TITLE VII.

OF PROOFS.

To the demand and answers, or after the conclusion of the [ 272 ] pleadings (conclusion de pleytos) follow the proofs upon what has been alleged, L. 1. tit. 6. lib. 4. Rec. [L. 1. tit. 10. lib. 11. Nov. Rec.], and part of L. 3. ibid. the termination of which depends also upon two petitions, which the parties may present,' L. 9. tit. 6. lib. 4. Rec. [L. 1. tit. 15. lib. 11. Nov. Rec.]

Cap. 1. Proof is the verification or evidence which is given in a trial or suit, in respect of any thing which is doubtful, L. 1. tit. 14. P. 3.[L. 1. tit. 14. P. 3.] Hence, it follows, 1st, That generally the plaintiff must afford it with respect to what the defendant shall deny. 2d, That it ought always to be given upon what is affirmed, unless the negation draw with it an affirmation, from which arises the general rule, that the party who denies any thing in a suit is not bound to prove it, L. 2. tit. 14. P. 3. [L. 2. tit. 14. P. 3.] 3d, That the proof by given in the suit, and upon a thing or fact relative to it, L. 7. tit. 14. P. 3. [L. 7. tit. 14. P. 3.] 4th, That being duly made, it produces entire faith with the judge.

From the first principle it results, 1st, That if the plaintiff shall not prove, the defendant is absolved, L. 1. tit. 14. P. 3. [L. 1. tit. 14. P. 3.] 2d, That both the plaintiff and the defendant ought to prove in the following cases, 1st, He who alleges minority, in order to dissolve a contract, must prove it, and the injury or fraud received, L. 4. tit. 14. P. 3.; [L. 4. tit. 14. P. 3.] as also the orphan (huérfano), if by reason of majority, he shall desire to be freed from the curatorship; and if the curators wish to be exempted from it, they must prove the majority

1 With two petitions of each of the parties, the pleadings (el pleyto) must be concluded, for proof, if the cause requires it; and if it does not require proof, then for definitive sentence. According to Febrero (Reformado), p. 2. lib. 3. cap. 1. § 6. num. 199., when the suit proceeds in a direct course, and there are no dilatory pleas, the practice is for the plaintiff to file two principal petitions or pleadings; which are, first, the libel or declaration; and then the replication to the contestation or plea of the defendant; in which the plaintiff must, at the same time, reply to the reconvention or plea of set-off by the defendant, if there be any; and for the defendant to file two others, the one contesting or pleading to the action, in which the reconvention or plea of set-off and the peremptory exceptions are set forth or pleaded, without presenting or filing any other for such purpose, notwithstanding what the legal disposition points out; and the other rejoining to the replication of the plaintiff, or concluding for proof; although the latter, on sight of the contestation or reconvention of the defendant, may conclude upon the whole, without filing a replication; and neither of the parties ought to present more petitions upon the principal matter or the merits, for the law holds the pleadings (el pleyto) as concluded. Palacios (1). Reference may be also had to the positive enactments, on this point, of L. 1. tit. 14. lib. 11. Nov. Rec. (L. 4. tit. 16. lib. 4. Rec.) See also the Order in Council, 16th September, 1822, establishing a new Court of Civil Jurisdiction, and the rules relative thereto, Append. Q & R.

of the orphan, L. 4. tit. 14. P. 3. [L. 4 tit. 14. P. 3.] 2d, He who hath paid through error, if he shall wish it to be restored to him, is bound to prove that he did not owe the money, unless he be a knight (caballero), simple laborer, ignorant of the right or law (fuero), a woman, and minor of fourteen, for then the opposite party must prove the debt to be real, L. 6. tit. 14. P. 3. [L. 6. tit. 14. P. 3.]

From the second principle it is inferred, 1st, That the plaintiff must prove the negative on which his intention is founded, Gutierrez, [273] de juram. confirm. P. 1. cap. 1. num. 19, and 20. 2d, That the following cases, carrying with them the affirmative, he who alleges them in the cause is bound to prove them, although he may have alleged them by a negation. These are, 1st, Negation of fitness or competency in an advocate, a judge, a witness, &c. 2d, Negation of sanity in a testator, L. 2. tit. 14. P. 3. [L. 2. tit. 14. P. 3.]

