Auto 28. tit. 10. lib. 2. Rec. [Nota 6. tit. 10. lib. 4., Nota 15. tit. 10. lib. 4. Nov. Rec.,] explains the mode in which these judges, commissioned by the council (concejo), must proceed in commissions de oficio, not being allowed to be accompanied by agents (diligencieros) or fiscals, Auto 9. tit. 1. lib. 8. Rec. [Nota 7. tit. 10. lib. 4. Nov. Rec.;] nor to exceed the bounds prescribed to their powers, Auto 4. tit. 1. lib. 8. Rec. [L. 14. tit. 34. lib. 12. Nov. Rec.] Their commission being completed, they ought to give an account of it to the council within twenty days, L. 46. tit. 4. lib. 2. Rec.. [L. 8. tit. 10. lib. 4. Nov. Rec.] without whose certificate they cannot obtain that from the fiscal of having given an account of the penalties or fines of the camara, Auto 3. tit. 13. lib. 2. Rec. [Nota 4. tit. 10. lib. 4. Nov. Rec.] The persons whom these judges shall condemn, ought to present themselves to the council within fifteen days, if within the walls of the city (los puertos), and within forty days if without the city, Auto 5. tit. 14. lib. 2. Rec. [Nota 2. tit. 14. lib. 4. Nov. Rec.]

These delegations are made for two purposes, either for the full or entire cognisance of the cause to definitive sentence, or for conducting the process (actuar el proceso), the judge delegating, reserving to himself the pronunciation of the sentence, L. 1. tit. 4. P. 3. [L. 1. tit. 4. P. 3.]

Every delegated judge ought to decide according to the orders of the persons delegating, L. 1. tit. 4. P. 3. [L. 1. tit. 4. P. 3.;] and from this principle it follows, that he can only hear the cause delegated and its accessory, without which the commission cannot be carried into effect (expedirse), Ll. 19. and 20. tit. 4. P. 3., L. 46. tit. 10. P. 3. [Ll. 19. and 20. tit. 4. P. 3., L. 46. tit. 10. P. 3.] 2d, That it is in the power of the person delegating to suspend him from the exercise of the office delegated whenever he pleases, L. 19. tit. 4. P. 3. [L. [248] 19. tit. 4. P. 3.] 3d, That the person delegating may take cognisance of (oir) the action of reconvention, and the agreement by the parties to refer to arbitrators (compromisos) upon matter appertaining to the commission, although nothing relating thereto be expressed in it, L. 20. tit. 4. P. 3. [L. 20. tit. 4. P. 3.] Delegated jurisdiction is terminated, 1st, By the revocation of the person delegating, L. 21. tit. 4. P. 3. [L. 21. tit. 4. P. 3.] 2d, By the non-exercise of it within the year by the person delegated, L. 35. tit. 18. P. 3. [L. 35. tit. 18. P. 3.] 3d, By the death of the person delegating, or of any of the parties before the commission is entered on (principiarse), L. 21. tit. 4. P. 3. [L. 21. tit. 4. P. 3.;] for the delegation once acted on is perpetuated, Hevia, ibid. n. 11. Of the delegation of the coroner or judge of inquest (juez pesquisidor), we will treat in the 11th title.

Arbitrators (arbitros) are mediating judges (jueces avenidores), who are chosen and appointed by the parties to decide the matter in dispute between them, L. 23. tit. 4. P. 3. [L. 23. tit. 4. P. 3.] These are of two kinds: the first named by the parties in order that they may determine according to law, and the others appointed by them

as friends to adjust or compose the matter that is submitted to them. Here we shall speak of the first.17

From what has been explained, the following axioms are derived. 1st, That the arbiter is in the place of the judge, although he is not properly so. 2d, That in order to be elected arbiter, the compromise or submission of the parties is required, and the acceptance of the person chosen. 3d, That the arbiter be bound to take cognisance of and decide, or give his award in the cause. 4th, That the parties are bound to obey the sentence or fulfil the award.

