TITLE VIII.

OF SENTENCE.

CAP. 1. SENTENCE is the order or decree which the judge may [ 288] make with respect to any of the parties by reason of the suit which they prosecute before him, L. 1. tit. 22. P. 3. [L. 1. tit. 22. P. 3.] It is distinguished by interlocutory and definitive, the former is given upon a certain incidental matter of the suit, and not upon the principal demand; the latter is that which puts an end to the suit, absolving or condemning the defendant, L. 2. tit. 22. P. 3. [L. 2. tit. 22. P. 3.;] wherefore the first may be altered or amended before definitive sentence and may be given in writing or verbally, L. 2. tit. 22. P. 3. [L. 2. tit. 22. P. 3.] The second as an object of administration, is found to be established on the following principles. 1st, That the sentence must be given by the judge. 2d, That it must be conformable to law and to the proceedings. 3d, That by it an end is put to the suit. 4th, That once given it must be published and solemnly pronounced. [289] 5th, That having passed into a thing adjudged (cosa juzgada) it is firm and valid.

From the first principle it is inferred, 1st, That the sentence alone is valid which is given against a person subject to the jurisdiction of the judge, Ll. 12, and 15. tit. 22. P. 3. [Ll. 12, and 15. tit. 22. P. 3.] 2d, That it is not valid against a dead person, except in the case of treason, regarding the bad reputation of a person, &c., L. 15. tit. 22. P. 3. [L. 15. tit. 22. P. 3.] nor against a spiritual thing, a person under twenty-five years of age, one non compos mentis, &c., without their curator, except it were favorable, L. 12. tit. 22. P. 2. [L. 12 tit. 22. P. 3.] 3d, That if many judges be required to pass sentence or give judgment, it is not valid if one be absent, L. 17. tit. 22. and L. 4. tit. 26. P. 3. [L. 17. tit. 22. and L. 4. tit. 26. P. 3.] 4th, Nor if there be a disagreement with respect to acquittal, although in a criminal cause the judgment of those who acquit will avail,' L. 18. tit. 22. P. 3. [L. 18. tit. 22. P. 3.] 5th, That if the sentence should turn upon the determination of quantity, that given for the lesser sum will be valid,2 because all agree upon that, L. 17. tit. 22. P. 3. [L. 17 tit. 22. P. 3.] 6th, That the sentence of him who cannot be a judge, or who has not authority to give it, is not valid, L. 12. tit. 22. P. 3. [L. 12. tit. 22. P. 3.] 7th, That if the judge entertain a doubt with respect to the decision, he may refer the cause to the Superior Court, citing the

1 In favor of liberty, life. &c., but then the number in these cases must at least be equal, for the law quoted (L. 18.) says, that the plurality of opinions shall determine the question of acquittal or condemnation.

This also requires an equality of votes in the judges. Vide L. 17. tit. 22. P. 3. quoted.

parties, in which interval, if the judge who referred it hath given sentence, it will be valid, L. 11. tit. 22. P. 3. [L. 11. tit. 22. P. 3.]

From the second principle it follows, 1st, That the sentence given upon a thing not demanded or prayed for is not valid; and thus if a person demand generally a horse, and the judge points out or specifies one, it is not valid, L. 16. tit. 22. P. 3. [L. 16. tit. 22. P. 3.] 2d, That it must be conformable to the terms of the demand, and what is there alleged and proved, L. 16. tit. 22. P. 3. [L. 16. tit. 22. P. 3.] but sentence may be given without the whole truth appearing, in the cases expressed by L. 7. tit. 22. P. 3. [L. 7. tit. 22. P. 3.] and in these it is to be observed that the party is condemned in costs, if he was actuated by malice,3 L. 8. tit. 22. P. 3. [L. 8. tit. 22. P. 3.] 3d, That the sentence against law, justice, or good manners is null, and there is no necessity for an appeal in order to set it aside, Ll. 1, and 12. tit. 22. [Ll. 1. and 12. tit. 22.] and L. 3. tit. 26. P. 3. [L. 3. tit. 26. P. 3.] 4th, That the judges in giving sentence regard the truth which appears from the proceedings, and not the want of matters of forms and order of process or trial, L. 10. tit. 17. lib. 4. Rec. [L. 2. tit. 16. lib. 11. Nov. Rec.] 5th, That the inferior judges cannot have reporters (relatores); and must themselves see the proceedings, and not decide by the report of the escribano, unless the parties are present, L. 27. tit. 17. lib. 2. Rec. L. 6. tit. 9. lib. 4. Rec. [L. 3. tit. 16. lib. 11. Nov. Rec.]