From the third principle it is inferred, 1st, That the proof must be given upon things from which formal judgment may be made, as upon a thing movable, real, the state of a person, &c. L. 7. tit. 14. P. 3. [L. 7. tit. 14. P. 3.] 2d, That the judge ought not to consent that proof be received upon useless things which do not avail the suit or judgment, and are foreign to or out of the cause, L. 7. tit. 14. P. 3. [L. 7. tit. 14. P. 3.] Ll. 7, and 4. tit. 6. lib. 4. Rec. [L. 5. tit. 10. lib. 11. Nov. Rec.] 3d, That upon what is confessed, proof ought not to be made, L. 4. tit. 7. lib. 4. Rec. [L. 4. tit. 9. lib. 11. Nov. Rec.] 4th, That the proofs ought to be shown to the judge, and not to the opposite party; although a copy or traslado of them shall be given to him if he shall pray it, L. 7. tit. 14. P. 3. [L. 7. tit. 14. P. 3.]

From the fourth principle it arises, 1st, That some proofs produce entire faith in law, that is, they are sufficient to condemn; and others cause half faith, or are not sufficient to condemn, Gomez, tom. 3. Var. res. cap. 12. n. 2.

Of the first class, are the six kinds of proof, of which we shall here speak; and they are, that by oath (juramento), that by confession of the party, that by witnesses, that by instruments, that by sight and evidence of the fact, and that by presumption, L. 8. tit. 14. P. 3. [L. 8. tit. 14. P. 3.] all the rest form half proof; but when two half proofs concur, with respect to a thing, they will produce entire faith, Hevia, Cur. Fil. p. 1. and 17. n. 6.

Cap. 2. § 1. An oath is the attestation which is made by calling on God, or something holy, with respect to what any one affirms or denies,3 L. 1. tit. 11. P. 3. [L. 1. tit. 11. P. 3.] Hence it is, that an oath is an affirmation of the truth, made religiously, L. 1. tit. 11. P. 3. [L. 1. tit. 11. P. 3.] Therefore, 1st, The person under 25 years

2 The law quoted in the text says, that this last Greg. Lopez, in his exposition of it, says, "Ubi est presumption, not presuncion de hombre ú de Juez." 40., and L. 12. tit. 14. P. 5.

3 Vide Wood, Civ. Law, book 4. c. 2. p. 313.

is only valid in some things: and expressum in Lege alias non: legal Vide Cur. Fil. tit. prueba, p. 93. n.

of age cannot make it; nor the child under his father's power, unless it were with respect to property (castrense), nor the madman, one who has lost his memory (desmemoriado), and the prodigal, except with the authority of the curator, L. 3. tit. 11. P. 3. [L. 3. tit. 11. P. 3.] 2d, That the attorney who has a special power for the purpose, or cum libera, may swear for his principal; or when the injury or benefit which would result from the oath, were against him alone, L. 4. tit. 11. P. 3. [L. 4. tit. 11. P. 3.] 3d, That it be with respect to a thing in which he who swears has at least some interest; [ 274 ] but guardians or the attorneys of corporations or of an hospital may swear only when proofs by witnesses or instruments shall fail them, L. 9. tit. 11. P. 3. [L. 9. tit. 11. P. 3.] 4th, That in the absence of these proofs, that by oath may be received in suits of an university; with respect to marriage or marriage contract (casamiento), with respect to privilege; and in criminal suits, in cases where the accused should be a man of vile and suspicious character, and the penalty not capital, L. 10. tit. 11. P. 3. [L. 10. tit. 11. P. 3.] 5th, That an oath ought to be made as to what one shall know, believe, or understand of the thing with respect to which he swears, and only in clear and certain cases, L. 11. tit. 11. P. 3. [L. 11. tit. 11. P. 3.] 6th, That the oath made through fear, in the cases expressed by L. 29. tit. 11. P. 3. [L. 29. tit. 11. P. 3.] ad finem is not valid. 7th, That all persons must swear before the judge, except those sick, widows, maids, old persons, and others prevented, who shall do it in their houses, L. 22. tit. 11. P. 3. [L. 22. tit. 11. P. 3.] 8th, That an oath without the solemnity of law, or that solemnity which ought to be observed according to the custom of the place, is not valid, Ll. 8. and 19. tit. 11. P. 3. [Ll. 8. and 19. tit. 11. P. 3.]

