint an administrator to act in collecting and taking charge of the estate of the

deceased until the questions causing the delay are decided and

executors or administrators are thereupon appointed; no appeal

shall be allowed from the appointment of such special administrator.

Sec 696. Powers of special administrator.—Such special administrator shall collect the goods, chattels, and credits of the deceased and

preserve the same for the executor or administrator afterwards ap- pointed, and for that purpose may commence and maintain suits as an administrator, and may sell such perishable and other personal

property as the court orders sold. A special administrator shall not

be liable to an action by a creditor, or pay any debts of the deceased.

Sec 697. To give bond.—A special administrator shall, before

entering upon the duties of his trust give a bond as the court directs,

with a condition that he will make and return a true inventory of

the goods, chattels, rights, credits, and effects of the deceased which come to his possession or knowledge, and that he will truly account

for such as are received by him, when required by the court, and will

deliver the same to the person afterwards appointed executor or administrator or such person authorized to receive the same. Sec 698. When powers cease.—Upon granting letters testamentary

or of administration upon the estate of the deceased, the powers of

such special administrator shall cease; and he shall forthwith deliver

to the executor or administrator the goods, chattels, money, and

effects of the estate of the deceased in his hands. The executor or administrator may prosecute to final judgment suits commenced by

such special administrator.

Chapter XXXV.

GENERAL DUTIES OF EXECUTORS AND ADMINISTRATORS.

Sec 699. Executor or administrator may have access to partnership books.—The executor or administrator of a deceased partner

shall at all times have access to, and may make examination and take

copies of the books and papers relating to the partnership business;

and shall at all times have the right to examine and make invoices

of the property belonging to such partnership, and the surviving
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 155

partner or partners, on request, shall exhibit to him all such books,

papers, and property in their hands or control. Sec. 700. Court may enforce compliance.—The court having charge

of the settlement of such deceased partner, upon application therefor

in writing, by such executor or administrator, may cite such surviving partner or partners before it, and by a proper order or decree

compel the granting of the rights given in the preceding section, and

may enforce such order or decree by commitment to jail.

Sec 701. To keep buildings in repair.—An executor or administrator shall maintain in tenantable repair the houses, buildings, and

fences belonging to the estate, and deliver the same in such repair

when directed by the court, to the heirs or devisees.

Sec. 702. Executor to administer estate not willed.—An executor

shall administer the estate of the testator not disposed of by will. INVENTORY, APPRAISAL, AND ACCOUNT.

Sec. 703. Inventory to be returned.—Every executor or administrator, unless he is a residuary legatee and has given the bond pre- scribed for the residuary legatee, shall, within three months after his

appointment, return to the court a true inventory of the real estate and all the goods, chattels, rights, and credits of the deceased which come into his possession or knowledge.

Sec. 704. Committee to be appointed.—The court at the time of

granting letters testamentary or of administration, or at such other

times as it deems proper, shall, by warrant, appoint a committee of

two or more disinterested persons to appraise the estate of the deceased, and the executor or administrator shall cause the estate and

effects in the inventory to be appraised by such committee.

Sec. 705. Committee to be sworn.—Such committee shall be sworn

to make a true appraisal, and shall appraise its value in money, and

shall return their warrant with such appraisal to the court within

the time specified in the warrant, and shall deliver a copy of the

appraisal to the executor or administrator.

Sec. 706. Apparel, and so forth, not to be inventoried.—The wearing apparel of the surviving husband or wife, and of the minor

children, and such provisions and other articles as will necessarity

be consumed in the subsistence of the family of the deceased, under

the direction of the court, shall not be considered as assets, nor

administered as such, and shall not be included in the inventory.

Sec. 707. Account to be rendered and examination to be under

oath.—Every executor or administrator shall render an account of his

administration within one year from the time of receiving letters testamentary or of administration unless the court extends the time on account of an extension of the time for selling the estate and
156 CODE OF CIVIL PROCEDURE OP THE CANAL ZONE.

paying the debts; and he shall render further accounts of his administration as may be required by the court until the estate is wholly settled; and he may be examined upon oath upon every

matter relating to account. Sec. 708. For what to account.—The executor or administrator

shall be chargeable in his account with the goods, chattels, rights,

and credits of the deceased which come to his possession; also with

the proceeds of the real estate sold for the payment of the debts

and legacies, and with the interest, profit, and income which come to his hands from the estate of the deceased; and for the personal

estate of the deceased at its appraisal except as hereafter provided.

Sec. TO'.). Not to profit by increase or to lose by decrease in value.—

The executor or administrator shall not profit by the increase nor

suffer loss by the decrease or destruction, without his fault of an}'

part of the personal estate; and he shall account for the excess when

he sells any personal estate for more than the appraisal; and if he

sells for less than the appraisal he shall not be responsible for the

loss, if it appears to be beneficial to the estate to sell it. When he

sells personal estate under the special order of the court, he shall account for the same at the price for which it was sold. Sec. 710. Accountable for proceeds of real estate sold.—The pro- ceeds of real estate sold for the payment of the debts and charges of

administration, shall be assets in the hands of the administrator, as

if the same had been part of the goods and chattels of the deceased.

The executor or administrator and sureties on his bond shall be ac- countable therefor.

Sec. 711. When not accountable for debts due.—No executor or administrator shall be accountable for the debts due the deceased if

it appears that they remain uncollected without his fault. Sec. 712. Accountable for income from realty.—The executor or administrator shall account for the income of real estate while it re- mains in his possession; and if he uses or occupies any part of it himself, he shall account for it as may be agreed upon between him

and the parties interested, or adjusted by the court with their assent; and if the parties do not agree upon the sum to be allowed, the same may be ascertained by the court, whose determination in this respect shall be final. Sec. 713. Accountable if he improperly neglects to raise money.—

When an administrator neglects, or unreasonably delays, to raise

money, by collecting the debts or selling the real or personal estate of the deceased, or neglects to pay over the money he has in his

hands, and the value of the estate is thereby lessened or necessary

costs or interest accrues, or the persons interested suffer loss, the same shall be deemed waste, and the damage sustained may be
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 157

charged and allowed against him in his account, and he shall be

liable therefor on his bond.

Sec. 714. To be allowed money paid as costs, when.—The amount

paid by an executor or administrator for costs awarded against him

shall be allowed in his administration account, unless it appears that

the suit or proceedings in which the costs are taxed was prosecuted

or resisted without just cause, and not in good faith. Sec 715. How allowed for services.—The executor or administrator shall be allowed the necessary expenses in the care, management, and settlement of the estate, and for his services, two dollars

per day for the time actually and necessarily employed and a commission of five per cent upon all sums disbursed in the payments

of debts, expenses, and distributive shares, if the amount of such

disbursements does not exceed one thousand dollars. If the amount

exceeds one thousand dollars and does not exceed five thousand dollars, then five per cent upon the first one thousand dollars and two

and one half per cent upon the excess, if the whole amount does not

exceed ten thousand dollars. If the total disbursements exceed five thousand dollars, then the percentage as above provided, and one

per cent on the excess above ten thousand dollars. Where there are more than one executor the fees shall be divided between them, except

that on estates exceeding ten thousand dollars each executor shall

receive one per cent upon the excess over ten thousand dollars. In

any exceptional case, where the estate is large, and the settlement has

been attended with extraordinary difficulty, and has required a high

degree of capacity on the part of the executor or administrator, a greater sum may be allowed. But if objection to the fees allowed

be taken the allowance may be reexamined by the Supreme Court on

appeal.

When the administrator or executor is a lawyer, he shall not be

allowed to charge against the estate any professional fees, as such,

for services rendered by himself. When the deceased by will makes

some other provision for compensation to his executor, that provision

shall be a full satisfaction for his services, unless by a written in- strument filed in the court he renounces all claims to the compensation provided by the will. Sec 716. Account, how verified.—The court shall examine every

executor and administrator upon oath as to the correctness of his

account, before the same is allowed, except when no objection is made to the allowance of the account, and its correctness is satis- factorily established by competent testimony. The heirs, legatees,

and distributees, and creditors of an estate, shall have the same privilege of being examined on oath in any matter relating to an administration account that the executor or administrator has. 803a—07—m 11
158 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

Sec. 717. Account to he settled on notice.—Before the account of an executor or administrator is allowed, notice shall be given to per- sons interested of the time and place of examining and allowing the same ; and such notice may be given personally to such persons inter- ested, or by advertisement in a newspaper or newspapers, or both, as the court directs. Sec. 718. Sureties on bond may be party to accounting.—Upon the

settlement of the account of an executor or administrator, trustee, or guardian, a person liable as surety in respect to such account may,

upon application, be admitted as a party to such accounting, and may

have the right to appeal as hereinafter provided.

Sec 719. Allowance to widow and family, and descent of estate.—

The widow and minor children of a deceased person, during the

settlement of estate, shall receive therefrom, under the direction of

the court, such allowances as are provided by the law in force in the

Canal Zone, on and immediately prior to the twenty-third day of

February, nineteen hundred and four, and the descent of all property and estates to heirs shall be regulated by that law as to all property belonging to intestate estates, and as to all property belonging

to testate estates, but not disposed of by the will of the testator. A

husband or wife of the deceased person shall receive such portion of

his or her estate not disposed of by will as the said law in force on the

twenty-third day of February, nineteen hundred and four, gives to him or to her. Sec. 720. Community property.—One half of the community property as determined by the law in force in the Canal Zone before the

twenty-third day of February, nineteen hundred and four, belonging

to a husband and wife, shall be deemed to belong to the deceased husband or wife, and shall be inventoried and accounted for, and distributed as a part of the estate, in the same manner as all other property

belonging to the estate. Chapter XXXVI.

CLAIMS AGAINST ESTATES, HOW ALLOWED.

Sec. 721. Executor or administrator to notify times and places of

meeting.—The executor or administrator shall appoint convenient

times and places for the examination and allowance of claims, and,

within sixty days from the time of his qualification, shall post a

notice in four public places in the circuit stating the times and places,

and the time limited for creditors to present their claims, and shall publish the same three weeks successively in a newspaper of general

circulation in the circuit, to be designated by the court, and give

such other notice as the court directs. Sec. 722. Court to limit time for presenting claims.—The court
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 159

shall allow such time as the circumstances of the case require for the

creditors to present their claims to the executor or administrator for

examination and allowance; but not, in the first instance, more than

twelve months, or less than six months. The court may extend the

time as circumstances require, but not so that the whole time shall exceed eighteen months.

Sec. 723. When time may he extended.—On application of a creditor who has failed to present his claim, if made within six

months after the time previously limited, or, if the executor or administrator fails to give the notice required by this chapter, and

such application is made before the final settlement of the estate, the court may, for cause shown, and on such terms as are equitable, allow

further time, not exceeding one month, for the presentation and

examination of such claim.

Sec 724. Executor to report.—At the expiration of the time limited

the executor or administrator shall make a report to the court, with

lists of the claims presented, or exhibited in offset, stating how much

was allowed and Iioav much was disallowed, with the final balance,

whether in favor of the creditor or the estate; and the report shall

state the manner in which notice was given to the claimants.

Sec 725. Executor or administrator to notify certain claimants at the time of filing report.—The executor shall give notice to claimants

whose claims are disallowed to the amount of twenty dollars or more,

of the time of filing his report in the clerk's office, which notice

shall be given personally or by letter, on the day of filing such report.

Sec 726. Claims not presented, barred.—A person having a claim

against a deceased person, proper to be allowed, who does not, after

publication of the required notice, exhibit his claim to the executor

as provided in this chapter, shall be barred from recovering such

demand or from pleading the same in offset in any action, except as hereinafter provided.

Sec 727. Estate's claims to be offset.—When a creditor against

whom the deceased has claims, presents a claim to the executor or administrator, the executor or administrator shall offset the claims of

the deceased against the claims of the creditor, and shall ascertain

and allow the balance for or against the estate, as the case may be. Claims of the estate against a creditor who presents a claim for

allowance against the estate of which the executor or administrator

lias or ought to have knowledge shall be barred, unless so offset. Sec. 728. Claim of executor o>- administrator against an estate.—

If the executor or administrator has a claim against the estate he

represents, he shall give notice thereof, in writing, to the court, and

the court shall adjust the same directly. Sec. 72*.). Exceptions by creditors and distributees.—Any creditor or distributee dissatisfied with the act ion of the executor or adminis-
160 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

trator disallowing or allowing a claim may file exceptions thereto,

and, upon notice to the executor or administrator or creditor, bring

the same on to be heard at the next term of the court. The court thereupon shall hear the proof for and against the claim, and may

allow or disallow the claim directly, or may approve the executor's or administrator's action thereon, or may direct issues to be framed

and a formal trial to be hold upon the claim as in the case of a regular

action. From the final judgment of the court, with respect to the

claim, an appeal may be allowed to the Supreme Court, as in other

cases provided. A distributee may likewise except to and appeal

from the action of the executor or administrator in failing to offset a claim of the estate against a creditor.

Sec. 730. Estate of joint debtor liable for the whole claim.—When

two or more persons are indebted on a joint contract, or upon a judgment founded on a joint contract, and either of them dies, his

estate shall be liable therefor, and it shall be allowed by the committee as if the contract had been with him alone or the judgment

against him alone. But the estate shall have the right to recover contribution from the other joint debtor. Sec. 731. Executor or administrator not to be sued.—Xo action or

suit shall be commenced or prosecuted against the executor or administrator upon a claim against the estate to recover a debt due from

the estate until the same has been presented to the executor and

rejected; but actions to recover the seizin and possession of real

estate and personal chattels claimed by the estate may be commenced

against him.

Sec. 732. An executor or administrator may sue.—Nothing in this

chapter shall prevent an executor or administrator from commencing

and prosecuting an action commenced by the deceased in his life- time, for the recovery of a debt or claim, to final judgment, or from

having execution on a judgment, and in such case the defendant may

plead in offset the claims he has against the deceased, instead of pre- senting them to the executor, and mutual claims may be offset in

such actions; and if final judgment is rendered in favor of the defendant, the judgment so rendered shall be considered the true bal- ance against the estate, as though the claim had been duly presented.

Such actions shall be prosecuted in the same circuit and same court

as they would have been if brought by the deceased person while

alive. Chapter XXXVII.

SUITS BY AND AGAINST EXECUTOR AND ADMINISTRATOR.

Sec. 733. Heir may not sue until share assigned.—When an executor or administrator is appointed and assumes the trust, no action to
CODE OF CIVIL PROCEDURE OP THE CANAL ZONE. 161

recover the title or possession of land, or for damages done to such

lands, shall be maintained against him by an heir or devisee, until

there is a decree of the court assigning such lands to such heir or

devisee, or until the time allowed for paying debts has expired, unless

the executor or administrator surrenders the possession to the heir or

devisee. Sec. 734. Representative may be cited to appear.—If the executor

or administrator does not voluntarily appear and prosecute or defend

any action pending against the deceased, and which would survive

according to the provisions of this chapter, the surviving party may

take out a citation from the court before which the case is pending,

requiring the executor or administrator to appear and prosecute or defend the action, which citation shall be served at least twelve days

before the time at which he is required to appear. If the executor

or administrator, after being so cited, neglects to become a party to the suit, he shall be nonsuited, or defaulted, as the case may be, and

judgment rendered against him as administrator or executor; but he

shall not be personally liable for costs ; but the costs shall be paid the same as the debt or damages, out of the estate of the deceased. If

there is no executor or administrator appointed, the death of the

party may be suggested on the record, and the suit continued until an executor or administrator is appointed.

Sec. 735. Representative may compound with debtor.—An executor or administrator may compound with the debtor of the deceased

for a debt due, with the approval of the court, and may give a dis- charge of such debt, on receiving a just dividend of the estate of the

debtor.

Sec. 736. Mortgage debt due to estate.—Debt secured by mortgage,

together with the security, belonging to the estate of a deceased person, as mortgagee or assignee of the right of a mortgagee, when such

mortgage was not foreclosed in the lifetime of deceased, shall be

deemed to be personal assets in the hands of the executor or administrator and administered and accounted for as such ; and the executor

or administrator may foreclose the mortgage, and the proceeds of

foreclosure which may be ultimately realized shall be deemed to be

personal assets to be administered and accounted for as such.

Sec. 737. Mortgage debt due from estate.—A creditor holding a claim against the deceased, secured by mortgage or other collateral security, may abandon the security and prosecute his claim before the executor or administrator, and share in the general distribution of

the estate; or he may foreclose his mortgage or realize upon his

security, by ordinary action in court, making the executor or administrator a party defendant; and if there is a judgment for a defici- ency, after the sale of the mortgaged premises, or the property
162 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

pledged, in the foreclosure or other proceeding to realize upon the

security, he may prove his deficiency judgment before the executor

or administrator, against the estate of the deceased; or he may rely

upon his mortgage or other security alone, and foreclose the same

at any time, within the period of the statute of limitations, and in

that event he shall not be admitted as a creditor, and shall receive no share in the distribution of the other assets of the estate; but

nothing herein contained shall prohibit the executor or administrator from redeeming the property mortgaged or pledged, by paying

the debt for which it is held as security, under the direction of the

court, if the court shall adjudge it to be for the best interests of the

estate that such redemption shall be made.