[290] From the third principle it is deduced, 1st, That the sentence must be certain and just, L. 3. tit. 22. P. 3. [L. 3. tit. 22. P. 3.;] and thus the quantity must be expressed, or at least with relation to that which is written in the proceedings, L. 16. tit. 22. P. 3. [L. 16. tit. 22. P. 3.] 2d, That the party must be condemned or acquitted, L. 15. tit. 22. P. 3. [L. 15. tit. 22. P. 3.] 3d, That it is not valid when pronounced conditionally," (por condicion), or on security (fianzas), L. 14. tit. 22. P. 3. [L. 14. tit. 22. P. 3.] 4th, That judges in giving sentence with respect to the condemnation of fruits (frutos), must estimate them, L. 52. tit. 5. lib. 2. [L. 6. tit. 16.] and L. 2. tit. 9. lib. Rcc. 3. [L. 6. tit. 1. lib. 11. Nov. Rec.]

3 The general rule as to costs is, that the vanquished party shall be condemned to pay them, unless he had just cause of litigating, the decision of which is at the discretion of the judge. Vide, as to costs, Faria, add. ad. covarrub. tom. 3. c. 27. p. 165., and particularly n. 1-11. 151. 3.-10. 28. 32.; Teatro de la Leg. de Esp. é Ind. tit. 5. Condenaciones; Febrero Ad. tom. 6. p. 518, 519. n. 372. Ll. 39. 42, 43, and 45. tit. 2. L. 10. tit. 3. 8, 9, and 10. tit. 22. Part. 3., and tit. 19. lib. 11. Nov. Rec.; also Curia, Fil. p. 44. n. 5. and p. 48. n. 25. As to costs on appeal, vide L. 27. tit. 23. P. 3. Greg. Lop. gl. 3. ibid. and as to requiring security for costs where plaintiff has no real property in the jurisdiction, vide L. 41. tit. 2. Part. 3., also Febrero, Adic. tom. 3. p. 238. n. 20.

4 Quære.

5 But they attend to the want of matters of substance, such as want of citation, defect of proof, &c. Palacios, (2) to this effect.

Not in Nov. Rec. Palacios says it should be L. 17. tit. 17. lib. 2. Rec. [L. 3. tit. 16. lib. 11. Nov. Rec.]

Palacios says, it is valid, though the judge ought not so to pronounce it, if not ap pealed from, and will in such case pass into the authority of a case adjudged (cosa juzgada). If appealed from for the reason in question, the court of appeal may revoke it on such ground. The learned Professor refers to L. 14. tit. 22. P. 3. cited in the text.

