TITLE IX.

OF APPEAL AND SUPPLICATION.

[293] CAP. 1. IN order that parties may not receive prejudice through the malice or ignorance of judges, the remedy of appeal1 hath been invented, which is the complaint that any of the parties prefers against the sentence or decision given against him, calling for and having recourse to the redress of the superior judge, L. 1. tit. 23. P. 3. [L. 1. tit. 23. P. 3.] On the nature of appeal, three principles are founded; 1st, That it must be interposed from an inferior to a superior judge. 2d, That those who feel themselves aggrieved, may appeal. 3d, That it must be lawfully interposed, conducted, and prosecuted. From the first principle it is inferred, 1st, That an appeal may be made from any of the ordinary and delegated judges, but not from the supreme tribunals, by reason of their excellence and superiority, L. 17. tit. 23. P. 3. [L. 17. tit. 23. P. 3.] Thus, therefore, according to our law, the appeal is from the ordinary judges to the audiences or chanceries of the districts in which they are established, L. 12. tit. 5. lib. 2. Rec. [L. 10. tit. 1. lib. 5. Nov. Rec.,] and from the ordinary judges of towns and incorporated places (lugares de las ordenes) to the corporate body or council thereof. Those which are interposed from the governor or lieutenant of Madrid, being of the mere amount of 1100 maravedis, go to the chamber or hall of appeals of the alcaldes, and may be carried to the council, if it should be judged fit, Aut. 3. tit. 18. lib. 4. [L. 21. tit. 20. lib. 11. Nov. Rec.] Lastly, appeals in causes of ten thousand maravedis and under, in places where such custom shall exist, are carried to the cabildo of the place, who ought to appoint two regidors, in order that with the judge from whom the appeal is made, they may determine the cause within thirty days; so that these having expired, they have, notwithstanding, ten days more to decide according to the tenor of L. 7. tit. 18. lib. 4. Rec. [L. 8. tit. 20. lib. 11. Nov. Rec.]

2d, That the appeal must be interposed from the inferior judge to the immediate superior judge, or also before the superior tribunal, even in parts where there are lordships (tierras de señorio), Ll. 14. and 18. tit. 18. lib. 4. L. 1. tit. 1. lib. 4. Rec. [Ll. 7. and 8. tit. 20. lib. 11. and L. 1. tit. 1. lib. 4. Nov. Rec.,] although the appeal from arbitrators (arbitros) may be interposed before the inferior judge, or even before the prince, according to L. 4. tit. 21. lib. 8. Rec., which in this part alters L. 17. tit. 21. lib. 8. Rec.3

1 See Append. T. and Z.

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

3 This law is not in Nov. Rec.

3d, That the appeal from the delegated judge goes to the [294] one delegating him, L. 21. tit. 23. P. 3. [L. 21. tit. 23. P. 3.]

From the second principle, it is inferred, 1st, That all may appeal from the sentence who shall find themselves aggrieved by it, and those to whom prejudice results from it, and the guardian for his ward, &c., Ll. 2, 3, and 4. tit. 23. P. 3. [Ll. 2, 3, and 4. tit. 23. P. 3.] 2d, That the appeal interposed by one of the co-parties to a suit, profiteth the others comprehended in the same sentence, L. 5. tit. 23. P. 3. [L. 5. tit. 23. P. 3.]

3d, That the person in whose favor the sentence has been given, may appeal if he considers that it is not so complete and favorable as it should be, L. 9. tit. 23. P. 3. [L. 9. tit. 23. P. 3.]

4th, That if the sentence in a civil cause contains different divisions or points (capitulos), the appeal may be made from some of them leaving the others, and the like has place with respect to a sentence given in a criminal cause, which may comprehend different offences and penalties, L. 14. tit. 23. P. 3. [L. 14. tit. 23. P. 3.]

5th, That an appeal may be interposed only from a definitive sentence, but not from an interlocutory one, unless it have the force of a definitive one, or also cause an irreparable injury and prejudice in the principal suit, such as the sentence for torture, &c., L. 13. tit. 23. P. 3. and L. 3. tit. 18. lib. 4. Rec. [L. 13. tit. 23. P. 3. and L. 23. tit. 20. lib. 11. Nov. Rec.]

The third principle embraces the following dispositions, according to Spanish jurisprudence. 1st, That in suits of four hundreds maravedis, and under, there is no appeal, L. 19. tit. 9. lib. 3. Rec. [L. 8. tit. 3. lib. 11. Nov. Rec.] 2d, That it is not granted with respect to a thing which cannot be kept or preserved, and which does not admit an appeal, ex. gr. the appointment of a guardian, &c., L. 6. tit. 18. lib. 4. Rec. [L. 22. tit. 20. lib. 11. Nov. Rec.]

3d, That the judge who shall deny or refuse it, shall pay thirty thousand maravedis, L. 13. tit. 18. lib. 4. Rec. [L. 24. tit. 20. lib. 11. Nov. Rec.]