Chapter XXXVIII.

PROPERTY EMBEZZLED OR SECRETED, OR FRAUDULENTLY CONVEYED.

Sec. 738. Proceedings for the recovery of property embezzled or fraudidently conveyed.—If an executor or administrator, heir, legatee, creditor, or other person interested in the estate of a deceased person, complains to the court having jurisdiction of the estate, that a person is suspected of having concealed, embezzled, or conveyed away

any of the money, goods, or chattels of the deceased, or that such

person has in his possession, or has knowledge of any deed, conveyance, bond, contract, or other writing which contains evidence of, or tends to disclose the right, title, interest, or claim of the deceased to

real or personal estate, or the last will and testament of the deceased,

the court may cite such suspected person to appear before it, and

may examine him on oath on the matter of such complaint; if the

person so cited refuses to appear and answer such examination, or to answer such interrogatories as are put to him, the court may, by

warrant, commit him to the jail or prison of the circuit, there to remain in close custody until he submits to the order of the court; and such interrogatories and answers shall be in writing and signed

by the party, and filed in the clerk's office. Sec. 739. Persons intrusted with estates may be compelled to ren- der account.—The Court, on complaint of an executor or administrator, may cite a person who is intrusted by an executor or administrator with any part of the estate of the deceased person, to appear

before it, and may require such person to render a full account, on

oath, of the money, goods, chattels, bonds, accounts, or other papers

belonging to such estate, as came into his possession, in trust for such

executor or administrator, and of his proceedings thereon: and if the person so cited refuses to appear to render such account, the court may proceed against him as provided in the preceding section.
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 163

Sec. 740. Embezzlement before letters issued.—If a person, before

the granting of letters testamentary or of administration on the

estate of a deceased person, embezzles, or alienates, any of the money,

goods, chattels, or effects of such deceased person, such person shall be liable to an action in favor of the executor or administrator of such

estate for double of the value of the property sold, embezzled, or

alienated, to be recovered for the benefit of such estate. Sec 741. Estate fraudulently conveyed by deceased may be re- covered.—When there is a deficiency of assets in the hands of an

executor or administrator for the payment of debts and expenses of

administration, and the deceased person in his lifetime had conveyed

real estate, or a right or interest therein, with an intent to defraud

his creditors or to avoid a right, debt, or duty of a person; or had

so conveyed such estate that by law the conveyance would be void

as against his creditors and the estate attempted to be conveyed would

be liable to attachment or execution by a creditor of the deceased

in his lifetime, the executor or administrator may commence and

prosecute to final judgment an action for the recovery of such real

estate or interest therein, for the benefit of the creditors ; and he may

also, for the benefit of the creditors, sue and recover, for such goods,

chattels, rights, or credits fraudulently conveyed by the deceased in

his lifetime, with the intent in this section stated ; but no executor or administrator shall be bound to institute such proceedings in such

actions unless on application of the creditors of the deceased, nor

unless the creditors making the application pay such part of the

costs and expenses, or give security therefor to the executor or administrator as the court deems equitable.

Sec 742. Creditor under certain circumstances may sue.—When

there is a deficiency of assets in the hands of an executor or administrator to pay debts and expenses, and when the deceased person made

in his lifetime such fraudulent conveyance of such real or personal

estate or of a right or interest therein, as is stated in the preceding

section, any creditor of the estate may, by permission of the court,

if the executor or administrator has not commenced such action, commence and prosecute to final judgment, in the name of the ex- ecutor or administrator, an action for the recovery of the same, and

may recover for the benefit of the creditors, such real or personal

estate, or interest therein so conveyed. But such action shall not

be commenced until the creditor files in court a bond with sufficient surely, to be approved by the judge, conditioned, to indemnify the executor or administrator against the costs of such actions. Such

creditor shall have a lien upon the judgment by him so recovered,

for the costs incurred and such other expenses as the court deems

equitable.
Itf4 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

Chapter XXXIX.

SALE OF ESTATE.

Sec. 743. Realty may be sold though personalty not exhausted.—

When the personal estate of the deceased is not sufficient to pay the

debts and charges of administration without injuring the business

of those interested in the estate, or otherwise prejudicing their in- terests, and where a testator has not otherwise made sufficient provision for the payment of such debts and charges, the court, on

application of the executor or administrator, with the consent and

approbation, in writing, of the heirs, devisees, and legatees, residing

in the Canal Zone, may grant a license to the executor or administrator to sell for that purpose real estate, in lieu of personal estate, if

it clearly appears that such sale of real estate would be beneficial

to the persons interested and will not defeat any devise of land; in

which case the assent of the devisee shall be required.

Sec. 744. // part can not be .\<>i<l without injury, the whole may

be.—When an executor or administrator makes application to the court for license to sell real estate for payment of debts or charges of

administration, and it appears that a part can not be sold without

injurjr to those interested in the remainder, the court may grant

license to sell the whole of such estate, or such part as is necessary

or beneficial to those concerned therein.

Sec. 745. Persons interested may prevent sale.—No such license to

sell real estate shall be granted if any of the persons interested in the

estate give a bond, in such sum and with such sureties as the court

directs, conditioned to pay the debts and expenses of administration

within such time as the court directs; and such bond shall be for

the security of, and may be prosecuted for the benefit of the creditors, as well as for the executor or administrator.

Sec. 746. The court may order personalty sold.—The court, on

application of the executor or administrator, may order the personal

estate, or part of it, to be sold, if it appears necessary for the purpose

of paying debts, legacies, or expenses of administration, or for the

preservation of the property.

Sec. 747. Estate may be sold when beneficial to heirs.—-When it appears to the court that it will be beneficial to the heirs, devisees, or legatees, or those interested in an estate, by reason of their residing out of the Canal Zone or otherwise, that a part or the whole

of the personal estate, or a part or the whole of the real estate, or both the real and personal estate, should be sold, the court may,

upon application of the administrator or executor, with the consent and approbation, in writing, of the heirs, devisees, and legatees, who

are interested in the estate to be sold, grant license to sell the whole
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 165

or a part of said estate, although not necessary to pay debts, legacies, or charges of administration; but such license shall not be granted

if inconsistent with the provisions of a will. In case of such sale,

the proceeds shall be decreed and assigned to the persons entitled

to the estate, and in the same proportions.

Sec. 748. May be sold to pay debts and legacies in other countries.—When the sale of real or personal estate is not necessary to pay the debts against the deceased person in the Canal Zone, and it appears to the court by records and proceedings of a probate court

in another state or country, that the estate of the deceased in such

other state or country is not sufficient to pay the debts and legacies in

that country, the Circuit Court in the Canal Zone may license the executor or administrator to sell the real or personal estate for the

payment of debts or legacies in the other state or country, in the same manner as provided for the payment of debts or legacies in the Zone. Sec 749. Realty acquired on execution, and so forth, may be

sold.—The court may grant license to an executor or an administrator

to sell real estate acquired by such administrator or executor on exe- cution or foreclosure sale, although not necessary for the payment of

debts, legacies, or charges of administration, when it appears that

such sale will be beneficial to all persons interested in such real estate. Such license shall be granted under the same regulations as pre- scribed in this chapter for the sale of other real estate. Sec. 750. Realty may be sold to pay legacies.—When a legacy is given by a will, which, for want of sufficient estate or otherwise, is chargeable upon the real estate of deceased, the executor may be

licensed by the court to sell such real estate for the purpose of paying

such legacy, as provided in the sale of real estate for the payment

of debts. Sec. 751. Regulations for license to sell.—When an executor or administrator considers it necessan' or beneficial to sell real or per- sonal estate, in cases provided by law. he may make application to the

court having jurisdiction of the estate, and such court maj^ grant

license, when it appears necessary or beneficial, under the following

regulations

1. The executor or administrator shall present to the Court his

petition in writing, setting forth the amount of debts due from the

deceased, with charges of administration, the value of the personal

estate, situation of the estate to be sold, or such other facts as show

that the sale is necessary or beneficial;

2. In cases where the consent of heirs, devisees, and legatees is required, the executor or administrator shall produce to the court

their assent in writing, and signed by such heirs, devisees, or legatees,
166 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

or by the guardians of such as are minors or otherwise under guardianship ; 3. The court shall thereupon appoint a time and place of hearing

for deciding upon such application, and shall require notice to be

given of such application, and of the time and place of hearing to the

persons interested ; which notice shall state the nature of the application and the reason for the same, the time and place of hearing, and

shall be published two weeks successively previous thereto, in a newspaper of general circulation in the neighborhood of those interested, to be designated by the court; and the court may order such

further notice as is adjudged proper. If personal notice is given to the persons interested, the public notice may be dispensed with;

4. If the court requires it, the executor or administrator, before

license is granted, shall give a new bond, in such sum and with such

sureties as the court directs, conditioned that such executor or administrator shall account for the proceeds of such sale

5. If the proof produced satisfies the court and if the regulations

in the first four sub-divisions of this section are complied with, the court may, by decree, authorize the executor or administrator to

sell such part of the estate as is deemed necessary, either at public

or private sale, as would be most beneficial to all parties concerned,

and furnish the executor or administrator with a certified copy of

such license or order of sale

*

6. If the order is to sell the estate at auction, the court shall desig- nate the mode of giving notice of the time and place of the sale, which

shall be stated in the copy or certificate of such order furnished the executor or administrator;

7. The record of the order of sale in the court, and the copy or

the certificate of such order furnished the executor or administrator,

shall state that such of the requisites prescribed in the first four

sub-divisions of this section, as are required in the case, are complied

with; and such certificate or copy of the order of sale shall be re- corded in the office of the Kegistrar of Land Titles of the circuit in

which the lands thus to be sold are situated.

Sec. 752. Effect of deed.—The deed of an executor or administrator of the real estate of deceased persons, having such certificate or copy of an order of sale from the probate court shall be as valid

to convey the estate authorized to be sold as if the deed had been

executed by the deceased in his lifetime.

Sec. 753. When administrator dies pending sale, new license to

issue.—In case of the death, resignation, or removal of an executor

or administrator before the completion of the sale of real estate under a license granted as above provided, the court may, upon

application, at any time within two years after issuing such prior
CODE OF CIVIL PROCEDURE OP THE CANAL ZONE. 167

license, issue a new license to his successor without further notice or hearing thereon. Sec. 754. When deceased under contract to convey.—Where a deceased person was in his lifetime under contract, binding in law,

to deed land, or an interest therein, the court having jurisdiction

of an estate may, on application for that purpose, grant license to the executor or administrator to convey such land, according to such contract or with such modifications as are agreed upon by the

parties, and approved by the court; and if the contract is to convey

lands to the executor or administrator, the judge of the court shall execute the deed. The deed executed by such executor, administrator, or judge, shall be as effectual to convey such lands as if executed by the deceased person in his lifetime; but no court shall

grant such license to deed the lands of the deceased person until

notice of the application for that purpose has been given to all parties interested, under an order of such court, and published

two weeks successively previous thereto, in such newspaper as the court directs; nor if it appears to the court on a hearing that the

assets in the hands of the executor or administrator will thereby

be reduced so as to prevent a creditor from receiving his full debt or diminish his dividend.

Sec. 755. Lands held in trust to he conveyed.—Where a deceased

person in his lifetime held lands in trust for another person, the court may, after notice given as required in the preceding section,

grant license to the executor or administrator to deed such lands to the person, his executor, or administrator, for whose use and benefit

the}^ are holden; and the court may decree the execution of such

trust, whether created b}^ deed or by law.

Chapter XL.

FROM WHAT ESTATE DEBTS TO BE PAID.

Sec. 756. Personalty first chargeable for debts.—The personal

estate of a deceased person shall be first chargeable with the payment

of debts and expenses; and if the personal estate is not sufficient for

that purpose, the whole of the real estate, or so much thereof as is necessary, may be sold for that purpose by the executor or administrator, after obtaining license therefor; and the executor or administrator shall have the right to the possession of the real as well as the personal estate of the deceased, so long as is necessary for that

purpose.

Sec. 757. From what part of testate estate debts to he pnid. —If the

testator makes provision by his will, or designates the estate to be ap-
168 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

propriated for the payment of his debts and the expenses of administration or family expenses, they shall be paid according to the provisions of the will. But if the provision made by the will or the

estate appropriated is not sufficient for that purpose, such part of the

estate of the testator, real or personal, as is not disposed of by will,

if any, shall be appropriated for that purpose.

Sec. 758. Legacy and decise liable for payment of debts.—The

estate, real or personal, given by will to the devisees, or legatees,

shall be liable for the payment of the debts, expenses of administration, and family expenses, in proportion to the amount of the several

devises or legacies, except that specific devises and legacies may be

exempted if it appears to the court necessary to carry into effect the intention of the testator, and if there is sufficient other estate. Sec. 759. Executor to retain possession of an estate, when.—When

the estate given by will is liable for the payment of debts and ex- penses, or is liable to be taken to make up the share of a child born

after the execution of a will, or of a child or of the issue of a child

not provided for in the will, and not intentionally excluded there- from, the executor may retain possession of the same until such

liability is settled by order of the court, and until the devises and

legacies so liable, are accordingly assigned by order of the court; and a devisee or legatee may make his claim to the court to have

such liability settled and his devise or legacy assigned to him.

Sec 760. Devisees, legatees, and heirs, in possession, must contribute.—Devisees and legatees who, with the consent of the executor

or otherwise, have possession of the estate given to them by will

before such liability is settled by the court, shall hold the same, subject to the several liabilities mentioned in the preceding section, and

shall contribute according to their respective liabilities to the ex- ecutor, or to a devisee or legatee, from whom the estate devised to him has been taken for the payment of debts or expenses, or to make

up the share of a child born after the making of the will, or of a child or of the issue of a child omitted in the will and not intentionally excluded thereby; and the persons who, as heirs, have re- ceived the estate not disposed of by will, shall be liable to contribute

like the devisees or legatees.

Sec 761. When person Mablt to contribvte is insolvent or dead.—If

a person liable to contribute, according to the provisions of the pre- ceding section, is insolvent and unable to pay his share the others

shall be severally liable for the loss occasioned by such insolvency,

in proportion to and to the extent of the estate they have received;

and if a person liable to contribute dies before paying his share, the

claim shall be valid against his estate as if it had been his proper

debt.
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. K)9

Sec. 762. Court to fix contributor's shares.—The court having

jurisdiction of the estate, may, by decree for that purpose, after

hearing, settle the amount of the several liabilities as provided in

the preceding section, and decree how much, and in what manner,

each person shall contribute, and may issue execution if circumstances require.

Chapter XLI.

PAYMENT OF DEBTS.

Sec. 763. Debts to be paid in full if estate sufficient.—If, after the

amount of the claims against an estate is ascertained, as hereinbefore

provided, it appears that- the executor or administrator has in his

possession sufficient assets to pay the debts, he shall pay the same

within a time to be fixed by the court. Sec. 764. Order of payment if estate insolvent.—If the assets which

can be appropriated for the payments are not sufficient for that purpose, the executor or administrator shall, after paying the necessary

expenses of administration, pay the debts against the estate in the

following order:

1. The necessary funeral expenses

2. The expenses of the last sickness

3. Debts due to the United States

4. Taxes and assessments due to the Government, or any branch or subdivision thereof

5. Debts due to the Government

6. Debts due to other creditors. Sec. 765. Dividends to be paid in proportion to claim.—If there are not assets sufficient to pay the debts of any one of the aforesaid

classes, after paying the preceding ones, each creditor within the

class for which there are not sufficient assets for payment in full,

shall be paid a dividend in proportion to his claim. No creditor of

any one class shall receive any payment until those of the preceding

class are paid.

Sec. 766. Estate of insolvent nonresident.—In case administration

is taken in the Canal Zone of the estate of a person who was at the

time of his decease an inhabitant of another country or state, and

who died insolvent, his estate found in the Canal Zone shall, as far as practicable, be so disposed of that his creditors here and elsewhere,

may receive each an equal share in proportion to their respective

debts. Sec. 767. Payment of claims outside the Canal Zone, against in- aoleent residenfs estate.—If it appears to the court having jurisdic-
170 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

tion of the estate that claims have been duly proven in another state or country against the estate of an insolvent debtor, who was at his

decease an inhabitant of the Canal Zone, the executor or administrator within the Canal Zone having had knowledge of the presentation of such claims under foreign jurisdiction, and an opportunity

to contest their allowance, such court shall receive a certified list of such claims, when perfected in such other state or country, and

add the same to the list of claims proven against the estate of the

deceased person in the Zone, so that a just distribution of the whole

estate may be made equally among all creditors, according to their

respective claims; but the benefit of this and the preceding sec- tions shall not be extended to the creditors in another state or country, if the property of such deceased person there found is not appropriated to the creditors residing in the Canal Zone with other

creditors, according to their respective debts. Sec. 70S. Decree for payment of debts.—Upon the filing of the

executor's or administrator's report, the court shall order the payment of the debts and the distribution of the assets received by

the executor or administrator at the time, for that purpose, among

the creditors, as the circumstances of the estate require, according

to the provisions of this chapter. Sec. 7G9. /// case of appeal.—If exceptions have been taken from

the action of the executor or administrator in rejecting a claim, the court may suspend the order for the payment or may order the distri- bution among the creditors whose claims are uncontested, leaving in the hands of the executor or administrator sufficient assets to pay the

claim disputed and appealed.