On the fourth principle, it is established, 1st, That the definitive sentence ought to be pronounced, on the petition of the party, within twenty days, and the interlocutory within six, under a penalty of fifty maravedis to the exchequer (camara), and payment of costs 10 and damages, L. 1. tit. 17. lib. 4. Rec. [L. 1. tit. 16. lib. 11. Nov. Rec.] 2d, That before it is pronounced, citation should be made to the parties, to hear it within the time appointed by the judge; and if only one of them shall attend or obey, it shall be given in clear or intelligible words, and shall be read," L. 5. tit. 22. P. 3. [L. 5. tit. 22. P. 3.] 3d, That although the plaintiff be absent, the term appointed for proof having expired, the judge may pronounce definitive sentence, according to the merits of the proceedings; and if this hath not expired, he may decide upon other points and costs, but not on the demand, so that the plaintiff afterwards appearing, shall be able to institute a new demand; but without availing himself of the proofs adduced in the first suit, L. 9. tit. 22. P. 3. [L. 9. tit. 22. P. 3.] 4th, That if the defendant does not obey, and the term hath expired, the judge gives sentence; and although he may absolve or acquit him, he shall pay the costs for his contumacy or default, L. 10. tit. 22. P. 3. [L. 10. tit. 22. P. 3.] 5th, That the sentence must be written, unless it be with respect to a cause of ten thousand maravedis, and under, which the judge shall be allowed to pronounce verbally, Ll. 6. and 12. tit. 22. P. 3. [Ll. 6. and 12. tit. 22. P. 3.;] and with respect to the mode in which vidors must vote and write their sentences, L. 42. et seq. tit. 5. lib 2. Rec. treat. [L. 40. tit. 1. lib. 5. Nov. Rec.] 6th, That the sentence must be pronounced at a time not prohibited, and in a decent or proper place, L. 12. tit. 22. P. 3. [L. 12. tit. 22. P. 3.]

From the fifth principle, it arises, 1st, That the sentence may pass into a thing adjudged within sixty days, in which term the party may allege nullity, and from the sentence given thereon, a supplication or appeal12 may be had, but the party is not allowed to allege nullity a second time; L. 2. tit. 17. lib. 4. Rec. [L. 1. tit. 18. lib. 11. Nov. Rec.] declaring that in suits of fifteen hundred maravedis, and the law of Toro that from sentences which shall be given [ 291 ] in the audiencias on revision (á revista), or from which there is no appeal, nullity cannot be alleged at any time; and that the nullity which shall be alleged against a sentence in a cause of first cognisance (de vista), or on revision (revista), from which there shall be a supplication in that of fifteen hundred (de mille y quinientas),

8 After the conclusion of the proceedings or suit.

9Fifty thousand, according to L. 1. tit. 17. lib. 4. Rec. (L. 1. tit. 16. lib. 11. Nov. Rec.) Palacios (2).

10 Which shall be doubled (dobladas), according to the law quoted.

When this law was enacted, the lawgiver contemplated the possibility of a person being appointed a judge who could not read, or perhaps was blind; for it says, the sen. tence shall be read publicly by the judge if he can read; and if he does not know how, by some other person for him.

12 As to appeal and the rules in respect thereto, see Append. T and Z, also Q.

VOL. I.-41

must be treated of, or discussed together with the principal matter, L. 4. tit. 17. lib. 4. Rec. [L. 2. tit. 18. lib. 11. Nov. Rec.]

2d, That the above mentioned term having expired, the sentence cannot be revoked, unless it were given through false proofs, L. 13. tit. 22. P. 3. [L. 13. tit. 22. P. 3.;] in which case it may be revoked within twenty days,13 after the expiration of which it becomes firm and irrevocable, L. 12. tit. 26. P. 3. [L. 12. tit. 26. P. 3.]

3d, That the sentence is revoked for being contrary to law, or for manifest nullity, and for want of formalities prescribed by law, Ll. 3, 4, and 5. tit. 26. P. 3. [Ll. 3, 4, 5, tit. 26. P. 3.]

4th, That it may be set aside on account of a fine being imposed on one who is not able to pay it, L. 4. tit. 22. P. 3. [L. 4. tit. 22. P. 3.]

5th, On account of restitution being demanded; which the attorneys or guardians of a minor may do, citing the opposite party; by power or force of which restitution, nothing is done or pursued in the cause: and if the suit commenced while the person was a minor, and sentence hath been given after his majority, restitution does not take place, L. 2. tit. 25. P. 3. [L. 2. tit. 25. P. 3.] This must be demanded before the judge who gave the sentence, or his superior, showing that there was error, and that new proofs have been discovered, L. 3. tit. 25. P. 3. [L. 3. tit. 25. P. 3.;] and it must be granted, although the curators pursue the cause, if they did not appeal, L. 1. tit. 25. P. 3. [L. 1. tit. 25. P. 3.] But there is no restitution against sentences, from which no supplication lies, L. 11. tit. 17. lib. 4. Rec. [L. 5. tit. 13. lib. 11. Nov. Rec.]

