out of the place agreed on (contratado), under pain of paying three times as much with the costs and damages (perjuicios), Ll. 42. 44. and 45. tit. 2. P. 3.12 [Ll. 42. 44. and 45. tit. 2. P. 3.,] and supposing that he should not establish all that he claims, the action will be valid with regard to what he shall prove, L. 48. tit. 2. P. 3. [L. 48. tit. 2. P. 3.]

If it shall happen that two persons shall institute a demand against a third, he who shall first cause the defendant to be cited shall be first heard; and if both shall institute it at the same time, the judge shall select him who appears to be best entitled in law, L. 6. tit. 10. P. 3. [L. 6. tit. 10. P. 3.] But when of two plaintiffs one shall demand the possession of the thing, and the other the seignory or property, the demand of the former shall be first entertained, unless the second offer immediately certain irrefragable proof of the dominion which he claims, L. 27. tit. 2. P. 3. [L. 27. tit. 2. P. 3.]

No demand can be instituted on feast days (dias de fiesta);13 nor can farmers or husbandmen be sued when they are employed in gathering in their crops or vintages, L. 33. to 39. tit. 2. P. 3. [L. 33. to 39. tit. 2. P. 3.;] neither can it be instituted before an escribano who is the brother of the plaintiff, L. 7. tit. 25. lib. 4. Rec. [L. 6. tit. 3. lib. 11. Nov. Rec.]

[264] With respect to the mode of instituting and conducting a suit or demand, reference must be had to the practical works of Paz, Villadiego, &c.14

12 Palacios says, there are four causes of excess of demand in regard to actions, viz. in repect to amount or quantity, time, place and manner, L. 42. tit. 2. P. 3. A plaintiff suing for more than is due to him, shall only recover what he shall prove to be actually due to him, and shall be condemned in damages and costs caused to the defendant by reason of the excess of demand, L. 43. tit. 2. P. 3., which doctrine is confirmed by Ll. 8. and 9. tit. 21. lib. 4. Rec. It may be remarked on the above statement, as to excess of amount due, that L. 43. tit. 2. P. 3. says, the plaintiff in such case shall be condeinned in the costs or expenses [costas 6 misiones are the words of the law, not daños y costas, as used by the Learned Professor,] occasioned to the defendant by reason of the excess of demand; and that L. 6. tit. 28. lib. 11. Nov. Rec. (L. 9. tit. 21. lib. 4. Rec. L. 8. ibid. not being inserted in Nov. Rec.) declares, the plaintiff who shall demand execution for more than was due to him shall pay double the amount of such excess (la demasia con otro tanto); and further, that before the writ of execution shall be granted, the judge shall swear the plaintiff as to the sum which is justly due to him, for which and no more, the execution is to be granted. With respect to excess as regards time, or, in other words, to suit in anticipation of time of payment, L. 45. tit. 2. P. 3., which relates to the point, punishes the premature plaintiff by granting to the defendant an extension of the original term of payment, equal to double the period of the anticipation of the action, and by condemning the plaintiff to pay the costs and expenses incurred by the defendant by reason thereof.

The triple penalty mentioned in the text is confined to cases in which the excess is considered as to place and manner. Vide L. 45. tit. 2. P. 3., cited.

13 Vide Appendix Y, also J and Q.

14 Palacios says, that the work called Curia Filipica is the one which is directed to be studied in the universities by the royal order of 5th Oct. 1802, [L. 7. tit. 4. lib. 8. Nov. Rec.], and that the work of the Conde de la Canada (Instituciones practicas de los Juicios civiles) is the most deserving of recommendation. He adds, that Elizondo, in his" Practica Universal,” and Febrero (who is cited so often with commendation), both also treat of these matters.

TITLE V.

OF CITATION AND CONTESTATION.

WHEN the plaintiff presents his demand by proctor or attorney, whose power has been examined and declared sufficient, he is furnished with the writ of citation or summons for the defendant to appear within the term of the law, L. 2. tit. 2. lib. 4. Rec. [L. 2. tit. 3. lib. 11. Nov. Rec.]

Cap. 1. Citation is the summons made to one to appear before the judge or to fulfil his order, L. 1. tit. 7. P 3. [L. 1. tit. 7. P. 3.]