From the first principle it is inferred, 1st, That no person can be an arbiter who is subject to the legal impediments by which we have said a person is prevented from being a judge. 2d, That no one can be arbiter in his own cause, unless for an injury or insult, L. 24. tit. 4. P. 3. [L. 24. tit. 4. P. 3.] 3d, That the sentence given by an arbiter cannot be revoked by reason of his minority, 18 L. 5. tit. 4. P. 3. [L. 5. tit. 4. P. 3.] 4th, That the ordinary judge cannot be arbiter, except, indeed, to approve the submission or compromise of the parties, L. 24. tit. 4. P. 3. [L. 24. tit. 4. P. 3.] Carleval, dispuła 2. sect. 4. num. 1212.

From the second principle it follows, 1st, That all those who can bind themselves and alienate property, may compromise or submit to arbitration, Valeron de trans. tit. 4. quæst. 5. n. 1. 2d, That this compromise or reference should be accompanied with a certain conventional penalty, L. 26. tit. 4. P. 3.19 [L. 26. tit. 4. P. 3.] 3d, That [249] the arbitration bond (compromiso) be authorised by the signature of a public escribano, and set forth the suit which gives rise to the reference, the names of the arbiters, the mode in which they must proceed, and every thing necessary for the said purpose, L. 23. tit. 4. P. 3. [L. 23. tit. 4 P. 3.] 4th, That an arbitration or compromise is only valid with regard to a doubtful cause, Valeron, ibid. q. 4. and

17 Wood, in his Inst. Civ. Law, p. 326. book 4. cap. 3. says, there is an arbitrator and an arbiter; an arbitrator is, properly, a reconciler or moderator, according to equity and truth. Arbiter is the kind here treated of, and such as described in L. 4. tit. 17. lib. 11. Nov. Rec., as arbitro juris; and the other arbitrator, juez amigo, or arbitro arbitrador: both sorts are also distinctly treated of in the law quoted in the text, L. 23. tit. 4. P. 3. and a penalty is therein recommended to be inserted in the arbitration bonds for the performance of the award in both cases,

18 Because the parties have expressly consented to his appointment.

19 Vide also L. 23. tit. 4. P. 3. Though there is no penalty annexed to the submission, says Wood, Inst. p. 327. b. 4. c. 3. yet an action in factum will lie for the performance of it. Palacios, referring to Ll. 2. tit. 16. lib. 5.; and L. 4. tit. 21. lib. 4. Rec. (Ll. 1. tit. 1. lib. 10.; and 4. tit. 17. lib. 11. Nov. Rec.;) says, a compromise may be with or without a penalty, and the one is of equal validity with the other.

20 Perhaps this is more strictly with respect to transaccion, which is defined a concord, or agreement of an uncertain and doubtful suit, both litigants yielding up part of their pretences on each side; the case must be doubtful, and something must be given or done. If the matter is certain in its nature, a transaction upon it is null and void: Wood, Inst. C. L., p. 326. b 4. ch. 3. The law of the Nov. Rec. quoted, does not, by its letter, go to the length of the position in the text; but Azevedo, in his comment on the same, L. 4. tit. 21. lib. 4. Rec. n. 21. supports it, and says, that uncertainty is the substance of the transaction; and that arbitration (compromissum), is like unto it. Vide this last author on this law.

L. 4. tit. 21. lib. 4. Rec. [L. 4. tit. 17. lib. 11. Nov. Rec.] 5th, That compromise or arbitration with respect to public crimes or offences, and causes of matrimony is not valid, L. 24. tit. 4. P. 321 [L. 24. tit. 4. P. 3.] 6th, That those only can compromise or refer to arbitration who can sue; and, therefore, the minor must have the authority of his curator, L. 25. tit. 4. P. 3., [L. 25. tit. 4. P. 3.] and the proctor or judicial attorney (ú plcytos) a special power for the purpose, unless he have a full and absolute power to perform completely all things in the suit, L. 19. tit. 5. P. S. [L. 19. tit. 5. P. 3.] Valeron, tit. 4. q. 5. ú n. 8. ul 12.

