Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 5, 1905
Minister Bowen to the Secretary of State.
Caracas, Venezuela, August 7, 1904.
Sir: I have the honor to inclose herewith copies of the cablegrams that have passed between Washington and this legation since the last mail, copies of the law papers handed to me by the manager of the Asphalt Company, and copies of my correspondence with the foreign office here in regard to the controversy in which the said company is engaged with the Venezuelan Government.
The manager of the company has informed me that the asphalt lake was seized by Carner and about 100 Venezuelan soldiers; that the company’s safe was blown open; that the American superintendent at the lake was made a prisoner, but was finally released; that two Venezuelan gunboats are at hand to prevent the lake from being retaken; that the company’s British workmen are forced at the point of the bayonet to remain at the lake and to work; and that Carner has engaged a ship to carry asphalt to the rivals of the company in the United States.
President Castro has now reached a point where he will only yield to force. All of my colleagues here agree that never since he has been in power has the situation been so bad as it is now.
* * * Three days ago he told a friend of mine that within six months he will dispossess the French Cable Company of its property here, and that he will make the foreigners resident in Venezuela pay all the money he needs to satisfy the awards of the commissions that recently sat here. He is most bitter against me, and charges me with having opposed him constantly since my return here last January. * * * The prevailing opinion in the corps is that the Government of the United States will be called upon after the November elections to make President Castro fulfill his obligations to foreigners, and to conduct his government on civilized principles. I have endeavored in my correspondence with his foreign office to leave our controversy with him where it may be resumed easily whenever you desire.
I am, etc.,
Minister Bowen to the Minister for Foreign Affairs.
Caracas, Venezuela, July 29, 1904.
Mr. Minister: If it is true that the Venezuelan Government demanded 50,000,000 bolivars of the New York and Bermudez Company; that when payment of that sum was refused by the said company the Venezuelan Government induced by ex parte proceedings the federal court and court of cassation to place an embargo on the property of the said company; and that a custodian has been appointed and sent to take possession of the said property of the said company, I hereby, in conformity with instructions I have just received from Washington, have the honor the inform you that the Government of the United States of America earnestly protests against all said actions and proceedings.
I gladly avail myself, etc.,
The Minister for Foreign Affairs to Minister Bowen.
Mr. Minister: With due attention the Federal Executive has considered your excellency’s note dated July 29 last in regard to a legal matter in which the New York and Bermudez Company is interested.
As the protest which your excellency makes in the note in question is founded on facts of a hypothetical nature and present as conclusions premises which are of the same character, the government in reply can not attribute to it any foundation except that which is set forth in the communication which your excellency has been pleased to send to me.
If on the the one hand it has been a matter of surprise in view of the cordial relations existing between the two nations that on the present occasion a previous explanation was not given, the Venezuelan Government, on the other hand, could not but be surprised that to a sphere so foreign as that of diplomacy a matter should be carried that is within the exclusive jurisdiction of competent courts, in which it is fundamentally permissible to state the interested parties have the most complete liberty of causing to be enforced whatever means of defense the municipal law of this nation sanctions.
I gladly, etc.,
Minister Bowen to the Minister for Foreign Affairs.
Caracas, Venezuela, August 3, 1904.
Mr. Minister: In conformity with the instructions which I communicated orally to your excellency yesterday afternoon, I now have the honor to protest formally and in writing against the summary proceedings of the Venezuelan Government in dispossessing, directly in its own interests, the New York and Bermudez Company of its property without giving to the said company any hearing whatsoever and to inform you that the Government of the United States of America will regard with grave concern any illegal attempt to deprive the said company of its property and rights.
I gladly avail myself,
Minister Bowen to the Minister for Foreign Affairs.
Caracas, Venezuela, August 3, 1904.
Mr. Minister: In answer to your excellency’s note of yesterday’s date, which was brought to this legation late this afternoon, I have the honor to confirm your assertion that the protest I sent to your excellency on the 29th of July last was hypothetical in nature. Doubtless it was made so because the news of the summary action of the Venezuelan Government in dispossessing the New York and Bermudez Company seemed incredible to my government and also because it was believed that even if the report were true a hypothetical protest would induce the Government of Venezuela to make a plain and frank declaration of its willingness to annul the decree of dispossession or to grant a hearing to the New York and Bermudez Company before enforcing the decree. By pursuing that course the Venezuelan Government would have given to the Government at Washington pleasing proof of the significance which it attaches to the phrase “cordial relations,” courteously employed in your excellency’s note.
