That this possession of defendant's property (asentamiento) cannot be given in causes which do not amount to six hundred maravedis, L. 15. tit. 8. lib. 2. Rec. [L. 4. tit. 5. lib. 1. Nov. Rec.] 3d, That the possessor ought to preserve the fruits or products received to deliver them" to the party cited, if he shall appear within the specified terms to answer the suit (ú estar á derecho), L. 8. tit. S. P. 3. [L. 8. tit. 8. P. 3.]

11 Vide Greg. Lop. gl. 3. L. 8. tit. 8. p. 3. on this.

TITLE VI.

OF EXCEPTIONS.

AFTER the demand is presented or instituted, the defendant [268] either consents to and acknowledges what is prayed, or perhaps opposes or prefers some exceptions. In the first case, the judge ought to appoint some term in which he is to pay or fulfil the same, L. 7. tit. 3. P. 3. [L. 7. tit. 3. P. 3.] In the second, the cause is carried on in the manner we shall point out.

Cap. 1. Exception is every defence that bars or stays the action of the plaintiff. Exceptions are divided into dilatory, peremptory, and mixed. The first are those which delay the suit, and do not put an end to it, L. 9. tit. 3. P. 3. [L. 9. tit. 3. P. 3.] Peremptory exceptions extinguish entirely the right of the plaintiff, and put an end to the cause, L. 11. tit. 3. P. 3. [L. 11. tit. 3. P. 3.] Mixed partake of the nature of both.

Dilatory exceptions are the competency of jurisdiction, suit depending, recusation1 of the judge, those which relate to the person of the party, on account of being not authorised to appear in court, making the demand before the time, and with obscurity, Ll. 7. 8. and 9. tit. 3. P. 3. [Ll. 7. S. and 9. tit. 3. P. 3.]

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These exceptions impede the progress of the suit when they are opposed and proved within nine days before contestation, L. 1. tit. 5. lib. 4. Rec. [L. 1. tit. 7. lib. 11. Nov. Rec.,] for if this term be passed, they ought not to be received in the quality of dilatory pleas or exceptions, L. 9. tit. 3. P. 3. [L. 9. tit. 3. P. 3.,] a copy of them must be given to the party, and their merit and force must be pronounced upon before going on with the cause, Hevia, Part. 1. § 13. num. 10. Among all the exceptions of this class, the first which must [269] be opposed, is the plea to the jurisdiction of the judge; for otherwise it is presumed the party calls upon him to pronounce upon the other exceptions, and consequently that he submits to the jurisdiction, Carleval, de Judiciis, tit. 2. disp. 5. n. 7. And it is to be observed, that from the determination of the judges on pleas to jurisdiction, there is no supplication (suplicacion), nor other recourse,3 L. 4. tit. 5. lib. 4. Rec. [L. 7. tit. 21. lib. 11. Nov. Rec.]

1 See Append. Z.

2 After citation, exclusively of the day thereof; this is understood if the defendant be within the jurisdiction; but if not, then nine days after the day of the last term which the judge hath assigned for his appearance.-Palacios. See Append. Q and R.

3 This is not meant from the determination of the particular judge to whose jurisdiction the plea is made, but from that of the council and audiences, with reference thereto. Vide the law quoted in the text. The foregoing opinion is confirmed by a note of

The recusation, or challenge of the judge, must be alleged in the first place, in the absence of an objection or plea to his competency, and subject to the following observations. 1st, That when any alcalde, or inferior judge, is recused, an associate is appointed with him, Ll. 1. and 2. tit. 16. lib. 4. Rec. [Ll. 1. and 2. tit. 2. lib. 11. Nov. Rec.] 2d, That he cannot be recused without just cause, L. 2. tit. 10. lib. 2. Rec. [L. 4. tit. 2. lib. 11. Nov. Rec.] 3d, That recusation is not allowed when the suit is concluded, or in a state for definitive sentence, unless the cause were new, and provided that before it be received, the party deposit thirty thousands maravedis, as fully set forth in L. 4. tit. 30. lib. 2. Rec. [L. 6. tit. 2. lib. 11. Nov. Rec.] 4th, That the cognisance or trial of such suspicion or plea, is summary, L. 1. tit. 10. lib. 2. Rec. [L. 3. tit. 2. lib. 11. Nov. Rec.] 5th, That the term to prove the recusation may not exceed forty days within the limits (aquende de los puertos), and sixty days beyond them, nor that more than six witnesses be presented, L. 6. tit. 10. lib. 2. Rec. [L. 9. tit 2. lib. 11. Nov. Rec.] 6th, That the decree in which the judge declares himself as not recused, may be petitioned against (suplicar del, &c.). See L. 7. tit. 10. lib. 2. Rec. [L. 10. tit. 2. lib. 11. Nov. Rec.,] with all that is besides laid down by tit. 10. lib. 2. Rec. [tit. 2. lib. 11. Nov. Rec.,] with respect to the recusations of oidores and counsellors.