Hence also it follows, 7th, That no one can be compelled by the ordinary judge to accept the appointment of arbiter, L. 29. tit. 4. P. 3. [L. 29. tit. 4. P. 3.] 8th, That a person may allege the following excuses for being exempted from this commission. 1st, The parties having moved the subject of arbitration before the ordinary judge. 2d, The parties having changed the arbiters. 3d, By reason of the injury or prejudice that may ensue to him. 4th, On account of being occupied in a public office or charge, or in the care of one's own property. 5th, On account of sickness, L. 30. tit. 4. P. 3. [L. 30. tit.

4. P. 3.

From the third principle it is inferred, that the arbiter must proceed according to the rules of law, in conformity to the powers which the parties shall give him, L. 26. tit. 4. P. 3. [L. 26. tit. 4. P. 3.] 2d, That sentence ought to be awarded on the cause of arbitration, and on no other, which is not accessary to it, in the place and within the term appointed, if the parties should not prorogue it; and if no particular time hath been agreed on, that of three years is understood according to law, Ll. 32. and 37. tit. 4. P. 3.22 [Ll. 32. and 37. tit. 4. P. 3.] 3d, That if any of the arbiters be absent, the others cannot determine the matter of reference without the fresh consent of the parties, L. 32. tit. 4. P. 3. [L. 32. tit. 4. P. 3.] 4th, That if the arbiters differ, a third person or umpire is chosen by the same parties, or by the ordinary judge, Ll. 26. and 29. tit. 4. P. 3. [Ll. 26. and 29. tit. 4. P. 3.] 5th, That the sentence or award pronounced by arbiters on a feast day (dia feriado) is not valid, unless [250] it were by those of the second class or arbitrators, L. 32. tit. 4. P. 3. [L. 32. tit. 4. P. 3.] 6th, That the causes being many, the arbiters may pronounce sentence on each in particular, unless the parties had • agreed to the contrary, L. 32. tit. 4. P. 3. al fin. [L. 32. tit. 4. P. 3.]

By the fourth principle it is established, 1st, That the parties must obey the award within the term that is prescribed by the arbiter, and if no term hath been prescribed, within four months under the penalty stipulated, L. 33. tit. 4. P. 3. [L. 33. tit. 4. P. 3.] 2d, That

21 This law adds those regarding banishment, liberty and slavery.

Palacios states, it is Law 27. tit. 4. P. 3., which says that the award should be made as soon as possible, so that it may not be prolonged beyond three years from the day of the submission of the arbitration. He adds, there is no L. 37, in the title of the Partida cited in the text, and he is borne out to the extent of his statement.

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the parties will be exempted from the payment of this penalty on account of being unable to comply with the award, by the lawful impediment of infirmity, royal service, &c:, L. 4. tit. 4. P. 3. [L. 4. tit. 4. P. 3.] 3d, That the award which is contrary to law, good customs, or is impossible to be fulfilled, or pronounced through subornation or enmity, or beyond the limits of the matter submitted, is not obligatory, Ll. 31. and 34. tit. 4. P. 3. [Ll. 31. and 34. tit. 4. P. 3.] 4th, That there is no appeal from the award, because whoever will not abide by it, is absolved from it by paying the conventional penalty; and if there be none agreed on, by signifying his dissent to the opposite party within ten days after the award is pronounced, L. 35. tit. 4. P. 3. [L. 35. tit. 4. P. 6.] 5th, That exclusively of these cases, the ordinary judge may compel the fulfilment of the award at the instance of any of the parties, L. 35. tit. 4. P. 3. [L. 35. tit. 4. P. 3.]