§ 2. An oath is of three sorts, voluntary, necessary and judicial. The voluntary is that which one party voluntarily offers to the other beyond the suit or out of court (fuera de juicio), L. 2. tit. 11. P. 3. [L. 2. tit. 11. P. 3.] Therefore, 1st, It must be made with the consent of the party to whom it is offered, L. 2. tit. 11. P. 3. [L. 2. tit. 11. P. 3.] 2d, But when once received, it causes entire faith in law, L. 2. tit. 11. P. 3. [L. 2. tit. 11. P. 3.] 3d, That being made with the consent of the contrary party it produces proof, although what is sworn may not be certain, L. 13. tit. 11. P. 3. [L. 13. tit. 11. P. 3.]

The necessary oath is that which the judge officially orders any of the parties to make, in order to the better proof of the truth, L. 2. tit. 11. P. 3. [L. 2. tit. 11. P. 3.] Whence it is, that there are as many kinds of this description of oath, as there are cases in which the judge may deem it necessary for the proof of that which is in dispute, or its value, or of the damage caused, &c.; examples of which may be seen in Ll. 5 and 6. tit. 11. P. 3. [Ll. 5 and 6. tit. 11. P. 3.] And this the party whom the judge shall command is

4 Quare? unless under the authority of the curator. See L. 9. tit. 16. P. 3., as to the prescribed age of witnesses in civil and other suits.

Vol. I.-39

obliged to make; and not being willing to obey, he is condemned in the suit, or judgment shall be given against him, unless he had just reason for not making it, L. 2. tit. 11. P. 3. [L. 2. tit. 11. P. 3.]

The judicial oath is that which one party tenders to the other in the [275] suit, obliging himself to abide by what the latter shall swear L. 2. tit. 11. P. 3. [L. 2. tit. 11. P. 3.] This oath may be refused by him to whom it is offered, provided he makes in return a like proposal under the same circumstances to the party who tendered it, in which case the latter cannot refuse, Ll. 2. and 8. tit. 11. P. 3. [Ll. 2. and 8. tit. 11. P. 3.] This oath may be repented of by him who calls for it before it is made by his adversary, L. 8. tit. 11. P. 3. [L. 8. tit. 11. P. 3.]

§ 3. Many advantages result from these oaths; because, 1st, By them the dominion, right, or possession of the thing is proved, Ll. 12. and 13. tit. 11. P. 3. [Ll. 12. and 13. tit. 11. P. 3.] 2d, By them the suit is put an end to, but not as though sentence had been pronounced, L. 15. tit. 11. P. 3. [L. 15. tit. 11. P. 3.;] and, therefore, 3d, If the suit should be revived, or there should be a new trial, and he who swore should affirm the contrary, a sentence given on this last oath will prevail, L. 15. tit. 11. P. 3. [L. 15. tit. 11. P. 3.] 4th, In the same manner, by a written instrument, the oath is destroyed, the sentence given by reason of the latter being revoked on account of the former, unless it be a voluntary oath, without the direction or desire of the judge, which cannot be revoked in any case, because it only deceives the party, L. 25. tit. 11. P. 3. [L. 25. tit. 11. P. 3.] 5th, That the minor who hath sworn not to contravene or contradict what he hath stipulated, by reason of his minority, cannot afterwards demand restitution, unless it be for prejudice by sentence, L. 16. tit. 11. P. 3. [L. 16. tit. 11. P. 3.] 6th, That if he who swore by a judicial oath he was not indebted, afterwards pays him who sued him for the debt, he may recover it back, assigning as a reason his having paid that which he did not owe, although it should be a lie; for by the judicial oath he remains discharged from the debt: but if he were absolved by sentence, and notwithstanding paid, he cannot recover, because then the truth is of more force than the sentence, L. 16. tit. 11. P. 3. [L. 16. tit. 11. P. 3.]