When a disputed claim is finally settled, the court having jurisdiction of the estate shall order the same to be paid out of the assets retained, to the same extent and in the same proportion with the

claims of other creditors. Sec. 770. Subsequent distributions.—If the whole of the debts are not paid by the first distribution and if the whole assets are not dis- tributed, or other assets afterwards come into the hands of the ex- ecutor or administrator, the court may from time to time, make

further order for the distribution of assets.

'Sec. 771. After time fixed for payment, executor or administrator

personally liable.—When an order is made for the distribution of

assets among creditors, the executor or administrator, after the tune

of payment arrives, shall be personally liable to the creditors for

their debts, or the dividend thereon, as for his own debt: he shall also be liable on his bond.

Sec. 772. Court fo ft'.r time for /xn/iiKj debts and hijacirs.—The

court, at the time of granting letters testamentary or of admmistra-
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 17]

tion, shall allow to the executor or administrator a time for dis- posing of the estate and paying the debts and legacies of the

deceased person, which time shall not, in the first instance, exceed one year; but the court may, on application of the executor or administrator, from time to time, as the circumstances of the estate require, extend the time not exceeding six months at a time, nor so that the whole time allowed to the original executor or administrator

shall exceed two years. Sec. 773. Hearing on question of extending time.—When an ex- ecutor or administrator makes application to have the time for paying debts or legacies extended beyond one year, the court shall appoint a time for hearing and deciding on such application, and

cause notice thereof to be given to all persons interested, by publication two weeks successively in a newspaper of general circulation

in the Zone, to be designated by the court; and an order extending

the time shall not be granted unless such notice has been given.

Sec 774. Successor of executor or administrator dying, mag hare

time extended.—When an executor or administrator dies and a new

executor or administrator of the same estate is appointed, the court ma}' extend the time allowed for the payment of the debts or legacies

beyond the time allowed to the original executor or administrator,

not exceeding six months at a time, and not exceeding six months

beyond the time which the court might have allowed to such original

executor or administrator ; and notice shall be given of such application and of the time and place of hearing, as required in the preceding

section.

CONTINGENT CLAIMS.

Sec. 775. Claims may be presented to executor or administrator.—

If a person is liable as surety for deceased, or has other contingent

claims against his estate which can not be proved as a debt before the

executor, the same may be presented with the proof, to the executor,

who shall state in his report that such claim was presented. Sec. 77G. Estate to be retained to meet claims.—If the court is sat- isfied from the report of the executor, or from proofs exhibited to it, that such contingent claim is valid, it may order the executor to retain in his hands sufficient estate to pay such contingent claim.

when the same becomes absolute, or if the estate is insolvent, suffi- cient to pay a portion equal to the dividend of the other creditor-.

Sec. 777. Claim becoming absolute in two years, how allowed.—

If such contingent claim becomes absolute and is presented to the

court, or to the executor or administrator, within two years from the

time limited for other creditors to present their claims, it may be

allowed by the court if not disputed by the executor or administrator.
172 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

and, if disputed, it may be settled by the court upon a hearing as in

the case of exceptions to an executor's report. Sec. 778. Such creditor to receive in same proportion as others.—

If such contingent claim is allowed, the creditors shall receive payment to the same extent as the other creditors, if the estate retained

by the executor or administrator is sufficient. But if the claim is not

established within the time limited in the preceding section, or if the

assets retained in the hands of the executor or administrator are not

exhausted in the pa}<ment of such claims, such assets, or the residue

of them, shall be disposed of by the order of the court to the persons

entitled to the same; but the assets so distributed shall still remain

subject to the liability of the claim when established, and the creditor may maintain an action against the distributees to recover his

debt, and such distributees and their estates shall be liable for such

debts in proportion to the estate they have respectively received from

the property of the deceased.

Chapter XLII.

ESCHEATS.

Sec. 779. Procedure when person dies intestate without heirs.—

When a person dies intestate, seized of real or personal property in

the Canal Zone, leaving no heir or person by law entitled to the same,

the collector of revenues of the Zone or other officer discharging his

duties may file a petition with the court of the circuit where the

intestate resided or any portion of his real estate lies for an inquisition in the premises; the court shall thereupon appoint a time and

place of hearing and cause a notice thereof to be published in some

newspaper of general circulation. The notice shall recite the sub- stance of the facts and request set forth in the petition, the time and

place at which persons claiming the estate may appear and be heard

before the court, and shall be published at least four weeks successively, the last of which publication shall be at least four weeks before

the time appointed by the court to make inquisition. Sec. 780. Decree of court in such case.—If, at the time appointed

for that purpose, the court finds that the person died intestate, seized

of real or personal property in the Zone leaving no heir or persons

entitled to the same, and no sufficient cause is shown to the contrary,

the court shall order and decree that the estate of the deceased in the

Canal Zone, after the payment of just debts and charges, shall es- cheat ; and the said estate shall be administered upon by the collector of revenues and the proceeds be paid in to the Zone treasurer,

the proceeds of the personal estate for the use of the schools of the

administrative district where the deceased resided, and the proceeds

of the real estate for the use of the schools of the respective administrative districts where the real estate lies.
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 173

Sec. 781. Right of heir, and so forth, subsequently appearing.—

If a devisee, legatee, heir, widow, husband, or other person entitled to such estate, within ten years from the date of such decree, appears and files claim with the court to such estate, he shall have possession of the same, or if sold, the government of the Canal Zone shall be accountable to him for the avails, after deducting reasonable

charges for the same of the estate ; but if the claim is not made within

the time mentioned it shall be forever barred.

Chapter XLIII.

DISTRIBUTION OF ESTATE.

Sec 782. Order of distribution.—After payment of the debts,

funeral charges, and expenses of administration, and the allowance,

if any, made for the expense of maintenance of the family of deceased, the court shall assign the residue of the estate to the persons

entitled to the same, and in its order the court shall name the per- sons and proportions, or parts to which each is entitled, and such

persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his

possession : Provided, however, That nothing in this Code contained

shall be construed to alter the existing Panamanian law as to the

restriction of the right of the testator to disinherit his children or

other relatives. Sec 783. Parties interested may have order.—Such order may be

made on the application of the executor or administrator, or of a person interested in the estate; but the heirs, devisees, or legatees, shall not be entitled to an order for their share, until the payment

of the debts and allowances mentioned in the preceding section, and

the several expenses therein mentioned have been made or provided

for, unless they give a bond with such surety or sureties as the court

directs, to secure the payment of such debts, expenses or allowances, or any part thereof as remain unpaid or unprovided for, and to in- demnify the executor or administrator against the same. Sec 784. Share of child born after making will.—When a child of

a testator is born after the making of a will, and no provision is therein made for him, such child shall have the same share in the

estate of the testator as if he had died intestate; and the share of

such child shall be assigned to him as in cases of intestate estates, unless it was apparent from the will that it was the intention of the

testator that no provision should be made for such child.

Sec 785. Share of child or issue of child omitted from will.—

When a testator omits to provide in his will for any of his children, or for issue of a deceased child and it appears that such omission was made by mistake, or accident, such child, or the issue of such child

803a -07—m 12*
174 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

shall have the same share in the estate of the testator as if he had

died intestate, to be assigned to him as in the case of intestate estates. Sec. 786. From what part of estate such shares taken.—When a

share of a testator's estate is assigned to a child born after the making

of the will, or to a child or issue of a child omitted in the will, the same shall first be taken from the estate not disposed of by the will,

if there is any, and if there is not sufficient so much as is necessary

shall be taken from the devisees or legatees in proportion to the value

of the estate they respectively receive under the will; but if the

obvious intention of the testator as to some specific devise or bequest,

oi' other provision of the will, would thereby be defeated, such

specific devise, legacy, or provision, may be exempted from such ap- portionment and a different apportionment adopted, in the discretion

of the court. Sec 787. Devisee dying before testator.—When a devise or legacy

is made to a child or other relation to the testator, and the devisee or legatee dies before the testator, leaving issue surviving the tes- tator, such issue shall take the estate so given as the devisee or legatee

would have done, if he had survived the testator, unless a different

disposition is required by law.

Sec 788. Share of person absent and unheard of.—If a person entitled to a distributive share of the estate of a deceased person is ab- sent and unheard of for ten years, either before or after the death

of such deceased person, the court may two years after the deceased

person's death order the share of such absent person distributed

among his lineal heirs, if he has any, otherwise among the heirs

of such deceased person ; but if such absent person proves to be alive

he shall be entitled to his estate notwithstanding such distribution,

and may recover any portion thereof which any one has received

under such order; and before an order is made for the payment

or distribution of any money or estate herein authorized, the court

shall cause the same notice to be given as upon the settlement of an

administrator's account, and such other notice, by publication or

otherwise, as the court deems proper.

Sec 780. Adrancement to lineal heirs.—Estate, real or personal,

given by the intestate in his lifetime to a child or lineal descendant,

shall be reckoned toward the share of such heir, and for that purpose

shall be considered a part of the estate of the intestate, under the

following circumstances only

1. When in the gift or grant it is expressed to be an advancement;

2. When such estate is charged to the child or lineal descendant,

in writing, by the deceased upon his books or papers

3. When such estate is acknowledged as such by the child or lineal descendant in writing:
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 175

4. When personal estate is delivered expressly as advancement be- fore two witnesses requested to take notice of it. If the amount so advanced exceeds the share of the heir, he shall be excluded from any

further share in the estate; but he shall not be liable to refund any

part of the share so advanced; and if the advancement is less than

the share of such heir, he shall receive such further sum as, with

such advancement, will be equal to his legal share in the estate. If

the amount so advanced is in real estate, the same shall be set off,

first, toward the heir's share of real estate, and if more than his

share of real estate, the balance shall be set off toward his share of

personal estate, and if the advancement is in personal estate, the same shall be set off, first, toward the heir's share, in personal estate, then toward his share in the real estate. But if the heirs consent, a different application of the advancement may be made.

If the child or other lineal descendant, to whom such advancement

is made, dies before the intestate, the advancement shall be reckoned

toward the share of the representative of such child, or other lineal

descendant, as it would be reckoned toward the share of the heir,

if living.

Where the value of the advancement is expressed in the conveyance,

or the charge of the same, or in the acknowledgment of the person

receiving it, or by the intestate at the time of delivering it before

two Avitnesses, such advancement shall be taken to be of the value

so expressed; otherwise it shall be estimated according to the value

at the time of making it. Sec. 790. Questions as to advancement to be determined by the

court.—Questions as to advancement made, or alleged to have been

made, by the deceased, to any heirs or lineal descendants, may be

heard and determined by the court having jurisdiction of the estate, and shall be specified in the decree directing the distribution of the

estate; and the final decree of the court, either originally or on appeal,

shall be binding on the person interested in the estate. Sec 791. Partition of an estate already assigned.—Where the real estate assigned to two or more heirs, devisees, or legatees is in com- mon and undivided, and their respective shares are not separated

and distinguished, partition and distribution of the same, wherever

situate, may be made, upon application to the court or judge having

jurisdiction of the estate by any party in interest, by petition for

that purpose. Upon the filing of the petition the court or judge

shall appoint commissioners to make the partition, and the proceedings of such commissioners, and of the court in its action upon the

report of the commissioners, shall be in all respects the same as in this

Code provided for partition of real estate by action. Such partition

may be made although some of the original heirs or devisees have
176 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

conveyed their shares to other persons; and such shares shall be

set to the persons holding the same as they would have been to the

heirs or devisees. The whole estate may be assigned to one or more

of the heirs or may be sold under the directions of the court as pro- vided in this Code in relation to partition of real estate by action.

The fees of the commissioners shall be the same as provided in this

Code for commissioners for partition of real estate by action.

Sec. 792. Expenses of partition may he paid from estate.—If. at the time of partition or distribution of the estate, the executor or administrator has retained suflicient effects in his hands which may

lawfully be applied for that purpose, the expenses of such partition or distribution may be paid by such executor or administrator when

it appears equitable to the court and not inconsistent with the intention of the testator; otherwise, they shall be paid by the parties

in proportion to their respective shares or interest in the premises,

and the apportionment shall be settled and allowed by the court,

and, if any person interested in the partition does not pay his pro- portionate share, the court may issue an execution in the name of

the executor or administrator against the party not paying, for the sum assessed. Sec 793. Recording the decrees of partition of estate.—Certified

copies of final orders of the court, relating to the estate or the partition thereof, shall be recorded in the. registry of land titles of the

circuit where the land is situated.

Chapter XLIV.

ADOPTION AND CUSTODY OF MINORS.

Sec 794. How a child may be adopted.—An inhabitant of the

Canal Zone, not married, or a husband and wife jointly, may petition the Circuit Court of the circuit in which they reside for leave

to adopt a minor child; but a written consent must be given for

the adoption by the child, if of the age of fourteen years, and by

each of his or her living parents who is not hopelessly insane or in- temperate, or has not abandoned such child, or if there are no such

parents, or if the parents are unknown, or have abandoned such child, or if they are hopelessly insane or intemperate, then by the legal

guardian, or if there is no such guardian, then by a discreet and

suitable person appointed by the court to act in the proceedings as the next friend of such child; but when such child is an inmate of

a charitable or eleemosynary institution within the Canal Zone, and

has been previously abandoned by its parents or guardians thereto,

then the written consent of the head of such institution must be

given: Provided, nevertheless, That nothing herein contained shall
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 177

authorize a guardian to adopt his ward before the termination of the

guardianship and the final settlement an dapproval of his accounts

as guardian by the court. Sec. 795. Adoption by stepfather.—Any inhabitant of the Canal

Zone, being the husband of any woman who has a minor child by a former husband, may petition the court of the circuit in which he

resides for leave to adopt such minor child and for a change in the name of such child; but the written consent must be given to the

adoption try the child, if of the age of fourteen years, and by the

mother of such child, if she is not hopelessly insane or intemperate, or

if such mother is hopelessly insane or intemperate, then by the legal

guardian of such child, or if there is no such guardian, then by a

discreet and suitable person appointed by the court to act in the pro- ceedings as the next friend of such child or children.

Sec. 796. Order of the court.—When the foregoing provisions are complied with, if the court is satisfied with the ability of the petitioner to bring up and educate the child properly, having reference

to the degree and condition of the child's parents and the fitness and

propriety of such adoption, it shall make an order setting forth the

facts and declaring that from that date said child, to all legal intents

and purposes, is the child of the petitioner and that its name is thereby changed. The order shall be recorded in the records of the

court. Sec. 797. Effect of the order.—The natural parents, except when

such child is adopted under the provisions of the second preceding

section shall, by such order, be divested of all legal rights and obligations in respect to the child, and the child shall be free from all legal obligations of obedience and maintenance with respect to them.

Such child shall be to all intents and purposes the child and legal heir

of the person adopting him or her, entitled to all the rights and privileges, and subject to all the obligations of a child of such person

begotten in lawful wedlock: Provided, nevertheless, That the child

so adopted shall remain the legal heir of his father and mother, and

in case of the death of the child, his father and mother and relatives

by nature, shall remain his legal heirs. Sec. 798. Illegitimate child.—If the child to be adopted is illegitimate, the consent of the father to adoption shall not be required.

Sec. 799. Order as to vagrant, incorrigible, neglected, or abused

child.—When the parent or parents of any minor child shall be unable through vagrancy, negligence, or misconduct to support such

child, or if able, shall neglect or refuse to support such child, or when

such parent or parents shall unlawfully beat or otherwise habitually

maltreat such child, or cause or allow it to engage in common begging, the Circuit Court of the Circuit in which the parents live or
178 CODE OP CIVIL PROCFDURE OF THE CANAL ZONE.

in which the child is found, if vagrant, upon complaint by affidavit of some reputable citizen of the Circuit, in behalf of such child, set- ting forth the facts bringing the case within this section, may issue a summons requiring such parent or parents to appear and answer

such complaint, and if the parent or parents can not be found, the summons may require his nearest relative to appear in the interest

of his parent or parents ; and if, upon hearing, all the matters complained of, the court find the same to be true, and that it is for the

best interest of such child to be taken from such parent or parents,

the court may make an order to that effect, and it may order the

placing of such child in any suitable orphan asylum or children's

home, or with some other benevolent society, to be taken and cared

for and placed in homes found for them, by adoption or otherwise,

by such asylum, children's home or society.

