202 U.S. Argument for Defendant in Error. principles by the Code Napoleon. For example, article 1902 of the Civil Code, which directly pertains to this discussion, reads: "He who, by an act or omission, causes damage to another, fault (culpa) or negligence intervening, shall be obliged to repair the damage so done," while the corresponding articles of the Code Napoleon read as follows: "Art. 1382. Every act whatever of man which causes damage to another obligates him by whose fault it has happened to make reparation. "Art. 1383. Every person is responsible for the damage which he causes not only by his act, but also by his negligence or by his imprudence." Similar provisions are also to be found in the Civil Codes of Belgium, articles 1382 and 1383; Netherlands, articles 1401 and 1402; Austria, article 1295; Switzerland, canton of Vand, articles 1037 and 1038; Chile, article 2314; Guatemala, articles 2276 and 2277; Uruguay, article 1280; Argentina, article 1109. Wherever the civil law system prevails practically identical provisions will be found, for all civil law codes find a common origin in the Law of the Twelve Tables and the Justinian Codes. Upon the articles above mentioned many commentators have shed light both as to their scope and meaning. See Don Leon Bonel y Sanchez, Codigo Civil Español, vol. IV, p. 894 et seq. Toullier, Le Droit Civil Français, vol. 6, p. 94. The administration of the civil law in Spain and her dependencies in regard to actions for torts, did not at the time of the institution of this suit greatly differ from that administered in other civil law countries, and apart from methods of procedure did not greatly differ from that in vogue in common law countries. In the administration of civil law generally there is a wellrecognized distinction between the word "délit" (a wrong) when used in connection with civil and as used in criminal complaints. Aubry and Rau, under the title "Des Délits," Cours de Droit Civil Français, vol. 4, § § 443, 445. See also Laurent, Cours Elémentaire de Droit Civil, vol. 3, p. 207. See Argument for Defendant in Error. 202 U.S. also Decision of March 23, 1882, vol. 48, Jurisp. Civil, p. 394; Decision of June 14, 1886, vol. 60, Jurisp. Civil, p. 120; Deccionario &c., Alcubella, vol. 1, p. 122. Admitting that the Spanish law in force in Porto Rico at the time of the levying of the attachment made ample provision in cases of wrongful attachment for the assessment of damages in the attachment proceedings itself, articles 1409-1415 of the Code of Civil Procedure, and that in case of dispute as to the fact of damages or the amount thereof, specifically provided for the method of their ascertainment by articles 927 et seq. of the same Code, it is submitted that these articles of the Code of Civil Procedure have no bearing upon the present case for two reasons: 1. Because the plaintiff in error, Fernandez, was not a party plaintiff in the attachment proceeding. 2. Because the United States Provisional Court for Porto Rico, in which the attachment proceedings were had, was without judicial power or authority to adjudicate in conformity with the provisions of the Spanish Code of Civil Procedure, damages against Fernandez. The United States Provisional Court for Porto Rico was established by General Orders, No. 88. By article II the judiciary power of said Provisional Court was extended "to all cases which would be properly cognizable by the Circuit or District Courts of the United States under the Constitution, and to all common law offenses within the restrictions hereinafter specified.' Article IV thereof is as follows: "The decisions of said court shall follow the principles of common law and equity as established by the courts of the United States, and its procedure, rules and records shall conform as nearly as practicable to those reserved and kept in said Federal courts." Article V declares that "the jury may be introduced or dispensed with in any particular case, in the discretion of the court;" and article VI declares that "the judges of the Provisional Court shall be clothed with the powers vested in the judges of the Circuit or District Courts of the United States." Both Aguerria and Fernandez were subjects of Spain-the for 202 U.S. Argument for Defendant in Error. mer a citizen of Spain, the latter seemingly a resident of Porto Rico. Whatever might have been the regular procedure, so far as the recovery of damages is concerned, had Fernandez, acting for his principal, Aguerria, resorted to the proper insular court in connection with the attachment proceedings against Perez, and however Perez might then have been bound by the forms and methods of procedure provided by the articles of the Code above quoted governing the assessment of costs and damages, it is certain that the methods of procedure so provided neither helped nor hindered the parties to the action in the Provisional Court, for in the very authority which established that court it was expressly declared that "its procedure, rules, and records shall conform as nearly as practicable to those observed and kept in said Federal courts." It is certain that there is no procedure