4th, That the appeal may be interposed within five days after notification of the sentence, for otherwise it passes into or becomes a thing adjudged (cosa juzgada), L. 1. tit. 18. lib. 4. Recop. [L. 1. tit. 20. lib. 11. Nov. Rec.]; but this rule admits of some exceptions. 1st,

4 See Append. F.

5 1000 maravedis by L. 8. tit. 3. lib. 11. Nov. Rec.

the same principle governs in summary decisions by the Complaint Court in Trinidad, in suits amounting to 1000 dollars. Vide Append. V, W, X.

7 Except in suits relating to royal rents or revenues. Vide L. 24. tit. 20. lib. 11. Nov. Rec.

* And by this law the day of notification was included in the five days: but the proclamation of 19th of June, 1813, App. T. hath extended this period to fourteen days after sentence, which allows appeals in all civil causes from the inferior courts to the governor, provided the sum in dispute exceeds 2001. sterling; and from the sentence of the governor to H. M. in his privy council in like causes, where the sum in dispute exceeds 5001. sterling.

That minors, or those entitled to the same consideration or privilege, ex. gr. the fisc, churches, corporations, &c., claiming restitution, may appeal until four years, Ll. 1. 8, 9, and 10. tit. 19. P. 6. [Ll. 1. 8, 9, and 10. tit. 19. P. 6.]

2d, That the term for appealing does not run against those occupied in the service of the king, or those who are in captivity, on a pilgrimage, at school or the university, or banished and detained by force, until the impediment hath ceased or been removed, Ll. 10,11, and 12. tit. 23. P. 3. [Ll. 10, 11, and 12, tit. 23. P. 3.]

10

[295] 3d, That from the sentence of arbitrators, the appeal must be made, or reduction prayed within ten days," L. 23. tit. 4. P. 3. [L. 23. tit. 4. P. 3.]

4th, That immediately after the notification of the sentence, the appeal may be made by word or viva voce; but if any time hath elapsed, it must be made in writing; expressing the cause of appeal or injury, the sentence from, to, and against whom the appeal is made, and this before the judge who hath given the sentence; and, in his absence, before the escribano and witnesses, L. 22. tit. 23. P. 3. [L. 22. tit. 23. P. 3.]

6th, That the appeal has two effects; the one suspensive1 (suspensivo), and the other devolutive (devolutivo): the first suspends the jurisdiction of the judge à quo; the second devolves the cognisance of the cause to the superior court; and thus an appeal interposed in a case prohibited by law, only produces the second effect, and not the first; for which reason the judge à quo, may, without exceeding his authority, proceed to the execution of the sentence, Hevia, Cur. Filip. p. 5. § 1. n. 19. and 20.

7th, That the appellant is bound to present himself in the state of appeal before the superior judge, and prosecute it within the time appointed by the judge à quo, or inferior court; and none being appointed by him, the period shall be forty days,13 for beyond the port or city (puertos), and if within it, fifteen days; in which holy days, or days on which the tribunals are closed (dias feriados) are reckoned, Ll. 23. and 24. tit. 23. P. 3. and Ll. 2. and 15. tit. 18. lib. 4. Rec.;

9 Restitution is the reducing a thing into its first state, where an appeal has been neglected. Vide Wood, C. L. Ch. 3. book, 4. p. 321. and L. 1. tit. 19, P. 6.; and this privilege extends to four years after the minor hath attained to majority. Vide L. 8. tit. 19. P. 6.

10 There are causes of impediment which will entitle the party to this benefit; among them, sickness, &c. Vide L. 12. tit. 23. P. 3. But this benefit is granted with some qualification or limitation, as in the case where there is a proper representative of the party under power of attorney. Vide Ll. 10. and 11. tit. 23. P. 3. quoted in the text. 11 Vide L. 4. tit. 17. lib. 11. Nov. Rec.

12 The suspensive effect is the cognisance which the superior court takes of the sentence or decree of the judge à quo, or inferior court, suspending the execution of it. The devolutive is the cognisance which the superior court takes of the decree or sentence of the inferior, without suspending the execution of it. Vide also Vol. 7. Febr. Adic. Part. 2. lib. 3. c. 1. § 13. p. 250. n. 489. Paz, Prax. tom. 1. p. 6. n. 11. and 12. p. 261.

13 The anterior law, viz. L- 23. tit. 23. P. 3. had made it two months.

[Ll. 23. and 24. tit. 23. P. 3. and L. 3. and 4. tit. 20. lib. 11. Nov. Rec.] and not doing so, the appeal remains deserted, and the sentence appealed from shall be valid," L. 23. tit. 23. P. 3.