As no such declaration as that was made by the Government of Venezuela within the time an answer was expected the American Government instructed me to send to your excellency a formal protest, and I did so this morning.
The proceedings dispossessing the American company of its property having been ex parte constitute a distinct denial of justice, and consequently the Government of the United States of America may very properly take such steps as may be requisite to afford the American company whatever protection it should have.
I gladly avail, etc.,
The Minister for Foreign Affairs to Minister Bowen.
Mr. Minister: The note of the 3d instant has been received in this office in which your excellency undertakes to protest against the summary proceeding to which in your opinion the New York and Bermudez Company has been subjected by the Government of Venezuela with the object in its own interest of dispossessing it of its property without giving a hearing to the said company.
I avail myself of this opportunity to inform your excellency that the views which you express in said note can not be accepted by the Venezuelan Government, inasmuch as what happened in the case instituted against the said company is altogether consonant with the rules of procedure perfectly well known and applied with absolute rectitude by the court which was called upon to take cognizance of the matter.
I renew, etc.,
The Minister for Foreign Affairs to Minister Bowen.
Mr. Minister: I have seen in your excellency’s note of the 3d instant that the American legation is not yet in possession of the information needed to duly understand the suit begun by the Venezuelan Government against the New York and Bermudez Company.
Indeed your excellency speaks in it of a summary proceeding instituted against the company in reference to and the dispossessing of certain property belonging to it. That is not the case.
In conformity with article 1137 of the civil code the attorney-general of the nation, in its name, has requested the federal and cassation court to render a decision on the contract made between the Government of the Republic and Mr. H. R. Hamilton, of which contract the said company is the cessionary.
The reasons alleged as the bases of the action are expressed with perfect clearness in the libel, which was published in a local newspaper, which I have the honor to send to you herewith.
The term dispossession, which your excellency applies to the decree of sequestration of an asphalt mine, of which alone the company is in possession, can not possibly be accepted, because said measure is perfectly consonant with our civil code, which in turn is in harmony with the most advanced principles of universal legislation. The measure is provided for in title 3, Section I, book 2 of the code of civil procedure, is of a precautionary and transitory nature, and when it is put into execution the law orders that a hearing be opened during which it is permitted to the party whose interests are adversely affected to justify his opposition and to obtain an annulment. Moreover, even in case the provisional decision be confirmed, not even then can it be claimed that there has been a dispossession, inasmuch as it does not establish irrevocable rights, which only an executed judgment can establish.
The procedure, being prescribed by law and having to be observed in these cases, it is not in the power of the President to annul the decree based on the petition of the representative of the state nor to make any declaration which might embarrass the free action of the courts, in view of the fact that to them alone is assigned the duty of deciding any petition which in respect to the question at issue the New York and Bermudez Company might make.
I deem it apposite also to observe that the New York and Bermudez Company could have prevented the execution of sequestration by making use of the relief accorded by article 369 of the code of civil procedure.a
From what I have herein set forth it is evident that notice to the company was not necessary in order that the sequestration should be instituted and concluded legally, and consequently the proceedings cannot be denominated ex parte. Therefore, as the court has not refused to hear the defendant and did not depart in the least from the rules of procedure which the law prescribes, it is not possible to speak of a denial of justice; and inasmuch as the case in question has clearly defined bounds within which it should be discussed the attention of the Federal Executive has been called to the final part of the note I am answering, in which mention is made of the measures which the Government of the United States might take to offer to the American company whatever protection it should have.
[Page 931]As such declarations are not acceptable, as they not only derogate from the good name of the state but involve a menace directed against its sovereignty and independence, I feel obliged to protest against them in the most formal manner.
As to the surprise which through me the Executive expressed in my note of the 2d instant, I am sure that the explanations which I am pleased to have set forth in this note will justify in your excellency’s mind the impression which the contents of the protest of the 29th of this last month caused him.