Sec. 800. Children of parents separated or divorced.—When husband and wife are living separate and apart from each other, or are divorced, and the question as to the care, custody and control of the

offspring of their marriage is brought before a Circuit Court, by

petition or otherwise, or rises as an incident to any other proceeding,

the father and mother of such offspring shall stand upon an equality

before the court as to the care, custody, and control of the offspring,

so far as it relates to their being either the father or mother of the

children. The Court, upon hearing the testimony of either or both

of the parents, and such other testimony as the court deems pertinent,

shall decide which one of them shall have the care, custody, and

control of such offspring, taking into account that which will be for

the best interest of the children : Provided, That if such offspring be

ten years of age or more they be allowed to choose which parent they

prefer to live with, unless the parent so selected by such child be

unfitted to take charge of such child by reason of moral depravity,

habitual drunkenness, incapacity, or poverty, in which case the court

shall determine the custodian of such child. If, upon such hearing, it should be proven to the court that both parents are improper persons

to have the care, custody, and control of such child, the court may,

in its discretion, either designate some reputable and discreet person

to take charge of such child, or may commit it to any asylum, chil- dren's home, or other similar benevolent society within the Canal Zone. The court may order either or both parents to support or help support said child, irrespective of who may be its custodian. The

court shall have full power and authority to make any order or

decree that is just and reasonable, permitting the parent who is deprived of such care and custody of said child to visit it and to have

temporary custody thereof. Sec. 801. Appeal.—Either parent majT appeal from the order of
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. ] 79

court, made in accordance with the last preceding section, to the

Supreme Court in the manner provided for appeals in special proceedings.

Chapter XLV.

APPEALS IN SPECIAL PROCEEDINGS.

Sec 802. Appeal from settlement of account of administrator,

executor, trustee, or guardian.—Any person legally interested in a

final order, or decree, or judgment of a Circuit Court settling the

account of an executor, administrator, trustee, or guardian, may

appeal from such order, decree, or judgment, to the Supreme Court

and such appeal shall be heard by the Supreme Court in the manner

provided in this Code. All items of the account shall be open on

the appeal. The decision of the Supreme Court thereon shall be

final. Sec. 803. Method of perfecting such appeal.—The person thus appealing shall perfect his appeal within twenty-one days after the

entry of the order, decree, or judgment by the Circuit Court, by

filing with the clerk of that court a statement in writing that he

appeals to the Supreme Court from such order, decree, or judgment.

The clerk shall thereupon transmit to the Supreme Court a certified transcript of the account embraced in the order, decree, or judgment,

and of the order, decree, or judgment appealed from, and of the

appeal.

Sec. 804. Bond for appeal.—Before an appeal is allowed the per- son appealing under the two preceding sections shall give a satis- factory bond to the court, conditioned that he will prosecute the

appeal to effect and pay the intervening damages and costs occasioned

by such appeal.

Sec. 805. Appeal in case of allowance or disallowance of wills.—

Any person interested in the allowance or disallowance of a will by

a Circuit Court, may appeal to the Supreme Court from such allow- ance or disallowance, by filing with the Circuit Court an application

for an appeal, within twenty days after the entry of the judgment

allowing or disallowing the will, and by the execution and filing of

a bond such as is provided in the preceding section. Upon the

filing of such appeal and bond, it shall be the duty of the clerk

forthwith to transmit to the Supreme Court a certified copy of the

will, and of all the evidence taken upon the trial, and of the judgment of the court thereon, and also the original will itself, in case any question of the handwriting is involved in the controversy. In

case the original will is transmitted to the Supreme Court the clerk

of the Circuit Court shall retain in his files a certified copy thereof.

Sec. 806. Appeal from decree of distribution.—If there shall be a
180 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

controversy before the Circuit Court as to who the lawful heirs of

the deceased person are, or as to the distributive share to which each

person is entitled under the law, the testimony as to such contro- versy shall be taken in writing by the judge, under oath, and signed

by the witnesses. Any party in interest whose distributed share is affected by the determination of such controversy may appeal from

the judgment of the Circuit Court determining such controversy,

to the Supreme Court, within the time and in the manner provided

in the last preceding section, and it shall thereupon be the duty of

the clerk of the Circuit Court forthwith to transmit to the Supreme

Court a certified copy of all the testimony taken upon that issue,

and of the judgment of the court thereon. Sec. 807. Appeals allowed in other cases affecting settlement of

estate.—Any person legally interested in any other order, decree, or judgment of a Circuit Court in the exercise of its jurisdiction in

special proceedings in the settlement of the estates of deceased per- sons or the administration of guardian and trustees, may appeal

to the Supreme Court fiom such order, decree, or judgment when

such order, decree, or judgment constitutes a final determination

of the rights of the parties so appealing, and the appeal shall be

effected in the manner provided in the two preceding sections : Provided, That no appeal shall be allowed from the appointment of a

special administrator.

Chapter XLVI.

FORMS AND FEES. Sec 808. Forms.—-The following forms may be used in civil courts

in the Canal Zone in actions and special proceedings, and shall, as near as circumstances will permit be adopted ; but alterations may be

made and allowed by rules of court, and pleadings and process not

in these forms, but in substantial compliance with the law, shall be

.sufficient.

1. Form of general heading for all written pleadings in an action.

United States of America,

Canal Zone.

In the Circuit Court for the Circuit.

Between A B., plaintiff, and C D., defendant, (or- in the matter of

'). 2. Form of complaint to recover money lent.—The plaintiff says

that:

1. On the day of , 19__, at , he lent the

defendant the sum of $ repayable on demand (or, on the

day of 19-_) with interest on the same from the said day
CODE OP CIVIL PROCEDURE OF THE CANAL. ZONE. 181

of , 19 , until payment at the rate of __ per centum per annum.

2. The defendant has not paid the said sum or interest thereon or any part of the same (except as follows ) ; 3. The plaintiff prays judgment for the said sum of $ , re- maining unpaid, with interest from the said day of , 19 , at the above rate, together with the costs of the action.

3. For money received to plaintiffs use.—The plaintiff says that

1. On or about the day of , 19 , the defendant received

$ (or, a certain bank check or draft upon the bank of

amounting to $ ) from one E. F., for the use of the plaintiff;

2. The defendant has not paid (or delivered) the same;

3. The plaintiff prays judgment for $ with interest at per cent from the day of , 19 , together with the cost of the action.

4- For price of goods sold by a factor.—The plaintiff says that

1. On the day of 19 , at , he delivered

to the defendant (here state the goods delivered) for sale on commission ; 2. On the day of , 19 , (or, on some day unknown' to the plaintiff before the day of 19 ,) the defendant

sold the said merchandise for $ ; 3. The commission and expenses of the defendant thereon amounting to $ ;

If. On the day of , 19 , the plaintiff demanded from

the defendant the proceeds of said merchandise.

5. The defendant has not paid the same.

6. The plaintiff prays judgment for said sum of $ with

interest from said day of , 19 , at the rate of __ per

cent per annum, together with the costs of the action.

5. For goods sold at a fixed price and delivered.—The plaintiff

says that:

1. On the day of , 19 , at ' , he sold and

delivered to the defendant (here describe the goods sold and delivered) ; 2. The defendant promised to pay $ , for said goods on

delivery (or, state manner in which payment was to be paid) ; 3. The defendant has not paid the same.

4. (Demand for judgment as in previous forms.)

6. For goods sold at a reasonable price and delivered.—The plaintiff says that

1. On the day of , 19 , at , he sold and

delivered to the defendant (here state the goods sold and delivered),

but no express agreement was made as to price.

2. The said goods were reasonably worth $
182 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

3. The defendant has not paid the same.

4. (Demand for judgment as in previous forms.)

7. For goods made at defendant's request and not accepted.—The

plaintiff says that

1. On the day of , 19__, at , the defendant agreed with the plaintiff that the plaintiff should make for the

defendant (here describe the articles), and that the defendant should

pay for the same upon delivery thereof $ ; 2. The plaintiff made the said goods, and on the day of , 19 , offered to deliver the same to the defendant, and has ever

since been ready and willing so to do.

3. The defendant has not accepted the goods or paid for the same;

4. (Demand for judgment.)

8. For deficiency upon the sale of goods sold at auction.—The

plaintiff says that:

1. On the day of , 19__, at , the plaintiff put up at auction (sundry articles of merchandise) subject to the

condition that all goods not paid for and removed by the purchaser

thereof immediately after the sale should be resold by auction on his

account, of which condition the defendant had notice

2. The defendant purchased (describe the articles) at the said

auction at the price of $ ; 3. The plaintiff was ready and willing to deliver the same to the

defendant on the said date, of which the defendant had knowledge

4. The defendant did not take away the said goods purchased by

him nor pay therefor, at the time of said purchase nor since;

5. On the same day at the same place, the plaintiff resold the said

goods on account of the defendant at public auction for $ ; 6. The expenses attendant upon such resale amounted to $ ; 7. The defendant has not paid the deficiency thus arising amounting to $ ; 8. (Demand for judgment.)

9. For services at a fixed price.—The plaintiff says that

1. On the day of , 19__, at , the defendant

employed plaintiff as clerk at a salary of $ per year (or otherwise employed him. as the case may be) ; 2. From the said date until the day of , 19__, the plaintiff served the defendant as clerk (or otherwise, as the case may be) ; 3. The defendant has not paid the said salary (except the sum

of$ );

4- (Demand for judgment.)

10. For rent reserved in lease.—The plaintiff says that

/. The plaintiff, by deed, let to the defendant a piece of land (or

certain buildings) for years (or months, or days as the case
CODE OP CIVIL PEOCEDUKE OP THE CANAL ZONE. 183

may be), to hold from the day of , 19__, at $ a

year, payable quarterly (or upon other terms, as the case may be) ; 2. Of such rent quarters are due and unpaid, amounting to $

3. (Demand for judgment.)

11. For use and occupation at a reasonable rent.—The plaintiff says

that:

1. The defendant used and occupied the (land or building, located

at ), belonging to the plaintiff from the day

of , 19__, but no agreement was made as to amount of payment

for the use of said premises

2. The use of the said premises for the said period was reasonably

worth $ ; 3. Defendant has not paid the same

4. (Demand for judgment.)

12. For carriage of goods.-—The plaintiff saj^s that:

1. On the day of , 19 , the plaintiff at the request of

the defendant, carried in his ship (wagons, railroad cars, by hand, or

otherwise, as the case may be) certain goods (stating them) from

to _____;

2. The defendant promised to pay the plaintiff the sum of $ , as freight thereon

3. The defendant has not paid the same or any part thereof

4. (Demand for judgment.)

13. Payee against maker of promissory note.—The plaintiff says

that:

1. On the day of , 19__, at , the defendant,

by his promissory note, now overdue, promised to pay to the plaintiff

$ , on the day of , 19 , (or days after date) ; 2. The said note was in the words and figures following (here copy

note) : 3. The defendant has not paid the same (except $ on the

day of , 19__).

4. (Demand for judgment.)

14. First endorsee against maker of note.—The plaintiff says that

1. On the day of , 19 , at the defendant, by his promissory note, now overdue, promised to pay to the

order of $ on the day of 19 (or

days after date).

2. The said endorsed the same to the plaintiff.

3. The said note and endorsements are in words and figures fol- lowing: (here copy) ; 4- The defendant has not paid the same;

5. (Demand for judgment.)
184 CODE OF CIVIL, PROCEDURE OF THE CANAL ZONE.

15. Subsequent endorsee against maker.—The plaintiff says that:

1. On the day of , 19 , at the defendant,

by his promissory note, now overdue, promised to pay to the order of

E. F. $ on the day of , 19 , (or, days after

date) ; 2. The same Vas by the endorsement of the said E. F. (and others,

if they were endorsers) transferred to the plaintiff;

3. The said note and endorsements were in words and figures fol- lowing: (here copy);

4- The defendant has not paid the same;

5. (Demand for judgment.)

16. First endorsee against first endorser.—The plaintiff says that:

1. On the day of , 19__, at E. F. by his

promissory note, now overdue, promised to pay to the order of the

defendant $ on the day of , 19 , (or days

after date) ; 2. The defendant endorsed the same to the plaintiff;

3. The said note and endorsements were in words and figures fol- lowing: (here copy);

4. On the day of , 19 , the same was duly presented

for payment, but was not paid (or, state facts excusing want of

presentment) ; 5. The defendant had due notice thereof

6. The defendant has not paid the same;

7. (Demand for judgment.)

17. Subsequent endorsee against maker, first and second endorser.—

The plaintiff says that

1. On the day of , 19__, at the defendant,

C. D., by his promissory note, now overdue, promised to pay to the

order of the defendant E. F., $ on the day of , 19 , (or, days after date) ; 2. The said defendant endorsed the same to the defendant, G. H.,

who endorsed it to plaintiff

3. The said promissory note and the endorsements thereon were in

the words and figures following: (here copy)

4. On the day of , 19__, the same was presented (or, state facts excusing the want of presentment) to the said C. D. for

payment, but was not paid

5. The said E. F. and G. H. had due notice thereof

6. The defendants, or either of them, have not paid the same

7. (Demand for judgment.)

18. On a marine insurance policy on a vessel lost by the perils of the

sea.—The plaintiff says that:

1. The plaintiff was the owner of (or, had an interest in) the

ship at the time of its loss as hereinafter mentioned;
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 185

2. On the day of , 19__, the defendant in consideration

of $ to him paid (or, which plaintiff then promised to pay)

executed to him a policy of insurance upon said ship, whereby he

promised to pay the plaintiff days after the proof of loss and

interest, all loss and damage accruing to him by reason of the

destruction or injury of the said ship during its next voyage from

to whether by perils of the sea of fire or by other causes therein mentioned, not exceeding $ ; 3. The said vessel while proceeding on the voyage mentioned in

the said policy, was on or about the day of , 19__, totally

lost by the perils of the sea (or otherwise) ;

Jf. The plaintiff's loss thereby was $ ; 5. The plaintiff duly performed all the conditions of the said

policy on his part;

6. The defendant has not paid the said loss

7. (Demand for judgment.)

19. Action on a fire insurance policy.—The plaintiff says that:

1. The plaintiff was the owner of (or, had an interest in) a dwelling house (or other building) known as No. , street, in the city of , at the time of its destruction (or

injury) by fire, as hereinafter mentioned;

2. On the day of , 19__, at , in considera-.

tion of $ , paid to it (or , promised to be paid to it) the

defendant executed to the plaintiff a policy of insurance on said

premises for the amount of $ ; 3. On the day of , 19__, the said (dwelling house, or

other building) was totally destroyed (or greatly damaged) by fire;

4. The plaintiff's loss thereby was $ ; 5. The plaintiff has duly performed all the conditions of said

policy on his part;

6. The defendant has not paid the said loss;

7. (Demand for judgment.)

20. For breach of agreement to convey land.—The plaintiff says

that:

1. On the day of , 19__, at , the plaintiff

and defendant entered into an agreement, in writing, under their

hands (here state the terms of agreement) ; 2. On the day of , 19__, (the date mentioned in the

agreement, if any,) the plaintiff demanded the conveyance of the

said property from the defendant and tendered the said sum of

$ , to the defendant, and all conditions were fulfilled, and the

time has elapsed necessary to entitle the plaintiff to have the said

agreement performed by the defendant on his part;

3. The defendant has not executed any conveyance of the said

property to the plaintiff
186 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

4- (Here state damages, ordinary and special.)

5. The plaintiff prays judgment for $ , compensation for

breach of said agreement, together with the costs of the action.

21. For breech of contract to serve.—The plaintiff says that:

1. The plaintiff and defendant mutually agreed that the plaintiff

should employ the defendant at (an annual or other) compensation

of $ , and that the defendant should serve the plaintiff (as

clerk or otherwise), for the term of ; 2. The plaintiff has always been ready and willing to perform his

part of the said agreement, and on the day of , 19 , of- fered to do so

3. The defendant entered upon the service of the plaintiff on the

above-mentioned day, but afterwards, on the day of , 19 —, without just cause, refused longer to serve the plaintiff aforesaid ; 4- (Here state damages, ordinary or special) ; 5. (Demand for judgment.)

22. For breach of warranty of chattels.—The plaintiff says that

1. On the of , 19__, at , the defendant warranted to the plaintiff (a steam engine, or other chattel) to be in good

working order, and thereby induced the plaintiff to purchase the same

of him, and to pay him (or to promise to pay him) $ therefor;

2. The said (steam engine or other chattel) was not then in good

working order, whereby the plaintiff incurred expense in having the same (engine) repaired, and lost the profit which would otherwise

have accrued to him while the (engine) was under repair;

3. The expenses incurred in such repair was $ , and the loss of profit which would otherwise have occurred to him while the

engine was under repair was $ ; 4. (Demand for judgment.)

23. Trespass on land.—The plaintiff says that

1. On the day of , 19__, at , the defendant entered upon certain land of the plaintiff, known as (insert

brief description of the premises) and depastured the same with

cattle, trod down the grass, cut the timber, and otherwise injured

the same;

2. The damages sustained by the plaintiff by reason thereof amount

to $ ; 3. (Demand for judgment.)

24. For the conversion of chattels.—The plaintiff says that

1. On the day of , 19__, at , the plaintiff was in possession of certain goods (described in the schedule hereto

annexed), or (or, say, was in possession of one hundred barrels of

flour, for instance) of the value of $ ;
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 187

2. On that day, at the defendant converted the same

to his own use and wrongfully deprived the plaintiff of the possession

of the same

3. (Demand for judgment.)

