TITLE III.

OF THE PLAINTIFF, DEFENDANT, PROCTOR OR ATTORNEY AND AD

VOCATE.

[257] THE principal persons who compose the court or trial are, the judge, (of whom we have already spoken,) the plaintiff, the defendant, the proctor or attorney, and the advocate.

Cap. 1. The plaintiff is he who institutes this suit or demand at law, to obtain right or justice, L. 1. tit. 2. P. 3. [L 1. tit. 2. P. 3.] The defendant is he against whom any suit or demand at law is instituted or preferred, Prol. tit. 3. P. 3. [Prol. tit. 3. P. 3.] [258] In these definitions it is established, 1st, That the plaintiff claims or alleges some right. 2d, That the defendant is he from whom something is demanded. From the first principle it follows, 1st, That the child or grandchild who is under the power (en potestad) of the father or grandfather, cannot sue him except it be on account of aliment, or on account of the deterioration of property, which the child hath acquired from another person, L. 2. tit. 2. P. 3. [L. 2. tit. 2. P. 3.] 2d, That these persons being free or exempt from paternal authority or power, may sue their fathers or grandfathers, asking first permission' through motives of respect, L. 3. tit. 2. P. 3. [L. 3. tit. 2. P. 3.] 3d, that the person under 25 years of age, the dumb, the deaf, the insane or non compos mentis (loco), and prodigal, cannot appear in a law suit in quality of plaintiffs or defendants without authority of their curators; and not having them, the judge ought to appoint them officially, Ll. 7. and 11. tit. 2. P. 3., and Ll. 12. and 13. tit. 16. P. 6. [Ll. 7. and 11. tit. 2. P. 3., and Ll. 12. and 13. tit. 16. P. 3.] 4th, That the wife cannot appear in suit without the permission of her husband, L. 3. tit. 3. lib. 5. Rec. [L. 12. tit. 1. lib. 10. Nov. Rec.,] and the judge may also, with cognisance of the cause, oblige the husband to give his assent, L. 4. tit. 3. lib. 5. Rec. [L. 13. tit. 1. lib. 10. Nov. Rec.]

From the second principle it arises, 1st, That friars and monks cannot be sued, and the cause ought to be carried on with the monastery, L. 10. tit. 2. P. 3. [L. 10. tit. 2. P. 3.] 2d, That the demand being laid against any corporation (consejo), or university, it is sufficient to have recourse to the syndic or the attorney (procurador), L. 13. tit. 2. P. 3. [L. 13. tit. 2. P. 3.] 3d, That in causes respecting an

1 i. e. of the judge.

And if the husband refuses, the judge himself may grant the wife the necessary per. mission, L. 13. tit. 1. lib. 10. Nov. Rec., al fin.

inheritance. the heirs are lawful defendants, L. 14. tit. 2. P. 3. [L. 14. tit. 2. P. 3.] and if they shall be found absent, and cannot come, the judge, having information of it, appoints a curator and defender of the property, L. 12. tit. 2. P. 3. [L. 12. tit. 2. P. 3.]

Cap. 2. Any person may be a party to a suit by himself or by attorney, who is he who manages or conducts any suits or the affairs of another by command or desire (mandado) of the principal, L. 1. tit. 5. P. 3. [L. 1. tit. 5. P. 3.;] whence result the following axioms, 1st, That only the absolute master of his affairs may appoint an attorney. 2d, That the latter is constituted by commission (mandato), and lawful power. From the first principle it is deduced, that one under twenty-five years of age cannot appoint an attorney without the consent of his curator, unless it be for his benefit, Ll. 2. and [ 259] 3. tit. 5. P. 3. [Ll. 2 and 3. tit. 5. P. 3.] From the second principle it is inferred, 1st, That a minor,3 a woman (muger), a madman, (loco), a deaf person (sordo), a prodigal, a clergyman, a religious person (religioso), and a powerful person (hombre poderoso), a military man, and other persons employed in his Majesty's service, cannot be attorneys, Ll. 4, 5, 6, 7, 8, and A5 3. [Ll. 4, 5, 6, 7, 8, and 9. tit. 5. P. 3.] 2d, That notwithstanding hat is expressed in L. 10. tit. 5. P. 3. [L. 10. tit. 5. Lone mustle and be sued in the present day, in the audiences and changes through the medium of a proctor or solicitor of the number admitted, who before exercising their office are examined and being incompetent, may he excluded, Ll. 1. and 10. tit. 24. lib.Rec. [L. 1 and 12. tit. 31. lib. 5. Nov. Rec.] They cannot prefer an allegation, nor petition in one hall or court (sala) which they shall have preferred in another, L. 9. tit. 24. lib. 2. Rec. [L. 10. tit. 31. lib. 5. Nov. Rec.] They ought to deliver to the advocates the money and writings or papers, (escrituras), which the parties shall send them, L. 7. tit. 24. lib. 2. Rec. [L. 8. tit. 31. lib. 5. Nov. Rec.] and they are made responsible for the proceedings, so that they must return them within the terms prescribed, L. 4. tit. 24. lib. 2. Rec. [L. 6. tit. 31. lib. 5. Nov. Rec.] 3d, That when the attorney appears in the suit, he must exhibit a sufficient power or authority, although it be in the same proceedings, certified or attested by an advocate, L. 2. tit. 24. lib. 2. Rec. and L. 24. tit. 16. lib. 2. Rec., and Ll. 13. and 14. tit. 5. P. 3. [L. 3. tit. 31. lib. 5. and L. 3. tit. 3. lib. 11. and L. 8. tit. 10. lib. 11. Nov. Rec. and Ll. 13. and 14. tit. 5. P. 3.] 4th, That the attorney cannot exceed the limits of his power, nor substitute, unless he should have authority to do so, or free and full or ample power (un poder libre y lleno), L. 19. tit. 5. P. 3. [L. 19. tit. 5. P. 3.] 5th, That the ratification of what has been done by an attorney, considered as such, has the force or virtue of a commission or authority (mandato), L. 20. tit. 5. P. 3. [L. 20. tit. 5. P. 3.] 6th, That if there be several attorneys, the suit must be carried on with