I gladly renew, etc.,
Minister Bowen to the Minister for Foreign Affairs.
Caracas, Venezuela, August 7, 1904.
Mr. Minister: Your excellency’s note of the 6th instant, containing a clear exposition of the law of Venezuela applicable to the controversy in regard to the property of the New York and Bermudez Company, unfortunately does not change the main fact in the case, and that is that the property of the company is no longer in its possession, but is in that of the Venezuelan soldiers and of a custodian appointed by the Venezuelan Government by virtue of a decree obtained, as your excellency states, by the attorney-general of Venezuela from a court that did not grant the company a hearing before issuing the decree, the object of which was to transfer the possession of the property from the company to the Venezuelan Government. The question as to whether or not the Government of Venezuela intends to retain permanent possession of the property does not alter the fact that the company was dispossessed of its property without a hearing and distinctly in the interest of the Venezuelan Government.
Such being the case my government could not refrain from concluding that there had been a denial of justice to the American company, that proper protection should be given to it, and that an earnest protest should be made to the Venezuelan Government.
As your excellency’s note upholds views quite contrary to those I have expressed, I shall send it, together with your excellency’s answer to the protest, by to-night’s post to Washington, where I am sure they will receive the attention they merit.
I gladly avail, etc.,
Mr. Wright to the Citizen President of the Federal and Cassation Court in his character as judge of First Instance.
I, Robert K. Wright, of full age, citizen of the United States of North America, residing in this capital, as managing director in Venezuela of the “New York and Bermudez Company,” in the name thereof, before you, with the utmost respect, show:
I contradict in all its parts and in the most decided and absolute manner, the action instituted by the citizen attorney-general of the nation in the name of the latter against the company which I represent, and I contradict it both with respect to the facts set out in the declaration, the greater part of which are not true, and with respect to the right which is professed to be deduced therefrom.
I base my contradiction on the following grounds:
- First. The contract to which the action refers, made by the National Executive of Venezuela, through the channel of the citizen minister of fomento, with Mr. Horace R. Hamilton, approved by the National Congress on the 6th of June, 1884, is not a contract of lease, as the plaintiff pretends, impelled thereto by his purpose of obtaining the sequestration for which he prayed in the final part of his declaration and to which case 7, article 373, of the code of civil procedure is confined. Neither did the contracting parties ever intend to make a lease when they executed that contract, nor has either of the contracting parties considered or held it to be a lease, nor can the stipulations of the said compact be adapted to the rules and consequences of a lease, either in form or in matter.
- Second. On carefully considering the said contract in the hypothesis that the omissions were true which the plaintiff attributes to the “New York and Bermudez Company,” as the cessionaire—which it is—of Hamilton, it is seen without difficulty and beyond a shadow of doubt, that the rights granted to Hamilton (rights which the plaintiff desires to convert into obligations) are all, except that of exploration, not only discretionary and consequently [Page 932] may be renounced by him and those claiming under him, but it is also doubtful and hypothetical, they being conditional, whether any of them except that of exploration can be exercised; and this is due to the very nature of things, for neither of the two contracting parties could affirm at the moment of making the contract that Hamilton would find exploitable natural products, and much less that on finding them it would be convenient or advantageous to him to exploit them.
- Third. The argument of the plaintiff, who says this interpretation is absurd and affirms that it adjudges all the advantages to one of the parties and imposes all the burdens on the other, has no value as against what has been said; and it has no value for three principal reasons, first, because that is not an interpretation, but the clear and simple expression of the clauses of the contract which prove it of themselves; second, because the plaintiff forms his opinion not from the moment of the making of the contract, as is obligatory, when the results thereof were perfectly uncertain for both of them, but from the present moment when the other party to the contract has by his labor derived advantages which were unknown before, the ownership of which is now being unjustly disputed with him, and, third, because it would not be the only instance of analogous concessions made by the nation.
- Fourth. The assertion that all the advantages would be to one party and to the other all the burdens would prove to be no truer in any case; but even if this were so, which has been denied, it is no reason for considering that the perfect juridical chain created by that compact has been vitiated by this circumstance. If one of the contracting parties derives greater profits from the transaction than the other, he owes it without doubt to his greater foresight and diligence when making the contract, to the greater extent of his labor and sacrifices in managing and exploiting the business, and to a situation which has been favored by that uncertainty to which the parties were subject when contracting; surely not one of these reasons and causes for advantage can prove to be censurable, even under the severest criticism.