25. For damages and an injunction for carrying on a noxious manufactory.—The plaintiff says that:

1. The plaintiff is. and for years has been, possessed of cer- tain lands called situated at ; 2. Continually since the day of , 19__, the defendant

has wrongfully caused to issue from certain smelting works owned

by the defendant large quantities of offensive and unwholesome smoke

and other vapors and noxious matter, which spread themselves over and upon the said lands, and corrupt the air and settle on the sur- face of the said lands, and still continues to do so;

3. Thereby the trees, hedges, herbage and crops of the plaintiff,

growing on the said lands, were damaged and deteriorated in value,

and the cattle and live stock of the plaintiff on said lands became

unhealthy and divers of them were poisoned and died;

4. By reason of the facts aforesaid, the plaintiff was unable to pasture the said lands with cattle and sheep, as he otherwise might

have done, and was obliged to remove his cattle, sheep, and farming

stock therefrom, and has been prevented from having so beneficial

and healthy a use and occupation of the said lands as he otherwise

would have had;

0. The damages sustained by the plaintiff by reason of the said

wrongful acts of the defendant amount to $

6. The plaintiff prays judgment for the said sum of $ damages, and that a final injunction may issue restraining the defendant

from a continuance of said wrongful acts, or any of them, and for

the costs of this action.

26. For assault and battery, uith special damage.—The plaintiff says that

1. On the day of , 19__, at , the defendant assaulted and beat the plaintiff;

2. The plaintiff was thereby disabled from attending to his busi- ness (for a period stated), and was compelled to pay $ , for

medical attendance and nursing, and has been ever since disabled

from using his right arm (or otherwise state the damage, as the case may be) ; 3. By reason of the premises the plaintiff sustained damage to the amount of $ in all

J). (Demand for judgment.)

27. For libel.—The plaintiff says that

7. The plaintiff is and was on and before the day of , 19__. a merchnnt doing: business in the citv of ;
188 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

2. On the day of , 19 , at the defendant

published in a certain newspaper called (or otherwise

show how published), the following words concerning the plaintiff

(here insert the words of the publication) ; 3. The defendant meant thereby and in said publication charged

that the plaintiff had been guilty of (here insert the meaning of the

charge)

4. The said publication was false and malicious;

5. By reason of such false and malicious publication, the plaintiff was injured to the amount of $ ; 6. (Demand for judgment.)

28. To recover possession of land, and for damages.—The plaintiff

says that:

1. The defendant on the day of , 19__, unlawfully took

possession of certain land (or building) belonging to the plaintiff,

being (here describe the premises) ; 2. The defendant has retained possession of the said land from the

said day of and still retains possession thereof, and withholds the same from the plaintiff;

3. The plaintiff has sustained damages to the amount of $ in

loss of profits and otherwise from the unlawful retention of said

premises by the defendant;

4. The plaintiff prays judgment for the possession of said land,

and for said sum of $ , damages and profits, and for costs of

the action.

29. For movable property wrongfully taken.—The plaintiff says that

1. On the day of , 19__, at , the plaintiff

owned (here state fact showing the right to the possession) the

goods mentioned in the schedule hereto annexed (or describe the

goods), the value of which is $ ; 2. From that day until the commencement of this action the defendant has detained the same from the plaintiff;

3. Before the commencement of this action, to wit, on the day

of , 19 , at , the plaintiff demanded the same of

the defendant, but he wrongfully refused to deliver them

4. The plaintiff prays judgment for the possession of said goods,

or for $ , damages, in case such possession can not be had, and

for $ damages for the detention thereof, and for costs of the

action.

30. For specific performance.—The plaintiff says that

1. On the day of , 19__, the defendant was absolutely

entitled to the parcel of land described in the agreement hereto

annexed;
CODE OF CIVIL PROCEDURE OF THE CANAL. ZONE. 189

2. On the same day the plaintiff and defendant entered into an

agreement under their hands, a copy of which is hereto annexed;

3. On the day of , 19__, at , the plaintiff

tendered $ to the defendant and demanded a conveyance of

said property

If.. The defendant then and there refused to convey the same to the

plaintiff;

5. The defendant has not executed such conveyance

6. The plaintiff is still ready and willing to pay the purchase

money for the said property, to the defendant;

7. The plaintiff prays judgment that the defendant be ordered to execute to the plaintiff a conveyance of said property in accordance

with the terms of said agreement, and damages to the amount of

$ for withholding the same, and for costs of the action.

31. Answer, general denial.—The defendant denies each and every

allegation in each and every paragraph of the plaintiff's complaint.

32. More specific answer.—For answer to the plaintiff's complaint

the defendant says that

1. He admits (or denies) the first paragraph;

2. He admits (or denies) the second paragraph, etc. 33. Answer of duress to action on promissory note.—For answer to the plaintiff's complaint the defendant says that

1. He admits each paragraph thereof;

2. For special defense the defendant says that the promissory note sued on was extorted from the defendant by threats of bodily harm

(or during imprisonment brought about by the plaintiff for that purpose) and was executed by the defendant under fear of the same (or

from fear whije in prison). (In either case state particulars) ; 3. Said note was executed by the defendant without any consideration therefor.

34. Accord and satisfaction.—For answer to the plaintiff's complaint the defendant says that

1. He admits each paragraph of the complaint;

2. For special defense the plaintiff says:

a. That on the day of 19__, at the defendant delivered to the plaintiff the promisory note of ( );

b. That the plaintiff then and there accepted the same in full satis- faction and discharge of the claim set up in his complaint.

35. Statute of limitations.—For answer to the plaintiff's complaint

the defendant says that

1. He admits each paragraph of the complaint;

2. For special defense the defendant says that the cause of action

set forth in plaintiff's complaint did not accrue within year

before the filing of the said complaint.

803a—07—m 13*
190 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

36. Demurrer stating grounds therefor.—The defendant demurs to the complaint ; and he shows the following causes for demurrer

1st. 2d. 3d.

(Setting out each cause separately.)

37. Demurrer to answer.—The plaintiff demurs to the answer (or

to the answer of defendant ), and he shows the following causes for demurrer, to wit

38. Subpoena.—

To , of , greeting:

You are hereby commanded to be and appear at the Circuit Court

in and for the circuit on the day of , 19—, at o'clock in the forenoon (or afternoon) then and there to testify in the

action of against there pending.

Fail not, under penalty of the law.

Witness the Honorable , judge of said court this

day of , 19__,

Clerk.

39. Subpoena duces tecum.—

To of greeting

You are hereby required to appear before the Circuit Court in and

for the circuit, on the day of , 19 , at o'clock

in the forenoon (or afternoon) and to bring with you into court the

following described (book, deed, writing, or other document) ; it being necessary to use the same as testimony in a cause there pending, wherein is plaintiff and is defendant.

Hereof fail not, under penalty of the law.

Witness the Honorable , judge of said court, this

day of , 19 —

,

Clerk.

40. Summons.—

To , of , in the Canal Zone:

You are hereby required to enter your appearance in the clerk's

office of the above named court at in the said Canal

Zone within twenty days after the service of this summons upon you,

exclusive of the day of such service, if it is served on you in the said

Canal Zone; otherwise within forty days; and to answer the complaint of the said plaintiff which is hereto attached and herewith

served upon you, within the time fixed by. the rules of said Court.

If you fail to appear within the time aforesaid, the plaintiff will

take judgment against you by default and demand from the said oourt the relief applied for in said complaint.
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 191

Witness the Honorable judge of said court this

day of , 19 —

,

Clerk.

41. Officer's return of service.—

United States of America,

Canal Zone, Judicial Circuit. I have this day served a copy of the within complaint and process

upon personally (or state the other manner of service

employed).

Dated this day of , 19__.

Marshal.

42. Order of attachment of property.—

United States of America,

Canal Zone, Judicial Circuit.

To the marshal of the Supreme or any Circuit Court or deputy. greeting : Whereas , of , (or as agent

or attorney, of for the plaintiff) has complained on

oath to the Circuit Court of the circuit, that , of

, is justly indebted to the said (plaintiff),

in the amount of $ , and that said (defendant)

is a nonresident (or is about to abscond from the Canal Zone, etc),

(reciting the affidavit) and whereas security has been given by the

plaintiff according to law; we, therefore, command you, that you

attach the estate, real and personal, of the said , defendant in your circuit, to the value of the said demands and costs of suit, and that you safely keep the same according to law, unless

the defendant give security to pay such judgment as may be recov- ered in the said action, in the manner provided by law, and that you

summon the said , defendant, if to be found in your

circuit, to appear before the Circuit Court of the said circuit, on

the day of to answer the above complaint, a copy of

which is hereto annexed, and do you have there in said court then

this writ with your proceeding endorsed thereon.

Witness my hand this day of , 19__,

, Judge.

An order for arrest of the person of the defendant may be in the same form with the necessary modifications.

43. Ordinary execution.—

United States of America,

Canal Zone, Judicial Circuit.

To the marshal of the Supreme or any Circuit Court or deputy, greeting : We command you that of the goods and chattels of

(the defendant) you cause to be made the sum of $ damages,

together with interest thereon from the date of this execution until
192 CODE OF CIVIL PEOCEDURE OF THE CANAL ZONE.

the date of payment at the rate of per cent per annum; and the

further sum of $ for costs of suit, together with your lawful

fees for the service of this execution, all in money of the United

States, which (the plaintiff) recovered in our Circuit

Court for the said circuit on the day of , 19 , against

(the defendant) for damages, interest, and costs, and

that you render the same to the said (the plaintiff),

aside from your own fees on this execution, and do you likewise return this writ into court within days from date, with your

proceedings endorsed hereon. But, if sufficient personal property

cannot be found whereof to satisfy this execution and lawful fees thereon, then we command you of the land and buildings of the said

defendant, to make the said sums of money in the manner required

by law, and to make return of your proceedings with this writ within

days from date. Witness the Honorable , judge of said court, this

day of , 19__.

Clerk.

FEES.

Sec. 809. Lawful to demand specific fees only.—It shall be lawful

for the clerk of the Supreme Court, the clerks of the Circuit Courts,

referees, and commissioners appointed by the Circuit Courts, bailiffs,

marshals, district judges, notaries public, and other officers and per- sons hereinafter mentioned, together with their assistants and deputies, to demand, and receive, the hereinafter mentioned fees and no more; but all fees collected by officers drawing a regular salary or

lixed compensation from the Government of the Canal Zone shall be

paid into the treasury thereof.

Sec. 810. Clerk of the Supreme Court.—For filing bill of exceptions or an appeal, entering appearance of all the parties, entering

all orders of the court in the action or proceeding, filing and docketing all motions, docketing of case on all proper dockets, and indexing

the same, entering the final judgment or decree, recording the final judgment or decree and certificate of judgment or decree to the lower

court, taxing the costs, administering all necessary oaths or affirmations in the action or proceeding, recording the opinion of the court,

issuing all necessary process in the action or proceeding not herein

otherwise provided for, for each action or special proceeding, twelve

dollars; but if the record of the decree or judgment or the opinion of

the court contains more than three hundred and fifty words, then an

additional fee shall be charged of ten cents for each additional one hundred words in the record.

For furnishing transcripts of the record or copies of any record,

decree, judgment, or entry of which any person is entitled to demand
CODE OF CIVIL PROCEDURE OP THE CANAL ZONE. 193

and receive a copy, for each one hundred words, ten cents. For each

certificate not on process, twenty-five cents. For every search for

anything above a year's standing and reading the same, twenty-five

cents. I For a commission on all money coming into his hands by law or order of the court and caring for the same, one-half of one per cent on all sums not exceeding one thousand dollars, and one-quarter of one per cent on all sums in excess of one thousand dollars, and one- eighth of one per cent on all sums in excess of ten thousand dollars. For any other services as clerk not provided for in this section if such there be, such sum as the judges of the Supreme Court shall

fix by general rules. Sec. 811. Fees to he paid by the advancing party.—The fees of

the clerk of the Supreme Court shall be paid to him at the time of

the entry of the action in the Supreme Court by the party who enters the action in the Supreme Court by bill of exceptions, or appeal,

or otherwise, and the clerk shall in all cases give a receipt for the same and shall enter the amount received upon his book, specifying

the date when received, person from whom received, name of action

in which received, and amount received. If the fees are not paid,

the court may refuse' to proceed with the action until they are paid

and may dismiss the bill of exceptions or appeal for failure to prosecute if the fees are not paid within a reasonable time and after rea- sonable notice.

Sec. 812. Clerks of Circuit Courts.—For filing all complaints, answers, motions, amendments and pleadings for making all entries

upon proper dockets, for entering all appearances, for entering all judgments, orders, and decrees, for issuing all processes, preliminary

and final, approving all bonds to be by him approved, filing same,

for administering all oaths or affirmations, certifying the same, taxing costs, making necessary entries on indexes, and for all other

services performed by him, his deputies, or assistants, in any one

action, eight dollars. For all clerical services in the allowance of wills, granting letters of administration, appointment of guardians, trustees, settlement of

the accounts of executors, administrators, guardians, trustees, and

recording final and interlocutory orders, judgments, and decrees

therein, filing all inventories and appraisement, and for all other

work' as clerk pertaining to any one estate, twelve dollars; but when

any record of a final decree or judgment of the court in a special proceeding, including an allowance of an account, or of an inventory of

property, contains more than three hundred and fifty words, for

each one hundred words in addition to three hundred and fifty words

in such record, ten cents. For all services as referee or as commis-
194 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

sioner to take testimony under appointment by the court, such sum

as the judge shall allow, but the allowance shall be proportionate

to the other fees in this section provided. For certifying the official act of a district judge or other certificate, with seal, twenty-five

cents. For filing and recording all papers relating to an adoption,

in each case of adoption, three dollars. For certified copies of any

paper, record, decree, judgment, or entry of which any person is entitled to demand and receive a copy, for each one hundred words,

ten cents. For all copies of record, or bills of exception, or testimony

or of other documents for transmission to the Supreme Court, ten

cents for each one hundred words.

For a commission on all money coming into his hands by law or order of court and caring for the same, one half of one per cent on

all sums not exceeding one thousand dollars, and one quarter of one

per cent upon all sums in excess of one thousand dollars, but not in excess of ten thousand dollars, and one eighth of one per cent on all sums in excess of ten thousand dollars. For any other services as

clerk, not provided for in this section, if such there be, such sum as the judges of the Supreme Court shall fix by general rules. Sec 813. Marshal, and other persons serving process.—For execut- ing process, preliminary and final judgments, and decrees of any

court, for each mile of travel in the service of process going one way,

reckoned from the place of service to the place to which the process is returnable, ten cents ; for serving an attachment against the property

of defendant, one dollar, together with a reasonable allowance to be

made by the court for expenses, if any, necessarily incurred in caring

for the property attached; for arresting each defendant fifty cents; for serving summons and copy of complaint for each defendant, one

dollar; but if the complaint exceeds three hundred and fifty words,

then for each additional one hundred words, ten cents; but in

special proceedings, testamentary or administrative, where several

members of a family residing at the same place are defendants the

fee for each defendant shall be fifty cents; for serving subpoenas, for

each witness served, twenty-five cents besides travel fees; for each

copy of any process necessarily deposited in the office of registrar of

deeds ten cents for each one hundred words, but not less than fifty cents in each case; for taking bonds or other instruments of in- demnitj' or security, for each, twenty- five cents; for executing a writ of process to put a person in possession of real estate, one dollar; for attending with prisoner on habeas corpus trial, each day, one dollar; for transporting each prisoner on habeas corpus or

otherwise, when required, for every mile going and returning, ten

cents; for furnishing food for prisoner, for each day, twenty

cents; for advertising sale, besides printer's charge, fifty cents;
CODE OF CIVIL PEOCEDUKE OF THE CANAL ZONE. 195

for taking inventory of goods levied upon, to be charged only when

the inventory is necessary, a sum fixed by the court not exceeding

the actual reasonable cost of the same to be shown by vouchers ; for

levying an execution on property, one dollar. On all money collected by him by order or any decree, execution,

attachment, or any other process, the following sums, to wit

On the first one hundred dollars or less two per centum.

On the second one hundred dollars, one and one half per centum; on all sums between two hundred dollars and one thousand dollars, one per centum; on all sums in excess of one thousand dollars, one- half per centum.

Sec. 814. District Judges.—For each action tried, including entry

of action, judgment, and record, and swearing all witnesses, one dollar; for each summons or subpoena containing one name twenty

cents; for each additional name therein four cents; for issuing

execution twenty-five cents; for administering oath upon airy affi- davit or other paper with certificate of oath, twenty cents; for an

appeal, with proceedings taking bond, making and forwarding transcript of record, seventy-five cents; for each certificate not otherwise provided for, fifteen cents; for writing and certifying deposition, including the administration of oath to the witness, ten cents for each one hundred words in the deposition and certificate; for

certified copies of any record of proceeding of which any person is entitled to receive a copy, ten cents for each one hundred words.

A district judge upon receiving payment of fees allowed to him

b}^ law, must render to the person or persons so paying an itemized

account thereof.

Sec. 815. Notaries public.—Notaries public shall receive the fol- lowing fees only for their services

For protesting bill or note for non-acceptance or non-payment and

giving notice, seventy-five cents; for registering such protest and

making record, twenty-five cents; for attesting letters of attorney

with seal, twenty-five cents; for notarial affidavit to an account or other writing, with seal, twenty-five cents; for each oath or affirmation, with seal, twenty-five cents ; for taking proof of debts to be sent abroad, twenty- five cents; for a certified copy of record and affidavit of its correctness, fifty cents; for writing depositions and affidavit, ten

cents for each one hundred words; for taking proof or acknowledgment of any writing concerning real or personal estate and certificate thereof, for each party, twenty-five cents. Sec. 81G. Other officers taking depositions.—Other officers taking

depositions shall receive the same compensation as above provided for

notaries public for taking and certifying depositions.