3 Judicial attorney (para pleytos) is understood, says Palacios; for a person above seventeen years of age may be an extra-judicial attorney (para negocios), L. 19. tit.5. F. 3. VOL. I.-37

him who begun it, and if all shall commence it, it will be sufficient that one of them prosecute it for the rest, L. 18. tit. 5. P. 3. [L. 18. tit. 5. P. 3.] 7th, That if the power of the attorney should appear doubtful or suspicious, he shall not be permitted to pursue it, without giving security that the principal shall hold as firm and valid whatever he shall do, L. 12. tit. 5. P. 3. [L. 12. tit. 5. P. 3.] 8th, That he is responsible to the party for the injury (vaño), which he shall occasion by his fault (culpa), L. 26. tit. 5. P. 3. [L. 26. tit. 5. P. 3.] 9th, That on rendering his accounts, he shall be paid his expenses (gastos), except they should be incurred through his bad faith, contumacy, &c., L. 25. tit. 5. P. 3. [L. 25. tit. 5. P. 3.] 10th, That in order to demand restitution on behalf of the minor or the child, that any one retains against the will of the father, or to accuse as suspicious a [260] guardian, a special power is necessary, Ll. 15, 16, and 17. tit. 5. P. 3. [Ll. 15, 16, and 17. tit. 5. P. 3.] 11th, That the power for suits, or judicial power, is at an end by the death of the principal or of the attorney, if it happen before contestation, but not if after; by revocation or renunciation, provided it be communicated or made known to the party, Ll. 23, and 24. tit. 5. P. 3.4 [Ll. 23,and 24. tit. 5. P. 3.]

Cap. 3. An advocate is a person who advocates the cause of another or his own, in suing or defending, L. 1. tit. 6. P. 3. [L. 1. tit. 6. P. 3.] The minor of 17 years of age, the deaf, the dumb, the madman, the prodigal, the friar, a woman, an infamous person, or one guilty of a heinous offence (delito mayor), a jew, &c., cannot be an advocate, Ll. 2, 3, 4, 5, and 6. tit. 6. P. 3. [Ll. 2, 3, 4, 5, and 6. tit. 8. P. 3.] The obligations adherent to the profession of an advocate, are comprehended under the following dispositions, conformable to our laws, 1st, That no one can be an advocate without being first examined, and swearing that he will conduct himself faithfully, and will not defend unjust causes, Ll. 1. and 2. tit. 16. lib. 2. Rec. [Ll. 1. and 3. tit. 22. lib. 5. Nov. Rec.] 2d, That they allege facts briefly, and do not cite laws, L. 4. tit. 16. lib. 2. Rec. [L. 1. tit. 14. lib. 11. Nov. Rec.] 3d, That they do not advocate contrary to the disposition or authority of the law, L. 16. tit. 16. lib. 2. Rec. [L. 13. tit. 22. lib. 5. Nov. Rec.] 4th, That they first see the proceedings, and do not allege malicious things, L. 13. tit. 16. lib. 2. Rec. [L. 17. tit. 22. lib. 5. Nov. Rec.] 5th, That the advocate who hath assisted one party in the first instance, may not assist the opposite party in the second, L. 13. tit. 16. lib. 2. Rec. [L. 17. tit. 22. lib. 5. Nov. Rec.] 6th, That at the commencement of the suit, thay take a report of the affair, signed by the party, L. 14. tit. 16. lib. 2. Rec. [L. 10. tit. 22. lib. 5. Nov. Rec.] 7th, That no one discover the secret of his party, nor abandon the cause