There are two extraordinary dilatory exceptions, which cause the accumulation of proceedings (autos y procesos), and they are, that of a suit pending, and that of not dividing the unity which should exist in every judgment or sentence (la continencia de la causa). This unity or continency (continencia) may be of five modes, or kinds. 1st, The plaintiff and defendant having an identity of action. 2d, When there is an identity of parties, and of the thing demanded, although the action be different, as happens in possessory and petitory suits. 3d, The action and the persons being the same, but not the thing demanded, ex. gr. in the suits of guardianship and administration. 4th, When one action is carried on against many by reason of its cause and origin, ex. gr. in the suit of guardianship against many or several guardians, or when any one creditor may sue many debtors for the same obligation. 5th, If there is an identity of action [270] and of the thing, although the persons be different, as happens in suits of division, Carleval, tit. 2. disp. 2. num. 3.

The unity or continency of the cause does not produce the effect of accumulation of proceedings when the plaintiff and defendant are of distinct jurisdictions (distinto fuero), or when the party who

Palacios in this place, who states, that the contrary of the allegation in the text is enacted by L. 3. tit. 18. lib. 4. Rec.

4 The privilege or right of recusation or challenge in respect to judges, officers, or escribanos of tribunals, hath been repealed, as regards Trinidad, by Order in Council, of the 16th September. 1822. Vide Appendix Z.

5 Increased to 60,000, by L. 7. tit. 2. lib. 11. Nov. Rec.

opposes the exceptions does not pray it, Carleval, ibid. ú num 7. al 14. In the cases in which this accumulation takes place, the original proceedings must be passed by virtue of the power (ú poder del) of the escribano, before whom the first suit hath been begun, Carleval, ibid. num. 26. Peremptory exceptions are very diverse, according to the nature of the action. They must be alleged within twenty days, which run after the nine days for contestation, which having expired, they will not be admitted, unless the defendant swear that they have recently come to his knowledge, and it being known to the judge, that he does not allege them maliciously; it being understood that if he shall not prove them within the term, he will be condemned in costs, L. 1. tit. 5. lib. 4. Rec. [L. 1. tit. 7. lib. 11. Nov. Kec.]

Mixed exceptions may be opposed as dilatory ones before contestation, or as peremptory ones to bar or extinguish the right of the plaintiff; such are transaction or accord, a thing or case adjudged (cosa juzgada), &c., Carleval, tit. 2. disp. 5. num. 4.

After publication of proofs is made, no new exception can be alleged, in order to be received for proof, unless by.confession of the party or public instrument of writing, except they who prefer it, should be minors, a university, a church, &c. to whom restitution (restitucion) must be allowed, in order to oppose their exceptions, provided they pray it before conclusion for definitive sentence, L. 5. tit. 5. lib. 4. Rec. [L. 1. tit. 13. lib. 11. Nov. Rec.] But these persons, i to whom it is usual to grant restitution, must give bond to pay a certain penalty declared by the judge, if they shall not prove the exception, L. 6. tit. 5. lib. 4. Rec. [L. 2. tit. 13. lib. 11. Nov. Rec.]

Within the above-mentioned term, the defendant may file his reconvention or cross-bail and mutual petition, or demand of set-off, against the plaintiff; and if his proof consists of written documents, he must present them immediately; and if of witnesses, he shalĺ swear that he has them; but if the proof consists of written documents and witnesses, he ought to present them in the term, [271] or otherwise they are not to be afterwards admitted, unless he shall swear that he had not previously knowledge of them, L. 1. tit. 5. lib. 4. Rec. [L. 1. tit. 7. lib. 11. Nov. Rec.]

The cause of reconvention or plea of set-off, is entertained at the same time with the principal demand, and is determined by the same sentence, L. 4. tit. 10. P. 3. [L. 4. tit. 10. P. 3.] Let reference be also had to Carleval, tit. 2. disp. 7.

Of the exceptions which the defendant shall prefer, a copy or traslado is given to the plaintiff to reply and make his allegations to, within six days; and if a reconvention or plea of set-off hath been alleged, he will be allowed nine days to file his answer to it. The replication of the plaintiff will be passed to the defendant for six days to make his duplication or answer to it, so that with two petitions or

6 See Wood's Int. C. L., book 4. c. 3. p. 321, 322. Restitution in integrum.

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allegations on both sides, the cause is held concluded to be received for proof, L. 3. tit. 5. lib. 4. Rec. [L. 2. tit. 7. lib. 11. Nov. Rec.]

7 This is re-enacted by the Order in Council, 16th Sept. 1822, and the rules of court in reference thereto. Regard must he had to them in respect to the conduct of a suit or action in Trinidad. Vide Append. Q. and R.