- Fifth. Firstly, Hamilton, from whom the company derives, and afterwards the company have most carefully and perfectly executed not only the principal obligations entered into in that contract, but each and every of them, in strict compliance with articles 1077 and 1111 of the civil code in force at the date of the contract (concordant with 1104 and 1138 of the present code). That perfect execution of all its obligations is fully proved by the express official declaration of the Federal Executive power of Venezuela, as is seen principally in the resolution issued through the honorable channel of the ministry of fomento, department of territorial wealth, on the 23d day of July, 1900, relative to the use which the company could make of its rights acquired under the contract in question and to the company’s rights of preference in the denunciations of mines and wild lands; as is also seen from the certificate issued on the same date by the citizen minister of fomento, on the petition of the company represented by Mr. A. H. Carner (now receiver in the sequestration), which resolution and certificate were published in the Official Gazette No. 7986, of Wednesday, the 25th of July; and seen from many other official documents which will be duly produced, and as appears from the facts that have taken place.
- Sixth. In the hypothesis set up by the plaintiff the obligations left unexecuted by the company are those of canalizing one or more rivers and exploiting woods, resins, plants, and aromatic seeds, and other natural products, except the asphalt, which he affirms has been exploited; but as even in that hypothesis it is found that those works and exploitations, according to the contract, are not subject to any term for their commencement within the period of the said contract, and as from their nature those works and exploitations require time for their execution, they can not be considered obligations that are due and the execution of which is demandable until after the judicial authority should have fixed a term for them and that term should have elapsed (article 1118 of the civil code then in force, concordant with 1145 of the present code), this being a reason which of itself suffices for dismissing the action which has been instituted.
- Seventh. But with respect to those very works and exploitations the plaintiff considers the company to have omitted them no doubt, because finding them without a time limit he thought their performance demandable immediately after the signing of the contract (article 1118 of the civil code then in force, concordant with 1145 of the present code); but as all those suppositious obligations would be personal engendering personal actions, and the plaintiff says that twenty-one years have transpired since they accrued, the company formally pleads the limitation enacted by article 1909 of the civil code then in force and by article 1964 of the present civil code.
- Eighth. The suppositious obligation to canalize one or more rivers on which attention has been specially fixed, as it is the only pretext for the sequestration which has been decreed, never existed legally either for Hamilton or for the company; if it had existed it would be found that it was an alternative obligation to canalize one or more rivers or to construct a railroad, and that it was executed by the construction of the railroad that the company made and which has existed there for many years and is to-day under the decreed sequestration (articles 1122 and 1123 of the civil code then in force, agreeing with 1149 and 1150 of the present code), but even supposing that it had existed as a simple obligation it would be [Page 933] found that it had been executed as far as possible, and beyond that no obligation is conceived to extend.
- Ninth. On the other hand, the company most solemnly states that the asphalt lake and lands and other appurtenances which it holds in Guanoco, municipality of Union (Quariquen) district of Benitez, in the state of Bermudez, and which have been sequestered, do not belong to it by virtue of the so-called Hamilton contract, which is the subject-matter of this suit, but by virtue of the titles which were legally granted to it by the National Executive power of Venezuela on the 7th and 14th of December, 1888, both protocolized in the subaltern registration office of the district of Benitez (El Pilar) on the 11th day of December, 1890, the first protocol of the fourth quarter of that year, on folios 100, 101, and 102, under numbers 61 and 62; and although it is true that the remote occasion of those titles was the contract now under discussion, it is not less true that they also have their immediate juridicial causes which are proper and peculiar to them, these being titles which have never been discussed and are not susceptible of discussion in the present suit.
- Tenth. Furthermore, the implicit rescissory condition to which the action that has been instituted is confined, and to which article 1137 of the civil code, which has been cited, refers, has not such extensive effects as the plaintiff wishes to attribute to it in this case; the choice between the dissolution and the execution of a contract and the consequences of one action or another are not always subject to the free will of the moving party, and the company maintains, even in the supposition that all the facts alleged were true, which they are not, that the cause of action contained in the declaration of the action is contrary to law.