4 It may be here observed that, in Trinidad, an advocate, practising in the tribunals there, is appointed, under the character of defender of absent persons, to defend or sup port, judicially, the rights and interests of unrepresented absent defendants, and claims against the estate of deceased intestate persons, whose heirs are absent, and unrepresented in the colony. Vide L. 12. tit. 2. P. 3.

which he shall have begun, Ll. 17. and 22. tit. 16. lib. 2. Rec. [Ll. 11. and 12. tit. 22. lib. 5. Nov. Rec.] 8th, That they cannot demand any thing on account of the success of the suit, L. 8. tit. 16. lib. 2. Rec. [L. 22. tit. 22. lib. 5. Nov. Rec.] 9th, That no one may advocate in a cause in which his father, son, son-in-law, or father-in-law, are judges or escribanos, L. 34. tit. 16. lib. 2. and L. 7. tit. 25. lib. 4. Rec. [L. 2. tit. 14. lib. 11., L. 29. tit. 22. lib. 5. and L. 6. tit. 3. lib. 11. Nov. Rec.] 10th, That they may not ask or put questions or positions upon what has been confessed by the parties, L. 4. tit. 7. lib. 4. Rec. [L. 4. tit. 9. lib. 11. Nov. Rec.]

With respect to reporters (relatores), and escribanos, our laws have laid down the most fit provisions, which are found collected in Titles 17, 19, 20, and 21. lib. 2. Rec.

TITLE IV.

OF ACTIONS AND DEMANDS.

[261] § 1. ACTION is the legal demand of one's right' (el derecho de la cosa que se pretenda). The principal division of actions, according to our jurisprudence, is into real, personal, and mixed. By real action the dominion or property in the thing is demanded or sued for: by personal, the right which belongs to one in virtue of any contract:3 'the mixed partakes of both; such is the personal action strengthened or confirmed by the establishment of a mortgage. Actions are also divided into civil and criminal, according to the quality of the trials or suits (juicios).

The exercise or prosecution of the action' unto definitive sentence is called instance, Hevia, part 1. § 9. num. 1.

§ 2. The cognisance of causes in first instance appertains to the ordinary judge, to whom they belong, except those which are cases of court (casos de corte), for then the litigants are withdrawn from their own jurisdictions and domiciles. Of cases of court (casos de corte) some are notorious, so that it is sufficient to allege them; such are the causes of corporations, universities, monasteries, grandees, nobles, or persons having titles, ministers, alcaldes, and magistrates, or corregidors (corregidores), L. 8. tit. 3. lib. 4. Rec. [L. 9. tit. 4. lib. 11. Nov. Rec.:] but the king's servants do not enjoy the privilege of caso de corte, according to L. 60. cap. 4. tit. 4. lib. 2. Rec.6 [L. 2. tit. 10. lib. 4. Nov. Rec.] which reforms or amends L. 9. tit. 3. lib. 4. Rec. [L. 10. tit. 4. lib. 11. Nov. Rec.] There are other casos de corte upon which it is necessary to afford information; such are causes relating to entails (bienes de mayorazgo), those of miserable persons, and the criminal ones expressed in L. 8. tit. 3. lib. 4. Rec. [L. 9. tit. 4. lib.

1 This is perhaps not the literal translation of the passage, but in the correct meaning; "actio nihil aliud est quam jus persequendi in judicio quod sibi debetur," the right and power of prosecuting in judicature for what is one's due, or the means which the law puts into a man's hands of pursuing and recovering those rights, whether perfect or imperfect, of which he is unjustly deprived Vide Wood, C. L. book. 2. c. 3. p. 315. Hal. Anal. C. L. book. 3. c. 1. p. 77. Sala. Inst. Rom. Hisp. tom. 2. lib. 4. tit. 6. p. 358. n. 8. Sala. Il. tom. 2. lib. 3. tit. 1. p. 124. n. 1. &c.

2 Jus in re.

3 Jus ad rem.

4 From contestation he adds, "despues de la contestacion." Vide also Paz, Prax. 2. Annot. de Inst. num. 6. p. 9.

5 The cognisance of which belongs principally to the king, and by enactments to his council, chancery, audiences, 6 Feb. Ad. p. 11. n. 45. and 46.

6 This quotation is incorrect.

7 This does not appear. Vida contra, 6 Feb. Ad. p. 20. n. 45.