6th, That the defendant being acquitted and declared free from the demand, this sentence cannot be revoked, unless a right to do so hath been reserved, L. 9. tit. 22. P. 3.15

Hence it follows, 7th, That no one can abrogate or reform the sentence, but the king; and if the judge has not decreed with respect to the costs and fruits, he may correct it within the day, and not afterwards, L. 3. tit 21.16 P. 3. [L. 3. tit. 22. P. 3.]

8th, That the sentence of arbitrators given against that of the judge, may be revoked, L. 4. tit. 22. lib. 4. Rec. 17

9th, That the cause of nullity against the sentence must be conducted before the judge who gave it, although it be appealed from,18

13 Read years.

14 Or, according to Palacios and to L. 3. tit. 25. P. 3., cited in the text.

15 This law does not apply. See the law cited which relates to the case of nonsuit, and regulates the payment of costs by plaintiff in bringing new suit or action. Palacios here observes that it is not intelligible whether the text means the demand or the sentence cannot be revoked. He also refers to the law there cited.

16 Tit. 22. Palacios (1).

17 This law is not inserted in the Nov. Rec. Palacios says, L. 4. tit. 21. lib. 4. (L. 4. tit. 17. lib. 11. Nov. Rec.) is meant.

18 Palacios says, it must be before the judge of appeal, unless, as is stated in the text, the right should have been reserved to argue it before the judge who pronounced it; and that it is stated by Canada, Inst. Prac. Juic. Civ. P. 2. Č. 1. to be most suitable for all parties to submit the nullity and the appeal together as principals, in order that they may

if the right of opposing the said exception hath been reserved to the party, L. 2. tit. 26. P. 3. [L. 2. tit. 26. P. 3.]

Cap. 2. The sentence then having passed into a thing [292] adjudged, 1st, It ought to be carried into execution within ten days, if it is with respect to a debt; and if with respect to dominion or in a criminal matter, without delay,19 L. 5. tit. 27. P. 3. [L. 5. tit. 27. P. 3.,] so that no one can impede its execution under pain of losing his property, L. S. tit. 17. lib. 4. Rec. [L. 2. tit. 17. lib. 11. Nov. Rec.]

2d, The same persons who gave the sentence, or their superiors, ought to order its fulfilment, and if the property was situate in another part, the fulfilment belongs to the judge of that jurisdiction, L. 1. tit. 17. lib. 4. Rec. [L. 1. tit. 16. lib. 11. Nov. Rec.]

3d, The sentence confirmed by the superior judge must be executed by the judge who gave it, L. 6. tit. 17. lib. 4. Rec. [L. 1. tit. 17. lib. 11. Nov. Rec.]

4th, If the condemnation comprehends the payment or performance of the entire debt or thing by many or several persons, it is executed on the property of either of them, and if it does not so, the execution must be levied on the property of all proportionably (por partes), L. 4. tit. 17. lib. 4. Rec. [L. 2. tit. 18. lib. 11. Nov. Rec.]

5th, The sentence given by arbitrators (arbitros), must be executed by the judge before whom execution shall be prayed, the judge acknowledging the legitimacy thereof, L. 4. tit. 21. lib. 4. Rec. [L. 4. tit. 17. lib. 11. Nov. Rec.]

Vide Order

be discussed and decided at the same time in the superior or appeal court. in Council, 16th September, 1822, cl. 5. Appendix, appointing a new court for the trial of civil matters at Trinidad, adopting this course of procedure. App. Q.

19 Palacios says, the judge may enlarge the time. He refers to L. 17. tit. 3. P. 3. L. 5. tit. 27. P. 3. and L. 31. D. de re judicat, and cap. 15. extra eodem, tit.