If the citation should be within the limits (puertos) of the place of the council or audience, the person cited has the peremptory term [265] of thirty days to appear to the suit; and forty if the citation should be beyond the limits: although the judges may prorogue and shorten the term according to the quality of the person, cause, demand, distance, &c., Ll. 1. and 2. tit. 3. lib. 4. Rec., [Ll. 12 and 13. tit. 4. lib. 11. Nov. Rec.] provided they do not do it maliciously, L. 9. tit. 7. P. 3. (L. 9. tit. 7. P. 3.] ·

Regularly citations are made by messengers (porteros) and others whose office it is to cite. They cannot cite without the order of the judge, and if it be without the place, the order must be given in writing, for not being so, the citation is null, and they ought to pay the costs and prejudices, L. 3. tit. 3. lib. 4. Rec. [L. 14. tit. 4. lib. 11. Nov. Rec.]

On the nature of citation it is established, 1st, That the parties must be cited who have an immediate interest in the cause, and it is not necessary1 to cite those who have only a mediate interest in it, Hevia, p. 1. § 12. ú n. 3. ul 8. 2d, That the citation must be made or served on the party in person if he can be met with, and not being to be met with it will be sufficient to serve it in his house, giving notice of it to his wife, his children, servants, &c., and if the defendant have no house, he must be cited by edict or proclamation (pregon,) L. 1. tit. 7. P. 3. [L. 1. tit. 7. P. 3.] 3d, That if the defendant shall be found in the limits of another jurisdiction, the judge may issue his warrant requisitorial (requisitoria) and writ of summons, in order that he may be commanded to appear, L. 7. tit. 3. lib. 4. Rec. [L. 3. tit. 4. lib. 11. Nov. Rec.] 4th, That if he who hath cited shall not appear by himself or by his attorney, he must pay the

But it will be useful, observes Palacios, referring to Hevia cited (which is the work usually called Curia Filipica), and to Febrero (Reformado), p. 2. lib. 3. cap. 1. § 3. num. 106. See Append. Q. and R, as to trial and rules in respect to civil suits.

costs and damages to the person cited, and besides one hundred maravedis, L. 5. tit. 3. lib. 4. Rec. [L. 6. tit. 4. lib. 11. Nov. Rec.] 5th, That through respect and decency, women (mugeres) must not be cited to present themselves before the judge,2 L. 3. tit. 7. P. 3. [L. 3. tit. 7. P. 3.] 6th, That a woman cannot be cited before the judge who wished to use violence towards her, or to be married to her without her consent, L. 6. tit. 7. P. 3. [L. 6. tit. 7. P. 3.]

The effects of citation are, 1st, That by it the judge acquires exclusive cognisance of the cause, L. 12. tit. 7. P. 3. [L. 12. tit. 7. P. 3.] 2d, That the defendant must present himself personally or by attorney before the judge who cited him, L. 2. tit. 7. P. 3. [L. 2. tit. 7. [266] P. 3.;] therefore citations for the person cited to appear personally are not universally obligatory, L. 15. tit. 3. lib. 4. Rec.3 [L. 8. tit. 4. lib. 11. Nov. Rec.] 3d, That the person cited is excused from appearing, and does not incur contumacy, being lawfully prevented by sickness, the event of a voyage or journey, urgent occupation in the service of the king, being at weddings or funerals of his relations and friends, Ll. 2. and 11. tit. 7. P. 3. [Ll. 2. and 11. tit. 7. P. 3.] 4th, That the alienation of the property or thing respecting which citation hath been made is null, except it hath been alienated or transferred by last will, for the establishment of dote, or, if belonging to many or several, some of them should desire to alienate it to the others; but in all these cases he to whom the thing is transferred must answer the demand, Ll. 13, 14. and 15,4 tit. 7. P. 3. [Ll. 13,14, and 15. tit. 7. P. 3.] 5th, That he who shall conceal the thing sued for, ought to pay the damage or deterioration the plaintiff shall swear to, L. 19. tit. 2. P. 3. [L. 19. tit. 2. P. 3.]

Cap. 2. When once the defendant hath been cited and the demand hath been notified to him, he must reply or plead to it (contestarle), admitting or denying within nine continuous days, and otherwise he is held as contumacious and confessed, L. 1. tit. 4. lib. 4. Rec. [L. 1. tit. 6. lib. 11. Nov. Rec.]