known to the Circuit and District Courts of the United States by which Federal judges sitting therein are required or authorized to determine and assess damages alleged to have been suffered by reason of the wrongful suing out of an attachment, for an attachment proceeding is not a case of equity nor of admiralty nor maritime jurisdiction, and section 648 of the Revised Statutes of the United States, which but restates a provision of the Judiciary Act of 1789, provides that the trial of issues of fact in the Circuit Courts shall be by jury except in cases of equity and of admiralty and maritime jurisdiction, and except as otherwise provided in proceedings in bankruptcy, and except the parties or their attorneys of record waive a jury. Section 649. By the act of April 12, 1900, the Provisional Court above referred to was abolished, and the District Court of the United States for the District of Porto Rico was declared to be its successor and authorized to take jurisdiction of all cases and proceedings pending therein. Section VIII of said act provides that the laws and ordinances of Porto Rico in force shall continue except as "altered or modified by military orders and decrees in force when this act shall take effect and so far as the same are not inconsistent or in conflict with the statutory laws of the United States not locally inapplicable. The local law and practice cannot be recognized as a rule of procedure in the courts of the United States where its adoption would be repugnant to the Federal Constitution or impair the effect of any Federal legislation. Virginia Coupon Cases, 114 U. S. 303; Luxton v. North River Bridge Co., 147 U. S. 338. Whenever Congress has legislated upon any matter of practice, and prescribed a rule for the government of its own courts, it is to that extent exclusive of the state legislation on the same subject. Southern Pac. Co. v. Denton, 146 U. S. 209. See also Shepard v. Adams, 168 U. S. 625. If it be true that the Porto Rican procedure required a defendant in attachment proceedings to demand the liquidation of his damages by the trial judge in that action on pain of losing all right to indemnification, it is nevertheless true that section 914, Revised Statutes of the United States, does not require any such procedure to be followed in the Federal court for Porto Rico, for to do so would be to deny the right of trial by jury except in certain cases. The Law of Civil Procedure as adopted for Porto Rico in 1885, $$ 939, 940, corresponds with the Law of Civil Procedure of Spain and with §§ 1409 and 1413 in force in Porto Rico at the time of the attachment. Construing these laws Navarro in his Commentaries states that the person concerned shall "institute the ordinary suit" (p. 253). See also Decisions of November 26, 1857 and April 7, 1868; Derecho Procesal de España, Pozo, vol. 2, p. 188; Decision of July 6, 1885, 58 Jurisp. Civil, p. 265; Decision of July 21, 1893, 73 Jurisp. Civil, p. 954. MR. JUSTICE DAY, after making the foregoing statement, delivered the opinion of the court. This case was argued orally and upon briefs at the October term, 1903, of this court. After the case had been argued and submitted, on December 5, 1904, an order was entered as follows: "No. 6. José Antonio Fernandez y Perez, Plaintiff in Error, v. José Perez y Fernandez. Counsel are requested to submit additional briefs on these points: "1. Can this court, on the record of this case, properly consider and determine the contention of the plaintiff in error that a civil action like the present one was, at the date of the attachment and the commencement of this action, unknown to and unauthorized by the laws and jurisprudence of Porto Rico? "2. Was a civil action like the present one known to the laws and jurisprudence of Porto Rico at the time the attachment in question was sued out? "3. Under the law of civil procedure as existing in Porto Rico at the time of the attachment proceeding complained of, could the damages herein claimed have been allowed or assessed in that proceeding upon the dissolution or discharge of the attachment? If so, was that mode exclusive of every other for ascertaining such damages? Our views in this case will be practically in answer to these questions. The case affords a striking illustration of the difficulty of undertaking to establish a common law court and system of jurisprudence in a country hitherto governed by codes having their origin in the civil law, where the bar and the people know little of any other system of jurisprudence. The action in this case was begun and tried upon pleadings and under principles which are controlling in a State following the common law, having its origin in England, and the case was submitted to the jury upon general principles governing such actions for the recovery of damages for the seizure of property upon writs of attachment issued maliciously and without probable cause. The action proceeded in all respects in form and substance as it would had it been begun and prosecuted in a common law State. Cases which have come to this court from the Philippines and Porto Rico, where we have had occasion to consider the |