- Eleventh. The plaintiff says that the government, on making the concessions of the contract, proposed to foster the progress of the state of Bermudez by all the means which are developed by a great enterprise, and that the exploitation of the natural products of the state of Bermudez, other than asphalt, has remained stationary for upward of twenty years, and the government finds it impossible to activate it on account of its obligations toward the company. To demonstrate the groundlessness of these assertions it suffices to observe with respect to the first that neither Mr. Hamilton, when he made the contract, nor the company, when the government accepted it as cessionaire of the contract in 1884, counted on enormous capital, and far less could they furnish nourishment to illusions and purposes which are now said to have vanished; and with respect to the second, that the expression “natural products other than asphalt” is so vague and extensive that by saying too much it says nothing, and that if some natural products can be determined it is precisely by studying the infinity of mining concessions, sales of wild lands, and contracts of every kind which both the Federal Executive power and the local governments and authorities have been most liberally making for the state of Bermudez and’ its sections since the 15th of September, 1883, until now, as can be seen in the collections of their respective official gazettes, registration offices, and public archives.
The company for its guaranty and indemnity cites Mr. Horace R. Hamilton, now residing at Habana, Republic of Cuba, as grantee of the contract, the subject-matter of this suit. And as he is recognized as grantee in the declaration of the action I pray that the course of the suit may be suspended, in conformity with article 281 of the code of civil procedure.
And whereas the directorate and general office of the “New York and Bermudez Company” is situated in the city of Philadelphia, United States of North America, which is also set out in the action, and the company needs to put forward in the suit documents which are in that office, I now ask for the extraordinary term for putting in evidence, in conformity with article 284 of the code of civil procedure.
For all the reasons stated I pray that the action be dismissed, and the company expressly reserves its rights of action for the enormous loss and damage which it has suffered and continues to suffer through the illegal sequestration that has been decreed in the present suit of its asphalt lake and all its dependencies. I likewise pray that the plaintiff may be ordered to pay the costs. It is justice, etc.
Mr. Wright to the Citizen President of the Federal and Cassation Court in his character as Judge of First Instance.
I, Robert K. Wright, managing director in Venezuela of the “New York and Bermudez Company,” acting in the name of the latter, object, in the most formal and decided manner, to the sequestration asked for by the citizen attorney-general of the nation and decreed by the tribunal, without any notice whatsoever being given to the company, on the 21st day of July last, and I deny absolutely and entirely both the facts and the law adduced for the purpose of grounding the said sequestration.
[Page 934]I base my objection on the following reasons:
First. The entire contents of my writing presented to this tribunal on the 22d day of July last past, which contents I reproduce in their entirety, and ask that the same be read and taken as part of this answer. [Printed ante.]
Second. Even in the case, which is denied, that the contract to which the action relates could be held to be a lease the testimonial proof and the telegram put forward are not sufficient legal proof to give to the facts and omissions alleged a character of certainty.
Third. Even in the case, which is denied, that the said contract could be held to be a lease, and that the facts and omissions alleged to ground the sequestration were legally proved, I reproduce in their entirety numbers 8 and 9 of the answer to the action, which are as follows: “Eighth. The suppositious obligation to canalize one or more rivers, on which attention has been specially fixed, as it is the only pretext for the sequestration which has been decreed, never existed legally either for Hamilton or for the company; if it had existed it would be found that it was an alternative obligation to canalize one or more rivers or to construct a railroad, and that it was executed by the construction of the railroad that the company made, and which has existed there for many years and is to-day under the decreed sequestration (articles 1122 and 1123 of the civil code then in force, agreeing with 1149 and 1150 of the present code); but even supposing that it had existed as a simple obligation it would be found that it had been executed as far as possible, and beyond that no obligation is conceived to extend.