Oaths not only benefit him who makes them, but are also of use to his heirs; to the purchaser of the thing with respect to which the oath is made; to the other partners of the person swearing; to the surety, if it is made by the principal debtor, but not on the contrary;7 and to the ward, if the gaurdian made it; but the oath of the mother to keep possession in the name of the child of whom she is pregnant, does not benefit the child, who shall be obliged to prove his quality

5 Made by consent of the litigants. See L. 25. tit. 11. P. 3., cited.

6 Add, "who consented to receive it from his adversary." See L. 25. tit. 11. P. 3., cited.

7 This must be qualified. Vide L. 17. tit. 11. P. 3.

of heir, Ll. 17. and 18. tit. 11. P. 3. [Ll. 17. and 18. tit. 11. P. 3.] Lastly, they cannot be made in the holy places expressed by L. 5. tit. 7. lib. 4. Rec. [L. 5. tit. 9. lib. 11. Nov. Rec.]

§ 4. There is another species of oath, which is called the [276] oath of calumny, and is the oath which men make that they will proceed truly in the suit and without fraud, L. 23. tit. 11. P. 3. [L. 23. tit. 11. P. 3.] It is made either by order of the judge, the suit or pleadings being concluded for proof, L. 1. tit. 6. lib. 4. Rec. [Ll. 1. and 3. tit. 10. lib. 11. Nov. Rec.,] or on the petition of the party; in which last case, if one is absent, a decree is given for it (se le da la provision) within a term, L. 3. tit. 7. lib. 4. Rec. [L. 3. tit. 9. lib. 11. Nov. Rec.] It was formerly called the oath of manquadra; because, as there are five fingers to the hand perfect, so there are five things which the plaintiff and,defendant ought to swear. 1st, The plaintiff ought to swear that he does not prosecute the suit through malice, but to obtain his right (sino por juzgar tener derecho), and the defendant that he does not contradict or oppose maliciously, but with an intention of showing his right. 2d, They must both swear, that always, when questioned upon any matter of the suit, they will speak the truth. 3d, That they have not bribed, nor will bribe, the judge, nor the escribano. 4th, That they will not allege any false proof. 5th, That they will not pray for any time or delay through malice, L. 23. tit. 11. P. 3. [L. 23. tit. 11. P. 3.] This oath the principals ought to make, and not the attorney or another for him, although they may have commenced the suit in their name, unless it be an attorney of a corporation, university, &c., from whom he shall have special power for it, Ll. 23, and 24. tit. 11. P. 3. [Ll. 23. and 24. tit. 11. P. 3.] It is taken in every kind of civil and criminal causes, and if the plaintiff oppose it, the defendant is absolved; and if the latter will not take it, he shall be taken as condemned, L. 23. tit. 11. P. 3. [L. 23. tit. 11. P. 3.]

§ 5. These oaths are always accompanied by the questions of the judge, or of the party who demands it, which questions should be put upon a thing that relates to the suit, and in clear and few words, Ll. 1. and 2. tit. 12. P. 3. [Ll. 1. and 2. tit. 12. P. 3.] Of these questions, the interrogative libel or declaration (libelo interrogatorio) is composed, to which the parties ought to answer by the words "I deny or confess, I believe or do not believe;" the answer, "that it is not known," not being received, and the party being taken as confessing those points to which he will not make answer, L. 1. tit. 7. lib. 4. Rec. [L. 1. tit. 9. lib. 11. Nov. Rec.] These answers of the party, besides being received with an oath, must be given without consulting an advocate, and without any term for deliberation, and answer is to be made to each point (artículo) separately, L. 2. tit. 7. lib. 4. Rec. [L. 2. tit. 9. lib. 11. Nov. Rec.]

Termed posiciones. See 6th vol. Feb. Ad., p. 2. lib. 3. c. 1. § 7. p. 125. n. 288. 6th ed.: also L. 2. et seq., tit. 9. lib. 11. Nov. Rec.