DISSENTING OPINION OF
MR. JUSTICE WOLF.The decision of the court in this case is, as I understand it, founded on the theory that sections 76 and 77 of our Code *603of Civil Procedure, for the purposes of this case, are virtually a re-enactment of similar provisions of the Spanish Code of Civil Procedure, and hence it must he presumed that they were adopted with the construction put upon them by the Spanish courts and commentators.
It is well known that the Code of Civil Procedure in its entirety was taken from Idaho, and hence I think the words generally used in that code must be given the construction they have always received in American courts. People v. Rosaly, 227 U. S. 270; Schick v. United States, 195 U. S. 65. The system of suits and the jurisdiction of the courts are considerably different, and it was the evident intention of the Legislature of Porto Eico to give the Island an American system of civil procedure. As the opinion points out, there are minor omissions in the adoption of the former provisions of the Spanish law, hut I think that section 76 in itself presupposes that a suit lias been filed. It seems to me that before there can be a submission there must be a suit or, at least, a cause of action; and there is no cause of action on a promissor}*' note until there is a default of some kind. To say that there can be a previous submission of a suit or a cause of action yet to arise is to state a contradiction in terms.
The majority opinion conceded the fact that an agreement of this kind could not be supported in .the United States.
The decision of the Supreme Court of the United States in Insurance Co. v. Morse, 87 U. S. 445, is clear on that point, and the reasoning of the court is in no way confined to the right to transfer a case from a state court to a federal court when it says that a party does not waive such a right by a contract in advance.
The decisions of the Supreme Court of Massachusetts in the case of Hall v. Mutual Fire Ins. Co., 6 Gray, 185, and Nute v. Hamilton Ins. Co., 6 Gray, 174, are applicable and are the leading capes. Mr. Chief Justice Shaw points out that a stipulation in a contract of this kind is merely an *604executory contract which could not be specifically enforced, The cases to which I have referred are cited in a note in Brown on Jurisdiction, Second Edition, page 29, to the effect that an agreement to submit to arbitration or before a particular forum is invalid to bind a defendant.
For the sake of argument it might be admitted that the Legislature could frame a law by which a defendant would be compelled to try his case in a court to which he had agreed to submit in case of controversy, but it seems to me that the individual legislator, if he had desired to do so in this case, has failed to use apt words. Section 81 of the Code of Civil Procedure provides that cases of this kind must be tried in the district court where the defendant resides at the commencement of the action. To defeat this right the defendant must submit to some other court, and I do not think that under any part of Title V of the Code of Civil Procedure there is any indication that the Legislature intended that the word “submission” should mean an agreement to submit made before a controversy has arisen; in other words, that when the Legislature adopted an American code the presumption would be that the public policy with regard thereto was the American policy, and that this presumption is not overcome by adopting isolated and incomplete paragraphs out of previous codes in force, even if it be admitted, which I do not, that the words of the Spanish code are susceptible of the interpretation given them.