Ninth. On the other hand, the company most solemnly states that the asphalt lake and lands and other appurtenances which it holds in Guanoco, municipality Union (Guariquen), district Benitez, in the state of Bermudez, and which have been sequestered, do not belong to it by virtue of the so-called Hamilton contract, which is the subject-matter of this suit, but by virtue of the titles which were legally granted to it by the National Executive power of Venezuela on the 7th and 14th of December, 1888, both protocolized in the subaltern registration office of the district Benitez (El Pilar), on the 11th day of December, 1890, the first protocol of the fourth quarter of that year, on folios 100, 101, and 102 under numbers 61 and 62; and although it is true that the remote occasion of those titles was the contract now under discussion, it is not less true that they also have their immediate juridical causes, which are proper and peculiar to them; these being titles which have never been discussed, and are not susceptible of discussion in the present suit.”
The company can not leave without protest the fact that Mr. A. H. Carner, who is a notorious enemy of the company and hostile to its interests, has been appointed receiver.
For the reasons stated I pray that the decree of sequestration may be revoked, as justice demands, and I expressly reserve to the company its rights of action for the enormous loss and damage which it has been or may be made to suffer through the said sequestration.
decree of court.
Tribunal of First Instance,
Caracas, July 21, 1904.
Proceedings in the suit prosecuted by the Attorney-General of the nation against the New York and Bermudez Company, 1904.
In the declaration of his action the citizen attorney-general of the nation, grounding his application on the depositions of the witnesses Drs. Tomas C. Llamozas, German Timenez, and Manuel A. Ponce requested, in conformity with article 373 of the code of civil procedure, the sequestration of the mine which the defendant company exploits at a place called “Guanoco,” together with all the apparatus and accessories used in the exploitation, and the sequestration asked for is granted, as the tribunal finds that the extreme circumstances required by the law have been fully proved, and consequently the judge of first instance in civil mattters of the section of Cumana, in the state of Bermudez, is hereby commissioned to execute the same, and the proper dispatch shall be issued to him with the corresponding insertions. Mr. Ambrose H. Carner, at the indication of the citizen attorney-general of the nation, is for the purpose in question named receiver of the said mine and of all the apparatus and accessories of the exploitation by an order of like date herewith. Let Mr. Carner be cited to the end that in case he accept he should take the oath required by law. Let a separate volume be made of the proceedings for the sequestration. J. Y. Arnal. Juvenal Anzola, secretary.
To-day, the twenty-first of July, of the present year, one thousand nine hundred and four, the marshal, Manuel Leon, returned the writ of citation to Mr. A. H. Carner, signed by the said gentleman. It is added to these proceedings. Juvenal Anzola.
[Page 935]At the sitting held this twenty-second day of July of the present year, one thousand nine hundred and four, at 9 a.m., appeared Mr. A. H. Carner, who had been appointed receiver of the mines that the defendant company exploits in “Guanoco,” together with all the apparatus and accessories of the exploitation, and having been informed of the appointment and the relevant part of the proceedings relating to the charge of receiver having been read he stated that he accepted and swore to faithfully discharge the duties of the said office. It was read, and on being found to be in order they sign. J. Y. Arnal. A. H. Carner. Juvenal Anzola, secretary.
On the same date was issued and transmitted the dispatch ordered at the proceedings of the (21st) twenty-first day of the current month for the judge of first instance in civil matters of the section Cumana, in the state of Bermudez. Juvenal Anzola, secretary.
[Telegram.]
Dr. Lucio Baldo. [Private and urgent.]
I inform you on trustworthy data that the New York and Bermudez Company has not canalized any river or channel adjacent to Guanoco, nor has it exploited or exported any other natural product than asphalt. I thus answer your telegram dated 13th instant. D. and F. R. Velasquez.
Citizen parish judge of the department Libertador. I, F. Arroyo Parejo, attorney-general of the nation, acting in this character before you, with customary consideration, snow: For purposes which subserve rights I represent, I pray you to examine after the formalities required by law, the witnesses whom I shall bring forward, they being of full age and residents, on the following particulars:
- First. If they have been in the state of Bermudez, and know the exploitation which the New York and Bermudez Company has at the place called “Guanoco.”
- Second. If they know, and it is within their certain knowledge, that the aforesaid company has not canalized any of the rivers of the state of Bermudez, principally the channel of Guarapiche, as far as Maturin.
- Third. The witnesses must state the reasons for their statements.
Which being done, I pray you to return me the original proceedings. It is grace. Caracas, fourteenth of June, one thousand nine hundred and four. F. Arroyo Parejo.