From all that has been said, it is inferred, 1st, That the office of arbiter is at an end by the death of any of the parties, unless the heirs be expressly bound by the submission, in which case the arbitration may be proceeded in with citation to them, [L. 28. tit. 4. P. 3. [L. 28. tit. 4. P. 3.] 2d, That the office is at an end by the civil or natural death of the arbiters, L. 28. tit. 4. P. 3 [L. 28. tit. 4. P. 3.] 3d, By the loss or destruction of the thing in dispute, L. 28. tit. 4. P. 3. [L. 28. tit. 4. P. 3.] 4th, By reason of the time allowed for the completion of the compromise, or reference having expired, L. 27. tit. 4. P. 3. [L. 27. tit. 4. P. 3.]

Cap. 8. Trial is the legal debate or controversy, and decision of a cause before and by a competent judge. Trials are divided principally, 1st, Into ordinary, extraordinary, and summary. Ordinary trial is that in which the proceeding is carried on according to the order and solemnities of law. Extraordinary is that which is carried on without this solemnity: summary is that when the process is carried on simply, briefly without the form or solemnity of law, Hevia, Cur. Filip. p. 1. § 8. num. 2. 2d, Trials are divided into civil, criminal, and mixed, [251] by reason of the cause: if this cause is merely civil, relative to the particular interest of the person, it is called a civil trial or suit (juicio civil): when the cause appertains to any crime, the trial is criminal: and it will be mixed if it participates of both civil and criminal. Lastly, a trial may be divided into petitory and possessory, accordingly as it may have for its object the possession or the property.

TITLE II.

OF THE DIFFERENCE OF JURISDICTION; AND OF COMPETENCY.

THERE often arises a doubt who is the legitimate and competent judge of the cause. The determination of this point depends on the knowledge of the nature and diversity of jurisdictions (fueros).

Cap. 1. Jurisdiction (fuero) is the place of trial where the right and justice of the parties who litigate are discussed, Hevia, Cur. Filip. p. 1. § 5. num. 1. Jurisdiction being secular and ecclesias- [ 252 ] tical, each has its peculiar jurisdiction (fuero)1 for the causes which belong to it; whence arises the distinction of ecclesiastical and secular jurisdiction, to which ought to be added the third species of mixed jurisdiction, regarding causes which belong to both jurisdictions; of which kind are the causes respecting the payment or non-payment of ecclesiastical tithes; respecting pious bequests, and the execution of testaments, if the year of the executorship hath passed by without their being fulfilled, Hevia, ibid. § 5. num. 13.

The rule is, that to the ecclesiastical jurisdiction belong spiritual causes, and those annexed to them; such are the causes relating to the right of patronage, tithes, first-fruits, marriages, burials, benefices, &c. L. 5. tit. 1. lib. 4. Rec.2 [L. 5. tit. 1. lib. 2. Nov. Rec]; it being observed that patrimonial suits, and other ecclesiastical ones relating to benefices, must be entertained in the audiences, L. 21. tit. 4. lib. 1. Rec.3; the reader is referred to Bobadilla in his Politica, lib. 2. c. 17 and 18, where he treats fully of the causes belonging to every kind of jurisdictions (fueros).

There are seven causes from which the diversity of jurisdictions (fueros) proceeds, and which render the judge competent for the cognisance of them.

1st, Domicile, so that any person may be sued before the judge of the place where he is found settled, L. 32. tit. 2. P. 3. [L. 32. tit. 2. P. 3.]

2d, Birth-place (patria), provided the defendant be not absent

1 It is difficult to find different words to express the meaning of jurisdiction and fuero. Jurisdiction, with us, means both legal authority, or power of judging, and the district or place to which that authority extends: in Spanish, the word jurisdiccion is used to denote the first, and fuero the latter. and fuero also means the tribunal of the judge.

2 Palacios says, this law is erroneously cited for L. 56, tit. 6. p. 1.

* Not inserted in the Nov. Rec. Palacios says it is erroneously cited for Aut. 2. tit. 6. lib. 1. Rec. (L. 4. tit. 21. lib. 1. Nov. Rec.)

4 Palacios says, L. 32. tit. 2. P. 3. points out fourteen causes; but that they are commonly reduced to four, which are domicile, contract, crime, and situation or place of thing.