Sec. 817. Witness fees.—Witnesses in the Supreme Court and in

Circuit Courts, either in actions or special proceedings, shall be
196 CODE OF CIVIL PROCEDURE OF THE CANAL ZONE.

entitled to one dollar per day and ten cents for each mile going to the place of trial from their homes by the nearest route of usual

travel; but mileage shall be charged but once in the action unless

witness is compelled to attend more than one term of court, nor shall

any allowance be made for mileage except that traveled within the

Canal Zone.

Witnesses before district courts and other inferior tribunals shall be allowed one half dollar per day and the travel fees above provided

and no more. Fees to which witness may be entitled in a civil action shall be

allowed, on the affidavit of the witness, stating the number of days he

has attended, the amount of mileage to which he is entitled, to be

taken and preserved by the clerk of the court, district judge or

other officer before whom the witness was called to testify, and a

certificate of the allowance shall be given to the witness. But on

final taxation of costs the truth of the affidavit may be contested and

this allowance may be set aside in whole or in part as the facts re- quire. A witness shall not be allowed compensation for his attend- ance in more than one case or on more than one side of the same case

at the same time, but may elect in which of several cases or on which

side of the case, when he is summoned by both sides, to claim his

attendance ; a person who is compelled to attend court on other busi- ness shall not be paid as a witness. Sec. 818. Other fees to be -fixed by general rules of the Supreme

Court.—If it shall appear that legal services are required of clerks

of court, marshals, or officers of the court, other than those for which

specific fees have been provided in this chapter, the judges of the

Supreme Court shall by general rules provide for a scale of fees for

such other services, which scale shall be proportionate to the fees in this chapter provided for similar services. Sec 819. Suing in forma pauperis.—Any judge or clerk of any

circuit or district court may authorize any person to sue as a pauper

in their respective courts, when he files an affidavit setting forth facts

showing that he has good cause of action, and that he is unable to procure a bond, when such bond is required, accompanied by a certifi- cate of a practicing attorney in good standing that the plaintiff has

fully stated the facts of his claim to him and that the attorney believes he has a good cause of action, and that he further believes the

plaintiff is unable to pay the costs of the action or procure bond.

Chapter XLVII.

FINAL PROVISIONS. Sec 820. Repeal of existing codes, etc.—All codes, statutes, acts, decrees, and orders and parts thereof heretofore jn'omulgated, en-
CODE OF CIVIL PROCEDURE OF THE CANAL ZONE. 197

acted or enforced in the Canal Zone, prescribing the procedure in

civil actions or special proceedings in any court or tribunal, and all provisions of the Civil Code of the Canal Zone now in force in so far

as they are in conflict with the express provisions of this Code, are hereby repealed; and the procedure in all civil actions and special

proceedings in all courts and tribunals shall hereafter be in accord- ance with the provisions of this Code : Provided, nevertheless

1. That the procedure in all actions and special proceedings now

pending in the Supreme Court may be in accordance with the

existing procedure, except in so far as the Supreme Court may

determine that the provisions of this Code can be conveniently applied

to such actions and procedure

2. That all actions and special proceedings now pending in Circuit Courts, the trial of which has been commenced and not finished,

under the existing procedure, may be completed in accordance with

that procedure in Circuit Courts and in the Supreme Court, except

in so far as the Judge of the Circuit Court, or the Supreme Court,

may determine that the provisions of this Code can conveniently be

applied to such actions and proceedings

3. That no action or special proceeding now pending in a Circuit

Court, the trial of which has not already been commenced, shall be

discontinued or abated because not commenced in accordance with the

provisions in this Code, but all future procedure in such action or

special proceeding shall be in accordance with the provisions of this

Code so far as this Code may be conveniently applicable to the con- duct of such actions or proceeding

4. That the Supreme Court shall not reverse or annul the proceedings in any Circuit Court in actions or special proceedings now

pending therein, because of want of conformity in the proceedings

to the provisions of this Code, unless such want of conformity shall

have impaired a substantial right of the party attempting to set aside

such proceedings;

5. That nothing in this Code contained shall be so construed as

to divest or injuriously affect any property right that has already

become vested under existing law.

Sec. 821. When to take effect.—This Code shall take effect on the

first day of May, 1907.

ALPHABETICAL INDEX.

[Note.—Figures in parentheses refer to subsections.] Abatement: Section. New action within one year from death of party 146

Aliens, extension of time to 147 Where judgment reversed 148 Where action stayed 149 Marriage, female party 150 Death of coplaintiff 151 Death of codefendant 152 Surviving parties 153, 154 Ejectment, etc., death of coparty 155-157 Where cause of action does not survive to coparty 158 Death of personal representative . . - 159 Death of public officer or trustee 160 Party becoming insane 161

Partition suits, no abatement in 162, 163 Where action brought for another 164 Writa of error, certiorari, etc 165 Process to any circuit 166

Disabilities, when available 167, 168

Directors and stockholders of corporations 169 Acknowledgment or new promise must be in writing 170 Where cause of action arises in foreign country 171 Construction of word '

' action " 1 72 Absence, time of, not included in period of prescription 46 Absent person: Administration of estate of 691 Share of, in decedent's estate 788 Accord and satisfaction ; form of answer 808 ( 34) Accounting involved in appeal, may be referred to commissioner 535 Accounts: Of guardians 603, 604 Of executors 707, 718 Of trustees 626 Of executor, trustee, or guardian, appeal from settlement of 802-804 Action

Definition 1 , 1 72 Who may be parties 107 When deemed commenced _ 45, 404

Dismissal of 120

c z—07 m 14 199
200 ALPHABETICAL INDEX.

Adjournment: Section. Of district court 57 Of Circuit Court 124 Administration of property: Of person unheard of for fifteen years 691

(See Executor.)

Administrator:

In general, i See Executor. | Special, no appeal allowed from appointment of 807 Admiralty; effect of record of foreign court 327 Adoption. (See Minors, adoption and custody of.) Advancement to lineal heirs 789, 790 Adverse possession. (See Prescription.)

Advertisement of property to be sold under execution: Real 479

Pers. >nal 499

Affidavit: Use of 364 Who may administer oath for

In Canal Zone 365

In United States 360 In foreign country 367 Taken in United States or foreign country, certification of 368

Affirmation of judgment. (See Supreme Court, appellate jurisdiction.) Affirmative allegation, must he proved 314 Agreed statement of facts 127 Agreement:

Includes 303 Terms of, In »w proved 303 When invalid unless made in writing 351 Aliens: Extension of time allowed for commencement of action 147 Wills made by .'. 671,675

Alteration: In writing, effect on admissibility as evidence 352 May be made in prescribed form of pleading or process 808 Amendment of pleadings in Circuit Courts 103 Answer:

In Circuit Court, definition and requisites 87 Forms of 808 (31-35)

Appeal:

On interlocutory order of Circuit Court 110

< )n judgment of Circuit Court for contempt 251 From action of executor on claim 729, 769 Regarding custody of children of divorced parents 801 From settlement of account of executor, trustee, or guardian 802-S04

In case of allowance or disallowance of will 805 From decree of distribution of decedent's estate 806

In other special proceedings affecting settlement of estate 807 May lie dismissed if fees not paid s l I From district courts

May he made to what court 07

Effect of 08

I low perfected 69
ALPHABETICAL INDEX. 201

Appeal —Continued. From district courts —Continued. section.

('< )]>y of record to be transmitted 70 Papers to be delivered to clerk of Circuit Court 71 Settlement of , 72 Procedure upon, in Circuit Court 105 From Circuit Courts, procedure upon, in Supreme Court

In general 533 Hearings upon ; 534, 535 In special proceedings 535

Correction of incomplete record 538

{See Exceptions; Supreme Court, appellate jurisdiction.

Appearance, unauthorized 28 Argument in Circuit ( lourts 1 25 Arrest of defendant: Grounds for 427 By whom order may be granted 428 When judge shall grant order 429

( >bligation for damages in case of 430 Execution of order 431 Discharge of defendant before execution 432, 433 Giving bail 433 Exoneration of bail 434, 435

Filing of order of arrest and bond 436

Disposition of money deposited 437 Reduction of 1 >ail or vacating order of arrest 438 Defendant may be given jail limits 439

Relief from jail limits 439 Form of order 808 (42) Assault and battery 808 (26) Association, illegal 208 (3) Attachment: Grounds for 440 By whom order may be granted 441 When judge shall grant order 442

< )1 (ligation for damages in case of... 443 Execution of order

As to movables 444 As to real property 445 As to stocks and shares 44H As to personalty Dot capable of manual delivery 447

Its effect as to personalty 448

Disposition of debts, credits, or other personalty 449 Return of order 450

Disposition of perishable property 451 Final disposition of property if judgment for plaintiff 452

Collection of balance of execution 453 Proceedings after return of execution unsatisfied 454

I disposition of property if judgment for defendant 455

Dissolution of order 456 Discharge on motion 457 Right of third person against officer 458 Form of i >rder 808 (42) Attorneys. {See Lawyers.)
202 ALPHABETICAL INDEX.

Authentication

Section. Of pleadings 95 Of written instruments 96 Of public writings, judicial records, etc 316-322

Bail:Giving 433 Exoneration of 434, 435 Reduction of 438

In hal leaa corpus proceedings 577

Bar. (See Lawyers.

)

Bond

Includes 1 Of surety c< tmpany 1 On appeal from district court 69 On bill of exceptions 137 In case of arrest 430, 436

I n case of attachment 443 In case of execution 494-498

In case of preliminary injunction 177, 178, 181 In proceedings for manual delivery of personalty 261, 265, 266 Of guardian 590, 596, 612-614 Of trustee 626, 628, 629 Of executor 678, 679, 697 In case of appointment of receiver 188, 189 Of heirs, etc., for distribution of decedent's estate 783 On appeal in special proceedings 804 Books of account, prima facie evidence 302 (6) Books of science or history admissible as evidence ... 336

Certiorari proceedings in circuit court

Issuance of order 228

Service of order 229 Enforcement of order 230

Final proceedings 231

Certifying judgment to inferior tribunal 232 Preliminary injunctions 240 Expediting proceedings 241 In Supreme Court 551, 554, 555 Children:

When ran not testify '. 398 (2) Their allowance during settlement of decedent's estate 719 Born after making of will, share of 784 Omitted from will, share of 785

(See Minors, adoption and custody of.

)

Circuit courts, rules of 6 Circumstances, may be shown for construction of instrument of writing 306 Claims against decedent's estate, allowance of 721-732

( See Executor.)

Clergyman, when can not testily 398 (5) Clerk

May be appointed temporarily 11 Can not act as lawyer 35 Of circuit court

< leneral duties of 399 Books kept by 399,402

T( i have custody of moneys 403 Fees of 812
ALPHABETICAL INDEX. 203

Clerk—Continued. Section. Of Supreme Court

Duties of 557, 558 Fees of 810, 811

Client: Funds of, retention by lawyer 30 Communications of, to be kept inviolate 31 Code:

Repeals conflicting codes, etc H20 When shall take effect 821 Commissioners:

In partition proceedings (see Partition) 195-207

Fees of, how taxed 532 Community property, descent of 720 Complaint:

In district court 51 In Circuit Court

Definition and requisites 83 Procedure of clerk when filed 405

F< irms of 808 (2-30)

Compromise:

Can not be made by lawyers without consent of clients 27

( tffer of, not admissible as evidence 362 Construction: Of words found in Code 1 Of provisions of Code 2 Of pleadings in Circuit Courts 99 Of statute or instrument containing several provisions 305 Of instrument where intention of different parties not the same 310 Of statute or instrument in favor of natural right 311 Contempt:

District judge may punish 58 What acts may be punished summarily by Circuit Court 242 What other acts are contempt 243 Accused entitled to be heard 244 Right of bail 245

Trial 246 Punishment 247 Imprisonment until obedience of order 248 Proceedings when party released on bail fails to appear 249 Right of court to release person 250 Judgment of Circuit Court reviewed by Supreme Court 251 Continuance of trial: In case of suspension of lawyer 22

(See Postponement of trial.) Contract: New or continuing, how evidenced 1 70 Consideration for, presumed 350 (36)

[See Agreement.

)

Conveyance:

Instrument of, admissible as evidence 347

(See Agreement; Contract; Deed; Sale.) Copartnership, presumption of 350 ( 27

)

Copy, how certified for use as evidence 335
204 ALPHABETICAL INDEX.

Corporation: section. Receivers of '.

.

.' L85 (1), 187, 224, 225 Action against, for usurpation 209, 223-227 Attachment of stocks or shares of 446

Costs:

( )rdinarily allowed prevailing party 526 When action dismissed for want of jurisdiction 527 Lawyers' fees taxed as 528

Restriction of 529 Amounts allowed

In district courts 530

In Circuit Courts 531 In Supreme Court 532 Taxation of, in habeas corpus proceedings 585

In probate proceedings 648

(See Fees.) Counterclaim:

Set forth by answer in Circuit Court 88, 89 Omission to set up 90

Courts, powers of 11 Credibility of witness, evidence as to 315 (16) Cross complaint:

Filing of 91 Judgment by default on 122 Cross-examination of witness 355, 396 Damages, no recovery from judges by reason of judicial action 9 Death:Of party, how action may proceed 112 Presumption of 350 (24) Of two persons in same calamity, presumption of survival 350 (37) Of party, when does not prevent judgment 463

(Sec Abatements.)

Debts against decedent's estate. (See Executor.

Deceased person:

Declarations, etc., of, when admissible as evidence 299, 300, 315 (4) Personal transactions with, when can not be testified to 398 (7) Estate of, when may be settled without legal proceedings 632, 633

(See Death; Abatement; Probate proceedings.

Deed

Of officer selling under execution 512 Of executor, effect of 752, 754 Default:

In district court

Judgment for plaintiff by 53 Vacating 54

In ( 'ircuit Court

Judgment for plaintiff by 121 Judgment for defendant by, on cross complaint 122 Defendant: When unknown, how designated 104 (nknown, how served with summons 413. 414 Arrest of. (See Arrest of defendant.)

Definitions, general 1 Defense, set fortb by answer in Circuit Court 88
ALPHABETICAL INDEX. 205

Demurrer: section. To complaint

Grounds for 84 When not allowed 85 Form of 808 i 36

To answer

Filing of 92 Grounds for 93 Form of 808 (37) To pleadings in general, proceedings on 94 Deposition:

Written declaration under oath must be 369 May be read by either party at any stage of action 380 Of witness out of Canal Zone, to be used in Zone

I n what cases taken , 370 How taken 372-374

Trial not delayed pending 375 Use of , 376 of witness within Canal Zone, to be used in Zone

In what cases taken 371 How taken 377-379 Use of 378 To be used outside of Canal Zone

In what cases may be taken 381-383 Howr taken 384 For perpetuation of testimony

In what cases may be taken 386 Order of judge for 387 How taken 388, 389 Papers filed, prima facie evidence of regularity 390 Use and effect of 391, 392 In probate proceedings 647 Fees for taking 815, 816

Deputies, powers of 3 Descent of estate not willed 719

Destitute litigants: Assignment of lawyer for 34 May be authorized to sue in forma pauperis 819

Devise, liable for payment of decedent's debts 758

Direct examination, leading questions not allowed 353

Directors of corporations, abatement of actions against 169

Disabilities: Exceptions and saving of rights on account of, as to prescription 41. 44 When available 167 When two or more coexist 1 68 Disbarment:

Causes for 21 Institution and cost of proceedings 24 Hearing of charges 25

Disinheritance, existing law as to 782 Dismissal of actions in Circuit Courts 120

Disqualification of judge:

Grounds for 8 Of district judge, who may act 66 Of circuit judge, proceedings upon 394
206 ALPHABETICAL INDEX.

Distribution of decedent's estate: Section. Among creditors 764-770

After payment of debts, etc 782-793 Appeal from 806

(See Executor.

District court, procedure in 50-81

District judge:

Definition 1 Who may act in case of disqualification 66 Attendance on proceeding to vacate judgment 145 Fees of 814

Divorce, custody of children in case of 800, 801 Docket: Of district court

What shall contain 62 Entry to identify 63

Final disposition of 64 Of Circuit Court

Requisites of 399, 400 New, preparation of 401 Book of final record „ 402 To be open to inspection 464 Of Supreme Court 558 Documents

Paper used 7 To accompany complaint in Circuit Court 83 (4

Form of, in proceedings in Circuit Court 83 (5) Excluded by Circuit Court 83 (9)

Official, how proved 330

Dollars, definition 1 Duress, form of answer as to 808 (32) Earnings, when can not be applied to satisfy judgment 521 Ejectment:

Death of eoplaintiff 155, 156 Death of codefendant 157 Embezzlement of decedent's property 738-742 English language:

Shall be official 12 Use of, in Circuit Court 83 (5-8)

Entries: In official docket, prima facie evidence 332

Original, what constitute 345 Escheats 779-781

Estate. [See Trusts and trustees; Probate proceedings; Guardians; Wills; Executor.