Parish court, Caracas, fourteenth of June, one thousand nine hundred and four. Let the testimony be taken and the proceedings returned. Andres A. Albor, Juan C. Hurtado, secretary,
At the same sitting appeared a witness, who being sworn, said that his name was Tomas C. Llamozas; that he was of full age, a married man, an engineer, of this neighborhood, and competent to depose according to the law, with which he was made acquainted. The preceding writing was read to him, and on being questioned on the particulars therein contained he said to the first: “Yes, that appears officially;” to the second: “From Guanoco, where the asphalt mine the New York and Bermudez Company exploits is situated, to the port of Maturin the crossing is effected by means of bongos or canoes, which is more or less the vessel the company used for the dispatch of its business with that custom-house, and this was so because vessels of deeper draught could not do it, which evidently proves, as I see it, that that route by the said river Guarapiche is not canalized. Nor has any scientific canalization been done to any of those that I know in that region;” and to the third: It is already answered. The testimony terminated, it was read, and being found to be correct he signs. Andres A. Albor. Tomas C. Llamozas. Juan C. Hurtado, secretary.
Immediately thereafter appeared a witness, who, on being sworn, said his name was German Jimenez; that he was of full age, a married man, an engineer, of this neighborhood, and competent to depose according to the law, with which he was made acquainted. Interrogated regarding the particulars of the foregoing writing, which was read to him, he said to the first: “Yes, in October, one thousand nine hundred, I was at the asphalt mines which the New York and Bermudez Company exploits at Guanoco;” to the second: “In the channels that I visited, which are those that lead to the asphalt mine named, I saw no work of canalization. With respect to the Guarapiche channel I can not affirm anything, because I never have been on it;” and to the third: What I have deposed I know, because I have seen it personally. The testimony terminated, it was read, and being found correct he signs. Andres A. Albor. G. Jimenez. Juan C. Hurtado, secretary.
It is returned on two folios. Hurtado.
Citizen parish judge: I, F. Arroyo Parejo, attorney-general of the nation, acting in that character before you, show:
For purposes which subserve rights I represent, I pray you to examine, after oath and other formalities required by law, the witness whom I shall put forward regarding the following particulars:
[Page 936]Is it true that he has been at the place called “Guanoco,” jurisdiction of the state of Bermudez, where the New York and Bermudez Company exploits an asphalt deposit? Second: If he knows, and it is within his knowledge, that the aforenamed company has not canalized the river Guarapiche principally in its extent from Caño Colorado to Maturin. Which being done, I pray that the original proceedings be returned to me. It is grace. Caracas, sixteenth, of June, one thousand nine hundred and four. F. Arroyo Parejo.
Parish court. Caracas, sixteenth of June, one thousand nine hundred and four. 93d and 46th.
Received. Let the testimony be taken and the proceedings returned. Andres A. Albor. Juan C. Hurtado, secretary.
On the same date appeared a witness, who, having been sworn, said that he was called Dr. Manuel Antonio Ponce; that he was of full age, a married man, a lawyer, of this domicile, and competent to depose according to law, which through his profession he knows. The foregoing writing was read to him, and, interrogated on the particulars which it contains, he said to the first: “I have been at ‘Guanoco’ on different occasions as lawyer of the New York and Bermudez Company in the suit in which it was engaged with Messrs. Warner and Quinlan regarding possession of the mine ‘Felicidad,’ and on those different occasions I remained at the mines sometimes days and other times as long as two or three months;” and to the second: As the greater number of times I went to “Guanoco.” I made the voyage in the company’s steamer going to Trinidad to the channels I can affirm that that navigation is performed owing to their natural width and depth and in some, principally that which gives admission to the company’s wharf, by favor of the tide. I can especially say that from a certain point of Caño Colorado the steamship can not continue the journey to the said port, so that for it to be dispatched at the custom-house it is obliged to anchor at this point and dispatch an employee in a boat, which takes five to six hours to go and return. With regard to the river Guarapiche, there is no doubt that it is not canalized either, for the said river from the port of Caño Colorado, which is almost at its mouth, up to Maturin is navigated in lighters by means of poles. The testimony terminated, it was read, and being found to be correct he signs. Andres A. Albor. Manuel A. Ponce. The secretary, Juan C. Hurtado.