But this penalty does not take place with respect to the plaintiff who hath not contested the demand which the defendant hath filed

2 This is understood as to civil suits, for, in respect to criminal causes, women may be summoned, and must appear personally, L. 3. tit. 7. P. 3. Palacios (2). See Append. 1, K, Q. and R.

3 See the law cited.

4 L. 15. tit. 7. P. 3. This law goes further, and renders null any alienation made in anticipated apprehension of citation.

5 In which feast days are counted.

Vide tom. 1. Colom. de Escrib. p. 30. But with respect to feast days in Trinidad, see Order in Council, 18th May, 1822, Append. Y. also Q and R.

6 This is not strictly followed. The rule is, that, after three days have elapsed from notification of the demand, the defendant is accused of contumacy, and again, after the expiration of other three days, and then a petition is filed by the plaintiff, praying the demand may be declared contested, and the cause received to proof, tom. 1. Colom, de Escrib. p. 30. See Append. Q and R.

against him by way of reconvention," L. 3. tit. 4. lib. 4. Rec. [L. 4. tit. 6. lib. 11. Nov. Rec.]

8

Contestation may be made even on holydays (dias feriados), (although the defendant is not bound to do so, L. 6. tit. 3. P. 3. [L. 6. tit. 3. P. 3.]) in any place where the judge may be found, and before the escribano of the cause, who shall have written or enrolled the demand (que tenga escrita la demanda); and if he should not have written it, before any other escribano, L. 2. tit. 4. lib. 4. Rec. [L. 3. tit. 6. lib. 11. Nov. Rec.]

After contestation issue is joined (ya trabada la litis); by which the parties cannot revoke the demand or answer which they shall have given, L. 2. tit. 10. P. 3. [L. 2. tit. 10. P. 3.]

If the defendant shall not appear within the term, besides paying the costs and prejudices according to L. 8. tit. 7. P. 3. [L. 8. tit. 7. P. 3.,] the plaintiff is at liberty to proceed with the cause, presenting his proofs unto definitive sentence; or he may also elect to be put into possession of property of the defendant (la via de asentamiento), L. 2. tit. 11. lib. 4. Rec. [L. 2. tit. 5. lib. 11. Nov. Rec.] Asentamiento is to put a man in quiet possession of some part of the property of the person who hath been cited,10 L. 1. tit. 8. P. 3. [L. 1. tit. 8. P. 3.]

If the demand or suit were real, the demandant is put in [267] possession of the property in demand, nevertheless the defendant is allowed the term of two months in which to purge his contumacy; so that not appearing within this term, the plaintiff is not obliged to answer the defendant but with respect to the question of dominion over the property.

If the demand is personal, the possession of movable property is delivered to the plaintiff; and if the defendant have none, of his real property to the amount of the debt; and he is only allowed the term of one month in which to purge his contumacy. In this last case the plaintiff may retain possession, or pray that such property may be sold to the effect of his being paid, L. 2. tit. 8. P. 3. and L. 1. tit. 11. lib. 4. Rec. [L. 2. tit. 8. P. 3. and L. 1. tit. 5. lib. 11. Nov. Rec.], which alters Ll. 6. and 7. tit. 8. P. 3.

It must be observed, 1st, That the plaintiff abandoning the via de asentamiento, may elect the mode of proof, although it be against a minor, L. 3. tit. 11. lib. 4. Rec. [L. 3. tit. 5. lib. 11. Nov. Rec.] 2d,

7 See the difference of reconvention and compensation, Wood, Civ. Law, book 3. c. 9. p. 269. • Quære? on such in honorem Dei. Vide Azevedo in L. 2. tit. 4. lib. 4. Rec. No. 2. et seq.; vide Append. Y, Q, and R.

Before the escribano of the cause," these words are added as collected from L. 3. tit. 6. lib. 11. Nov. Rec., cited.

10 Add, on account of his contumacy. Vide the law quoted in the text. Asentamiento, according to Febr. Adic. tom. 2. Part. 1. p. 30. n. 56. ed. 6. Madrid, 1808, though permitted, is not practised. It may be considered the prætorian mortgage of the Romans

VOL. I.-38

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 (á 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.