)

Evidence:

I 're] londerance of, how determined 291 Rules of, shall be uniform 292

.Matter judicially recognized 29.". Personal knowledge and hearsay 294 Regarding act, declaration, or omission of one party, does not affect another 295 Exception where one derives real property from another 296 Exception where such declaration, etc., forms part of transaction 297
ALPHABETICAL INDEX. 207

Evidence—Continued. section. Prima facie, definition 298 Of contents of writing or agreement 302, 303 Required only of material allegations 312 Must be relevant 313 Of affirmative and negative allegations 314 May be given as to what facts 315

Public writings admissible as 316 Printed laws of State or country 317 Attested copy of foreign law 318

Oral proof of United States or foreign unwritten law 319- Of domestic judicial records 320 Of foreign judicial records 321, 322 What may be considered by Supreme Court 534, 535 What admissible on new trial 542 Return of habeas corpus, when considered prima facie 579 Examination:

Of applicant for admission to the practice of lawT —

Subjects upon which examined 14 Place and manner of holding 16 Of judgment debtor when execution returned unsatisfied 513, 514, 516-519

Of. debtor of judgment debtor, etc 515 Of executor 707 Exceptions:

Definition 134 May be made to what rulings 134 Manner of taking 135 How perfected 136

Shall stay execution 137 By creditors and distributees of decedent's estate 729 Procedure upon, in Supreme Court

In general 533 Hearings upon 534 Compelling judge of lower court to sign 536 When record incomplete 538

Dismissal of 537-539, 811 To be printed -^49 (See Supreme Court, appellate jurisdiction.)

Execution

Fn >m district court 65, 502

Issuance, form, and requisites 465 Under special judgments 466 Judgment lien, lapse thereof 467 Exemption in favor of party restrained 468 May be obtained on judgment, in favor of whom and against what 470

After expiration of judgment lien 471 Interest on judgment 472 Return of 473 Binding personalty 474 Property subject to 475, 493, 505 Order of levy under 476 Property taken on, how sold 477 On concurrent j udgments 478 Ad vertisement of real property for sale 479

Illegal sale, liability of marshal 480
208 ALPHABETICAL INDEX.

Execution—Continued. Section. Sale of real estate, marshal's certificate 481, 482 Redemption of real estate sold under 483 Rights of purchaser pending redemption period 484

Rights of purchaser after lapse of redemption period 485 Deed prima facie evidence of regularity of sale • 486

Perfecting execution lien in another circuit 487-489

In case of death of plaintiff 490, 491

In case of death of defendant 492 Care of live stock or other personalty 493 Indemnity bond 494 Delivery bond 495-498 Advertisement of personalty to be sold 499 Postponement of sale 500 Return of, against personalty 501 From district court on real estate redemptions, etc 502 Fraudulent withholding of property 503 What property of married woman exempt from execution against husband . 504 Exemptions from 506 Claims by third persons to property levied on 507 Claim by debtor that property is exempt 508 Between same parties, may be set off 509

Several against same property 510

Against several, made out of property of one 511 Who may execute officer's deed 512 Examination of judgment debtor, when returned unsatisfied.. 513,514,516-519

Examination of debtor of judgment debtor, when returned unsatisfied... 515 Against creditor, may be paid by debtor 520 Judge may order property applied on 521 Judge may appoint receiver and prohibit transfers, etc 522

Liability of receiver 523 Proceedings when judgment debtor has interest in real estate 524 Proceedings when indebtedness denied or another claims the property. . . 525 Ordinary, form of 808 (43) Executive acts, how proved 330 Executor: To present will and accept or refuse trust 662

Letters testamentary to issue 676 To whom administration granted 677 Bond, general 678 Bond when residuary legatee 679 Bond when two or more are appointed 680

Neglecting to give bond 681 When a minor 682 Executor of, not to administer ' 683 Death, removal, etc., of

In case of vacancy, who may administer 684 Power of new administrator 685 Administrator appointed to act with survivor 686, 687 Court may remove or accept resignations 688 Married woman may administer 689 When coexecutor disqualified 690

Administration revoked if will discovered 692,693

Acts before revocation to be valid 694

Special administrator 695-698
ALPHABETICAL IN l)K\. 209

Executor—Continued. Section. General duties

May examine partnership books and property , 699, 700

Shall keep buildings in repair 701

Shall administer estate not willed 702 Appraisal and inventory 703-706 Rendition of account and examination 707 For what to account 708 Not to profit by increase or lose by decrease in value 709 Accountable for proceeds of real estate sold 710 When not accountable for debts due 711 Accountable for income from realty 712 Accountable for neglect to raise money 713 When to be allowed money paid as costs 714 Allowance for services 715 Account, how verified 716 Account to be settled on notice 717

Sureties on bond may be party to accounting 718 Allowance to widow and family, and descent of estate 719 Community property 720 Claims against estate, allowance of

Notice of time and place of examination 721 Time allowed for presenting claims 722, 723 Executor to report 724

Nc it ice to certain claimants at time of tiling report 725 Claims not presented, barred 726

Estate's claims to be offset 727 Claim of executor against estate 728 Exceptions by creditors and distributees 729

Estate of joint debtor liable for whole claim 730 Not to be sued on until presented and rejected 731 In suit by executor, defendant may plead claim in offset 732 Contingent claims 775

Suits by and against

Debt against estate not to be sued on until claim presented and

rejected 731 Actions to recover seizin and possession 731

Suit may be prosecuted by 732 Heir may not sue until share assigned 733 May be cited to appear 734 May compound with debtor 735 Mortgage debt due to estate 736 Mortgage debt due from estate 737 Embezzlement or fraudulent conveyance of property

Proceedings for recovery 738 Persons intrusted with estates may be compelled to render account .

739 Kmbezzlement before issuance of letters 740

Estate fraudulently conveyed by deceased may be recovered—

By executor 741 By creditor 742 Sale of estate

Realty may 1 »e sold though personalty not exhausted 743 When part can not be sold without injury 744 Persons interested may prevent sale 745
210 ALPHABETICAL INDEX.

Executor—Continued. Bection. Sale of estate—Continued. Court may order personalty sold 74b' Estate may be sold when beneficial to heirs 747 To pay debts and legacies in other countries 748 Realty acquired on execution, etc. , may be sold 749 Realty may be sold to pay legacies 750 Regulations for license to sell 751 Effect of deed 752 When executor dies pending sale 753 When deceased under contract to convey 754 Lands held in trust to be conveyed 755 Estate to be retained to meet contingent claims 776 From what estate debts to be paid

Personalty first chargeable for debts 756 From what part of testate estate debts to be paid 757 Legacy and devise liable for payment of debts 758 When executor to retain possession of estate 759

Devisees, etc., in possession must contribute 760-762 Payment of debts

Debts to be paid in full when estate sufficient 763 Order i if payment when estate insolvent 764 Dividends to be paid in proportion to claims 765

Estate of insolvent nonresident 766 Payment of claims outside Canal Zone against insolvent resident's estate. . 767 Decree for payment of debts 768 Suspension in case of appeal 769 Subsequent distributions 770 When executor personally liable 771 Time for payment, how fixed 772-774 Contingent claims 778

( Jontingent claims, allowance and payment of 775-778

Distribution of estate

Order of 782, 783 Share of child born after making of will 784, 786 Share of child or issue of child omitted from will 785, 786 Devisee dying before testator 787 Share of person absent and unheard of 788 Advancement to lineal heirs 789, 790

Partition of estate already assigned 791-793 Appeal from settlement of account of 802-804 Experts to be used in explaining certain writings 309

Facts:Findings of, must be entered 126 Agreed statement of 127 Family council: In guardianship matters, Spanish law repealed 587 May settle intestate estate 632, 633

Father, natural guardian 588

Fees:Of lawyers 29 Of executors 715

Specific, only may be demanded 809

Disposition when collected by salaried officers 809
ALPHABELICAL INDEX. 211

Fees—Continued. Section. Of clerk of Supreme Court

Enumeration . 810 Must be paid by advancing party 811 Of clerk of circuit court 812 Of marshal and other persons serving process 813 Of district judge 814 Of notary public 815 Of other officer taking depositions 816 Of witness 817 For legal services for which fees are not specifically fixed herein 818

Suit may be brought in forma pauperis 819 Findings of facts, entry of 126

Forcible entry and detainer of land or buildings: General provisions 73 Complaint 74

Trial 75

( ontinuanee 76 Judgment 77 Execution 78, 79 Judgment not conclusive in another action 80 Appeal 81 Foreclosure of mortgage on real estate: Where action must be instituted 252 Complaint 253

Trial and judgment 254

Sale of property 255

Disposition of proceeds 256, 257 Judgment for balance after sale 258

Final record 259

Foreign:

Country, cause of action arising in 47, 171 Laws

Admissible as evidence 317-319

Effect in evidence 327, 329 Forms 808

Franchise, usurpation of. (See Usurpation of office or franchise.)

Fraud, judgment obtained through, may be reversed: By Circuit Court 141-145 By Supreme Court 550 Fraudulent conveyance of decedent's property 738-742 Funeral expenses, payment of 764 Gender of words 1 General counsel may sue to establish title to real estate 272 Guardians: In general

May represent ward in partition proceedings , 206 Recording letters of guardianship 591 To pay debts of ward 598 To settle affairs of ward 599 Management of ward's estate 600

Intrusting ward with portion of estate 601 Action in proceedings relating to partition of ward's estate 602 Inventory and accounts of 603 Settlement of accounts 604
212 ALPHABETICAL INDEX.

( ruardians—Continued. Section. In general —Continued.

Sale or reinstatement of portions of estate 605

Sales must be for cash or adequate security 606 Reinvestment of proceeds of sale 607 Examination of persons suspected of defrauding ward.-, etc 609 Removal or resignation of 610 Termination of guardianship 611

B( md of 590, 612-614

Limitations i if action for recovery of property sold 615

( >rders and proceedings to be of record 616 Guardianships now pending, how shall proceed 617 Appeal from settlement of 802-804 Ad litem

Appointment of 109, 110 Not affected by general provisions respecting guardians 593

( )f minors

When and by whom appointed 586 Spanish law as to family council repealed 587 Lather or mother natural guardian 588

I )ul ies of 589, 590 Bond of 590, 612-614 Testamentary 592

{See Guardians ad litem.

Of persons of unsound mind

App< untment of 594, 595 Powers and bond of 596

Restoration of competency 597

(See Guardians ad litem. I Of nonresidents 608

i rovernment, payment of irs debts against decedents' estates 764 Habeas corpus:

T. . what shall extend 560 Granting an issuance of writ 561, 565, 566

Requisites of application for .' 562 When shall not be allowed 563

Not to authorize discharge of person charged with offense committed in another part of Canal Zone or in United States, etc 564 How prisoner may be designated 567

Requisites of writ in cases of confinement, etc 568 Form of writ when person not in custody 569 How and where may be served 570 How executed and returned 57.1 When may be returned to another judge or court 572 What return shall state 573 Return must be signed and sworn to 574 Adjournment of cause 575 When prisoner shall he discharged 576 When prisoner may be eon unit ted to jail or lei to hail 577 When prisoner must be com in it ted 578 When return is evidence, and when only a plea 579 Penalty upon clerk for refusal to issue 580 Penalty for disobeying 581 Prisoner set at liberty upon, not to be again imprisoned 582
ALPHABETICAL INDEX. 213

Habeas corpus—Continued. Section. Removal of prisoner from custody of one officer to another 583 Record of proceedings 584 Fees and costs 585 Handwriting, proof of 343 Hearsay evidence 294, 299, 300, 315 Heir. (See Wills; Executor.)

Historical works, admissibility as evidence 336 Holidays, excluded in computing time -1 Husband:

In what cases can not testify 398 (3) Not deprived of interest by will 649

Illegitimate child, adoption of 70S Impeachment of witness: May be made by what party 356, 358 By what evidence 358, 359 Imprisonment. (See Habeas corpus.

Infants, their appearance in action 109

Injunction:

Definition 1 73 Preliminary

In proceedings to vacate judgment 143 Who may grant 174 Circumstances under which may be granted 175 Time of granting 176 Manner of obtaining 177 Proceeding in case of insufficient sureties 178 Notice to defendant 179 Dissolution or modification of 180 Damages 181 In certiorari, mandate, and prohibition proceedings 240 Issued bv Supreme Court 554

Final ' 182 Enforcement of 183 Punishment for violation of 247 Insanity:

Party becoming insane during action 161 Of signer of writing, evidence of 315 (10) Of parent. (See Minors, adoption and custody of.) Of testator 669

{See Unsound mind: Guardians of persons of unsound mind: Guardians

ad litem.

)

Insolvency of decedent's estate, how debts paid 764-767

Inspection:

Docket of Circuit Court to be open to 464 Of writings shown witness, may be made by opposite party 361 Insurance, form of complaint as to 808 ( 18-19

Interest on judgment 472, 547

Intestate estates, disposition of, when no heirs are found 779-781

Interlocutory or incidental orders of Ciriuit Courts 116 Interpleading 1 1

•"> Interpretation:

( >f words in Code I Of Spanish language 12

< )f words in instrument of writing 307, 300
214 ALPHABETICAL INDEX.

Section.

1 oterpreters, to be used in explaining certain writings 309

Interrogatories: A nnexed to commission for taking depositions 373, 374

Intervention in Circuit Courts 114 Inventory: Of guardian 603 Of executor 703, 706

Inviolability of clients' communications 31, 398 (4) Isthmian Canal Commission; its officers may sue to establish title to real estate 272

Jail limits 439 Judge:

Disqualification of. i See Disqualifications of judges.

)

Civil liability of 9 Can not act as lawyer 35 Of district court

Fees of 814

(See District court, procedure in; District judge.

Of Circuit Court—

S] Trial 394, 395 Proceedings when physically disabled 395 Power of, in special proceedings 559 Judgment:

When may be reversed on accountof failure to comply with rules of court. 6 Of district court

Rendition 59 Form 60 Execution on _ 65 In case of several plaintiffs or defendants 117, 118 For plaintiff by default 121 Of subordinate tribunal obtained through, fraud, accident, or mistake

Relief may be granted by Circuit Court 141 Procedure to vacate 142 Temporary injunction 143 Final judgment 144 Attendance of district judge 145 Of court in Canal Zone or United States, its effect in evidence 323 What deemed adjudged on former trial 324

< )f foreign tribunal, its effect in evidence 327, 328 Of justice of the peace or district judge, proof of 333, 334 Entry of 459 When reserved 460 For affirmative relief for defendant 461 For possession or value of personalty 462 For payment in United States currency 462 When party dies after decision on issue of fact 463

Lien; lapse thereof 467 Not to be reversed on technical grounds 540 Of Supreme Court, certificate to be remitted to Circuit Court 543, 544 When affirmed by Supreme Court, interest may be added 547 Of Supreme ( 'ourt, when immediate effect to be given 548
ALPHABETICAL INDEX. 215

Section. Judicial record: Domestic, how proved 320 Of court in United States, how proved 320

Effect same as of court in Canal Zone, with exceptions 326

Foreign, how proved 321, 322

Effect in evidence 327, 328 Impeachment of 329

Jurisdiction

Action dismissed for want of, judgment for costs 527

Probate, what courts shall exercise 634-638 Land ; title by prescription 40 Landlord' s title, when presumed 349 ( 2

)

Language, official 12,83 (5-8) Lawyers:

Who may practice as 13 Qualification of applicants for admission to practice 14 Study required of applicants for admission to practice 15 Admission to practice 17 Oath required of 18 Admission to practice of applicants from other jurisdictions 19 Roll 20 Disbarment of 21 , 24, 25 Suspension of 21, 25 Authority to appear 26 May bind clients 27 Can not compromise without consent of clients 27 Unauthorized appearance 28 Fees—

I low fixed 29 Not to be taxed as costs except as provided 528

Costs allowed for attendance in the different courts 530-532

Retention of clients' funds 30 Must preserve secrets of clients 31 Substitution of 32 Their employment not required 33 For destitute litigants 34 Who can not act as .• 35 Their liens 36 Leading questions 353, 355 Legacy

Liable for payment of decedent' s debts 758 Fixing time for payment of 772-774

Sale of estate to pay. (See Executor, sale of estate.

)

Legitimacy of issue, when presumed 349 (3) , 350 (29) Libel; form of complaint 808 (27) License: To practice law 14, 17 To sell decedent's estate 751-755

Liens:Of lawyers 36 On real estate, not affected by decree establishing title 278 Created by judgments 467

c 7.—07 m 15
216 ALPHABETICAL INDEX.