It is returned.
code of civil procedure.
- Art. 281. In cases of indemnity and guaranty the plaintiff, as well as the defendant, may ask, at the moment of answering, for the citation of the person liable to indemnify or guarantee, and the judge shall order the same to be done immediately; but the course of the cause shall not be suspended except when there is authentic proof either directly of the obligation to indemnify or guarantee, or of the act from which such obligation arises as of right.
- Art. 284. The party who requests that an extraordinary term be granted him for the taking of evidence in places which are situated at more than two thousand kilometers from that at which the suit is being carried on, shall necessarily make his request at the moment of answering the action, and put forward the proofs or securities on which the petition is based. The opposite party shall state whether he objects or not to the granting of the request, and the tribunal shall restrict itself to declaring that the petition has been duly made and shall make the necessary order after the taking of the evidence in conformity with the provisions on the matter.
- Art. 368. At any stage or epoch of
the cause whatsoever, if there is proof of the right sued for,
although it be by the deposition of witnesses, when this proof
is admissible according to the civil code, any of the parties
may request, according to the case and the judge may grant:
- First. Prohibition to alienate the subject-matter of the dispute.
- Second. The sequestration of determinate properties.
- Third. Deposit of security, and in default thereof the attachment of sufficient property.
- Art. 369. None of the measures stated in the three preceding numbers shall be ordered, or shall be executed if they were ordered, if the party against whom they have been requested or decreed give sufficient security or guaranty.
- If the other party should object to the efficacy or sufficiency of the guaranty the tribunal shall decide on the proofs put forward at the first hearing.
- Art. 370. It shall be sufficient for those who sue in forma pauperis to take the oath cautio judicatum solvi.
- Art. 373. Sequestration shall be
decreed
- First. Of the chattel, the subject-matter of the action when the defendant has no responsible property and it is with reason feared that he may conceal, alienate, or deteriorate it.
- Second. Of the subject-matter of the dispute when its possession is doubtful.
- Third. Of the wife’s property and in default thereof of that of the conjugal partnership or of the husband, sufficient to cover the former when the husband wastes the wife’s property.
- Fourth. Of sufficient property of the inheritance, or, in default thereof, of the defendant, when he who has been deprived of his lawful property reclaims it from those who take or hold his inherited estate.
- Fifth. Of the real property which the defendant purchased and is enjoying without paying the purchase money.
- Sixth. Of the subject-matter in dispute when, definite judgment having been against the holder thereof, the latter appeals without giving security to answer for the said subject-matter and its fruits, although it be real estate.
- Seventh. Of the property leased if the defendant is sued for default in payment of rental, on account of the property becoming deteriorated, or on account of having failed to make improvements to which he is bound by the contract, provided any of the circumstances be proved in the manner indicated in article 368.
In this case the owner, and the purchaser in the case mentioned in number five, may demand an order that they themselves be named repository, and the property shall remain subject to answer the lessee or purchaser when necessary.
civil code.
- Art. 1104. Contracts snall be executed in good faith and entail the obligation of complying not only with what is stated in them, but with all the consequences that may be engendered by the said contracts, according to equity, custom, and law.
- Art. 1138. Every condition shall be fulfilled in the manner the parties really wished or intended it to be fulfilled.
- Art. 1145. When no time has been stipulated, the obligation shall be fulfilled immediately if the nature of the obligation, or the manner in which it should be executed, or the place designated for fulfilling it, does not render a term to be fixed by the tribunal necessary.
- Art. 1149. The obligor of an alternative obligation is absolved by the performance of one of the things separately comprehended in the obligation, but he can not compel the obligee to accept a part of one and a part of the other.
- Art. 1150. In alternative obligations the right of election belongs to the obligor if it has not been expressly granted to the obligee.
- Art. 1264. All real actions shall be barred after thirty years and personal actions after twenty years, and no objection for want of title or good faith shall be raised against the limitation.
The right to proceed by the executive path shall be barred after ten years.
- Note.—To have obtained the relief afforded by this article the company would have had to deposit with the court 50,000,000 bolivars, or about $10,000,000.↩