Section. Limitations, statute of; form of answer 808 (35) Litigation ; when lawyer not required 33 Mandamus:

Directing judge to sign exceptions 536 In general 552, 554, 555 Mandate:

Issuance of order 233 Damages in such action 234

Service of order 235 Enforcement of order 236 Preliminary injunctions 240 Expediting proceedings 241 Manual delivery of personalty:

Plaintiff may tile notice claiming 260

Affidavit and obligation to be filed by plaintiff 261 Warrant of seizure 262, 263 When objection made to sufficiency of obligation 264 Delivery to defendant 265 Defendant's obligation and sureties 265, 266

Responsibility of officer and clerk 267 Claim of third person 268 Return of papers 269

Final judgment 270 Manufactory, noxious; form of complaint 808 (25) Maps; admissibility as evidence 336

Marriage, presumption of 350 (28

)

Married woman:

As party to action 108 Certain property exempt from execution against husband 504 May make will 649 Xot deprived of interest by husband's will 649

(See Abatement.)

Marshal, fees of -- 812 Material allegations, only need be proved 312 Memorandum, may be referred to by witness 354 Minors: Adoption and custody of

How child may be adopted 794 Adoption by stepfather 795 Order of court, issuance of 796

Effect of order 797 When child is illegitimate 798 When child is vagrant, incorrigible, etc 799 When parents are separated or divorced 800, 801 Guardian for. (See Guardians of minors; Guardians ad litem.) Minute book. (See Docket of Circuit Court.) Mistake:

Relief from judgment or order taken on account of L06 Judgments obtained through, may be reversed by Circuit Court 141-145 Money:

Paid into court, custody of 403 Payment on judgment in United States currency 462
ALPHABETICAL INDEX. 217

Mortgage: Section. Debt due to decedent's estate 736 Debt due from decedent's estate 737 Foreclosure of. (See Foreclosure of mortgage.)

Mother, when natural guardian 588 Movable property, attachment of 444

Natural right, construction in favor of 311 Ne exeat: When writ may issue 281

In favor of eoobligors or codebtors 282 Issuance by clerk 283 Where returnable 284 When judge absent 285

Bill or petition —affidavit—bond of plaintiff 286 Summons for defendant—bond of defendant—temporary departure no

breach 287 Surrender of defendant by surety 288 Proceedings on return of writ 289 Quashing or setting aside writ 290

Negative allegation, when must be proved 314 New trial: May be granted by Circuit Court 138 Application for 139

Effect of granting 140 When may be ordered by Supreme Court 533, 534 May be ordered before another judge 541 Procedure upon 542

Nonresident: Guardian of 608 Settlement of estate of decedent 636, 766

Nonsuit, in district court 52, 54 Notary public: Fees of 815

(See Depositions.) Nuisance. (See Manufactory, noxious, etc.) Number, singular and plural 1 Oath:

Includes 1 Court may administer 11 Required of lawyers 18

( )f referees 130 For affidavit, who may administer 365-367 Of witness giving deposition 385 Fees for administering. (See Fees.

)

Object, may be viewed by court 348

Objection, when defendant deemed to have waived 86

Offer:

( )f compromise, not admissible as evidence 362 Unaccepted, equivalent to tender 363

Office, usurpation of. (See Usurpation of office or franchise.

Officer: Court may control conduct of 11 Misbehavior of 243 (2) When can not testify 398 (6)
218 ALPHABETICAL INDEX.

Section. Official documents, acts, and proceedings, proof of 330 Opinion of Supreme Court, copy certified to court below 545

Oral testimony 396

Order:Court may preserve .. 11

( )f trial in Circuit Court 125 Original entries, what constitute :'>4.r

i Orphan asylum:

1 1 » > \v child may he withdrawn from 794 When child may be committed to 799-801 Ownership, when presumed 350 (10-11

)

Panamanian law in regard to disinheritance 782 Part of acts, etc., given in evidence; remainder shall be available to opposite

party 301

Parties to actions: General provisions 107 Married woman as party 108

Infants, spendthrifts, and persons of unsound mind 109 How gurdian ad litem appointed 110 Numerous parties Ill Death of party -. 112 Interpleading may be required of conflicting claimants 113 Intervention 114 Necessary parties may 1 >e < >rdered brought in 115

Partition

No abatement in suits 162, 163 Who may bring action 192 Where action must be brought 193 Complaint 194 Order 1 95 Duty of commissioners 196 Of more than one tract 197 When estate can not be divided without inconvenience 198 Report of commissioners 199 Action upon c< immissioners' report 200

Distribution of proceeds of sale 201 Accounting for rents and profits 202

Costs and expenses, how taxed 203 Fees of commissioners 204

Final judgment, its record and effect 205 Guardian may represent ward 206 Paramount rights and amicable partition not affected 207 Action of guardian in partition of ward's estate 602 Of decedent's estate already assigned 791-793

Partnership:

Presumption of 350 (27) Executor may examine books and property of 699, 700 Pauper, may be authorized to sue 819

Pedigree, evidence concerning 299, 315 (13) Perpetuation of testimony. (See Depositions.) Person, includes 1
ALPHABETICAL INDEX. 219

Personalty: Section. Attachment of 444, 447-449 Judgment for possession or value of 462

First chargeable for debts against decedent 7-">H Manual delivery of. (See Manual delivery of personalty.)

Petition: To establish title to real estate 272, 273

(See Complaint.)

Pleadings:

Definition 1 Allowed in Circuit Court. 82 Language and form 83 (5) Translation '. 83 (6) A nthentication 95

C !< mstruction of allegations 99 What may be stricken out 100

Specifications may be required 101 Variance between allegation and proof 102 Amendments, in general 103 When name of defendant unknown 104 Forms 808 Not in accordance with given forms m 808 Form of general heading . 808 ( 1

)

Possession, adverse. (See Prescription.)

Postponement of trial 123

Prescription

To what does not apply 37 Limitations prescribed elsewhere in Code 38 Period of, as to real estate 39

Title to land by 40 Exceptions in case of disability 41 As to civil actions other than for recovery of real property 42 As to relief not provided for 43 Rights saved on account of disability 44 When action deemed commenced 45 As to absent persons 48 Action barred where cause of action arose 47 Rights saved in case of reversal or failure otherwise than upon merits. ... 48 Renewal of right of action 49 Presumptions:

Conclusive 349 Disputable 350

Priest, when can not testify 398 (5) Prima facie evidence, definition 298 Printed form, controlled by written portion of instrument 308 Probate proceedings:

Circuit courts shall have jurisdiction 634 Where resident's estate settled 635 Where nonresident's estate settled 636 Court once taking, to retain jurisdiction 637 When jurisdiction may be contested 638
220 ALPHABETICAL INDEX.

Probate proceedings—Continued. Section. Records of proceedings and their copies 639, 640 When clerk may sign instruments 641 Additional duties of clerk in absence of judge 642 Proceedings when judge disqualified 643

Fees and account thereof 644 Warrants and process may be issued 645 Orders may be enforced by commitment 646

Depositions may be received 647

Costs 648

(See Wills; Executor; Escheats; Distribution of decedent's estate; Fraudulent conveyance of decedent's estate; Minors, adoption and custody of; Guardians; Trusts and trustees.

)

Proceedings, official, how proved 330, 332

Process

Definition 1 General provisions 5 Not in accordance with given forms - 808 Fees for service of <s 1 - Prohibition: Issuance of judgment and order 237 Service of judgment and order 238 Enforcement of order 239 Preliminary injunctions 240 Expediting proceedings 241 By Supreme Court 553-555

Prosecuting attorney: Or assistant, can not act as lawyer 35 May sue to establish title to real estate 272

Public writings, when may be used as evidence 316

Publicity of proceedings and records 10, 464

Questions, leading 353, 355 Real estate:

I >efinition 469 Time of commencing action for recovery 30 Establishment of title

Power of Circuit Courts 271 Who may sue ,- 272

Petition 273 Summons 274

Clerk's docket 275 Publication of "Land title notice " 275 Demurrer, answer 276 Further procedure -< < Decree not to affect liens 278 Reopening decree, subsequent action 270 Representatives may act 280

( !< instructive notice of action 416

I nstruments of conveyance, how proved 347 Attachment 445 Acquired after making of will, how affected 650 Whole interest of testator to pass by will 651 Wills devising, where recorded 659

Foreclosure of mortgage. (See Foreclosure of mortgage on real estate.)
ALPHABETICAL INDEX. 221

Real estate—Continued. section. Partition. (See Partition.) Sale of realty of decedent. (See Executor, sale of estate. Receiver: Who may appoint 184 When may he appoointed 185

< Jeneral powers 186 Of corporation 185 (1), 187, 224, 225

Obligation for damages on appointment 188 Oath and obligation required 189 Investment of funds 1 90 Termination of receivership 191 Appointed under execution 52 2-524 Record of private writing, how proved 331 Records

Shall be public 10, 464

Original, not to be removed from office 346

(#ee Judicial record; Official documents, etc.) Referee: May be agreed upon or appointed 1 28 Commission to 129 Oath of 130

Trial before 131 Report of 132 Hearing upon return 133 In case of execution returned unsatisfied 516-519 Fees of, how taxed 532

Registrar of land titles: Clerk of Circuit Court shall act as 399

Wills devising real estate to be recorded in office of 659 Relevancy of evidence 313

Relief: What may be granted plaintiff in Circuit Courts 119 From judgment or order taken on account of mistake, etc 106 Renewal of right of action 49 Repeal of codes, etc. , conflicting with this Code 820 Reply of plaintiff to new matter in answer 97

Representative, his death shall not cause action to abate 159 Reputation: As to credibility of witness 315 (16) As to facts of general interest, etc 315 (1 1-13) Residuary legatee, when executor 679 Reversal of judgment: Not allowed on technical grounds 540

(See Supreme Court, appellate jurisdiction.)

Roll, lawyers' 20

Rules:Of evidence shall be uniform 292 Of Supreme and Circuit Courts 6

Sale:Under execution. (See Execution.

)

Of real estate under foreclosure proceedings 255-257 Of trust estate 630

(See Guardian; Executor.)
222 ALPHABETICAL INDEX.

Section. Sanity of testator, how proved 668 Secondary evidence i »f contents of writing 337, 338

Several judgments 118

Sickness, last; payment of expenses 764 Spanish language, its use in court 12, 83 (5-8)

Special proceedings:

1 '( iwer of judge in 559 Appeals in 802-807

Specifications, may be required in pleadings • 101

Specific performance, form of complaint 808 (30) Spendthrifts, their appearance in action 109 Stamped paper, not required in proceedings 7 Stenographer, may be employed in taking depositions 379

Stepfather, adoption of child by 795 Stockholders of corporations, abatement of actions against 169 Subpoena:

Issuance by district judge 61 Definition 417

Issuance, in general 418

Service • 419, 420 Disobedience 423-425 Forms 808 (38-39)

Substitution of lawyers 32 Summons:

From district court 50

Shall be issued on filing of complaint 405 For defendants residing in different circuits 406 What must c< mtain 407 When lost or not served 408 By whom served 409, 410 To whom delivered 409, 411 Return of 409 What equivalent to service 412

Service upon absent or unknown defendants 413, 414 Proof of service 415

Service in actions affecting title to real estate 416 Form 808 (40-41

)

Sundays, excluded in computing time 4 Supplemental complaint or answer 98 Supreme Court: Appellate jurisdiction

General procedure 533 Hearings confined to matters of law, with exeepti< >ns 534 Procedure on appeal from special proceedings 535 Compelling judge to sign exceptions 536

Dismissal of bill of exceptions 537, 539

Correction of incomplete record 538 Judgment not to be reversed on technical grounds 540

Trial may V>e ordered before another judge , 541 Procedure upon new trial 542

Certificate of judgment remitted to Circuit Court 543, 544 Copy of opinion certified to court below 545 Excepting party not entitled to reversal as to another 546

Interest on judgment affirmed 547
ALPHABETICAL INDEX. 223

Supreme Court—Continued. Section. Appellate jurisdiction—Continned.

Extraordinary orders, when to be enforced by lower court 548

Bills of exceptions may be printed 549

< )riginal jurisdiction

Procedure in cases of default caused by fraud, etc 550 In certiorari 551 , 554, 555 Mandamus 552, 554, 555

Prohibition 553, 554, 555 Preliminary injunctions 555 Expediting proceedings 555 Quo warranto 556

Surety

Includes 1 May be party to accounting of executor 718 Of decedent, may present claim to executor 775

(See Bond.)

Survivals of persons dying in same calamity, presumption as to 350 (37) Suspension of lawyers: Causes for 22 Continuance of trial 22

Effect of 22 Proceedings upon 23

Institution and cost of proceedings 24 Hearing of charges 25 Tense, present, includes future 1 Terms of writing, presumed to be in their ordinary sense 307

Territory of the United States, includes 1 Testimony:

In district courts 56

{See Evidence; Depositions: Witness.)

Third person: Right of, against officer in case of attachment 458 Claim of, on property levied on 507 Time:

How computed 4 Of commencing actions

Against corporations for forfeiture of charter 227 Against officer to be ousted 227 For recovery of estate sold by guardian 61^

(See Prescription; Abatement.)

For presenting claims against decedent's estate 722, 723 When this Code becomes effective 820

Title to land by prescription 40

Translation '. 12,83 (6-8) Trespass on land, form of complaint as to 808 (23)

Trial:In district court 55, 56

I n Circuit Court

Postponement 123 Adjournment 124 Order 125 New. (See New trial.) Before referee 131
224 ALPHABETICAL INDEX.

Trusts and trustees: Section. Death of trustee shall not cause abatement 160 Proceedings when trustee necessary under will 618 Proceedings upon death, resignation, etc., of trustee 619 Powers and bond of new trustee 620

Trustee appointed abroad 621, 622 Removal of trustee 623 Resignation of trustee 624 Executor of former trustee not bound to accept trust 625 Bond and duties of trustee 626, 628, 629 Inventory and appraisement 627

Sale of trust estate 630 General jurisdiction over trusts 631

( 'onveyance of lands held in trust by decedent in his lifetime 755 Appeal from settlement of trustee 803, 804 United States: Laws, admissible as evidence. 317-319 Currency, judgment made payable in 462 Payment of debts due from decedents' estates 764 Unsound mind:

Includes 1 Person of, appearance in action 109 Witness disqualified by 398 (1) Transactions with persons of, when can not be testified to 398 (7) {See Guardians of persons of unsound mind; Guardians ad litem.)

Usage, evidence of, to explain true character of instrument 315 (12) Usurpation of office or franchise: Action against a person or association of persons not incorporated 208

Action against a corporation 209 May be prosecuted by public officers 210, 211 May be prosecuted by individual 212 Complaint 213 Who may be made defendants 214 Where actions may be brought 215 Application for leave to commence action and notice to defendant .' 216 Expediting proceedings 217 Judgment." 213, 218 Judgment where director of corporation illegally elected 219 Rights of person entitled to office : 220 Knforcement of judgment 221 Action for damages against person ousted 222 Judgment when corporation has forfeited its rights 223 Appointment of receiver when corporation dissolved 224

1 low receiver placed in possession 225 Judgment against corporation for costs 226

Limitations as to commencing actions 227 Concurrent jurisdiction of Supreme Court 556

Vacation, certain orders may be made in 241 Vagrant children, adoption of 799 Variance 102 Venue of actions 393 View of object by court 348 Widow, allowance to. during settlement of decedent's estate 719
ALPHABETICAL INDEX. 225

Wife: Section. In what cases can not testify 398 (3) Not deprived of interest by will 649

Wills:Who may make 649 Who can not be deprived of interest by 649 Real estate acquired afterwards may pass by will 650 Whole interest to pass 651 Executed in accordance with law now in effect 652

Requisites of 653 Custody of 654 Who are competent witnesses 655 Subsequent incompetency immaterial 656 When devise or legacy to witness void 657 Revocation of 658 Devising real estate, where recorded 659 Allowance by court 660 Custodian to deliver 661-664 Executor to present will 662, 663 Court to appoint hearing on 665 How proved when not attested 666 When witness does not remember signing 667 When witness does not reside in Canal Zone 668 Grounds for disallowing 669 Made out of Canal Zone, may be proved in Zone 670 Made within Canal Zone by alien, may be proved in Zone 671 Proved outside of Canal Zone, allowance of 672-675 Share of child born after making 784, 786 Share of child omitted from 785, 786 Appeal in case of allowance or disallowance 805

(See Executor.)

Witness: Court may compel attendance 11 Subpoenaed by district judge 61 Refusal to be sworn or to testify 242 Evidence as to credibility 315 (16) May refer to memorandum 354 Impeachment 358, 359 Evidence as to good character 360

Oral testimony 396

Qualification 397 Incompetency 398 May be compelled to testify anywhere in Canal Zone 421 Person present in court may be compelled to testify 422 Compelling attendance 425 When imprisoned, how may be examined 426 To signature of testator. (See Wills.) Fees allowed 817

(See Subpoena; Evidence; Depositions.)

Words, interpretation of: In Code 1 In instrument of writing 307

Writ, definition 1
226 ALPHABETICAL INDEX.

Writing: Section. Includes 1 What agreements must be in 351 Contents of, how proved 302

Interpretation of 304 When may be used as evidence 315 (14) Copy of, how certified for use as evidence 335 Proof of contents when lost 337 Proof of contents when in possession of adverse party 338 When need not be offered in evidence 339 Proof of execution 340-342 Of deceased person, prima facie evidence 344 Containing alteration, how used as evidence 352 When shown to witness may be inspected by opposite party 361 Contained in instrument, controls printed portion 308 o



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