8th, That it is sufficient for the appellant to present himself with a certificate (testimonio) of the appeal, L. 10. tit. 18. lib. 4. Rec., [L. 18. tit. 20. lib. 11. Nov. Rec.] although L. 2. tit. 18. lib. 4. Rec. [L. 3. tit. 20. lib. 11. Nov. Rec.] says, that it must be with the whole process;15 and this certificate must be set forth with all precision and clearness, L. 10. tit. 18. lib. 4. Rec. [L. 18. tit. 20. lib. 11. Nov. Rec.]

9th, That on presenting the certificate, an order or warrant (compulsorio) is given to transcribe a copy of the process at the cost of the appellant, Pareju, tit. 3. resol. 1. à n. 29. al 42., except in some cases, as in appeals to the cabildo, L. 7. tit. 18. lib. 4. Rec., [L. 8. tit. 20. lib. 11. Nov. Rec.] in that of L. 16. tit. 8. lib. 2. Rec., [L. 2. tit. 29. lib. 4. Nov. Rec.] in those of the alcaldes, and in that of L. 28. tit. 20. lib. 2. Rec. [L. 18. tit. 24. lib. 5. Nov. Rec.]

10th, That the appellant must pursue and finish the cause of appeal, or second instance, within a year from the time he hath appealed, L. 11. tit. 1S. lib. 4. Rec.16 [L. 5. tit. 20. lib. 11. Nov. Rec.]

11th, That the appeal being interposed, all that has been done by the judge à quo is revoked, and undone as null," Ll. 26. and 27. tit. 23. P. 3. [LI. 25. and 27. tit. 23. P. 3.]

12th, That in the second instance the parties may allege that which hath not been alleged, and give proof of that which hath not been proved; but proof is not admitted upon the same points, or [296] those directly opposite to those adduced in the first instance, L. 4. tit. 9. lib. 5. Rec. [L. 6. tit. 10. lib. 11. Nov. Rec.;] unless it he admitted by way of restitution; or if both parties themselves offer to prove; or if the witnesses presented in the first instance were not examined,18 Cur. Filip. p. 5. § 3. n. 4.

14 Vide to the same effect, L. 3. tit. 20. lib. 11. Nov. Rec.

16 The fifth rule established by Court of Appeal, Trinidad, 16th Feb. 1814. directs "that in all civil causes of appeal where the same may be granted in the devolutive effect, the party appellant shall lodge in the tribunals an authenticated copy of the proceedings, and the sixth rule, "That in all civil causes of appeal in the suspensive effect; the original autos (or proceedings) will be delivered by the escribano of the respective ordinary tribunals to the escribano of the tribunal of appeal, the former certifying on the last page of the autos the whole number of pages contained therein. Vide Append. Z. and T.

16 The year limited by this law for prosecuting and finishing the appeal, does not interfere with the provision of L. 3. tit. 20. lib. 11. Nov. Rec., which fixes the period for the presentation of the appeal to the superior court, and this last period is included in or reckoned as part of the year allowed by the law quoted in the text for the prosecution and completion of the appeal Vide Azevedo on L. 11. tit. 18. lib. 4. Rec. n. 3.

17 All that is implied is, that the inferior judge shall do nothing new in the cause, nor with respect to that on which the sentence hath been given, pending the appeal. Vide L. 26. tit. 23. P. 3. and L. 27. ibid. does not seem to apply to the particular position in the

text.

18 The broad rule laid down in L. 6. tit. 10. lib. 11. Nov. Rec., excludes the admission of proof by witnesses upon the same points, or those directly opposite, upon which they have been adduced in the first instance, and limits the new proof on such, in the second instance, to authentic instruments or the confession of the party. By the law of the Par

13th, That proof is received with respect tonew exceptions which may be alleged in the second instance, and those which were not preferred in the first instance with due solemnity; and likewise those which, after publication of proofs made, the party shall swear have recently or since come to his knowledge; for which purpose half of the term assigned in the cause is granted him, and restitution is also granted to those who are entitled to it, if they pray for it within fifteen. days after publication, L. 5. tit. 9. lib. 4. Rec. [L. 7. tit. 10., and L. 4. tit. 13. lib. 11. Nov. Rec.]

14th, That the appellant must present his instrument at the same time with his appeal (agravios), in the same manner as is laid down with respect to the first instance; and the same is understood with respect to the respondent, except he hath discovered them recently or since, Ll. 1. 2. and 3. tit. 9. lib. 4. Rec. [Ll. 4. 5. and 6. tit. 21. lib. 11. Nov. Rec.]

15th, That, in the second instance, in order to conclude the suit, in whatever stage, only one petition of contumacy (rebeldia) is required, L. 51. tit. 4. lib. 2. Rec. [L. 2. tit. 15. lib. 11. Nov. Rec.]

16th, That if the party who hath felt himself aggrieved by the sentence, shall prove that he dared not appeal through great fear, or on account of the judge, the superior court ought to determine the cause conformably to justice, Ll. 23.20 and 27. tit. 23. P. 3. [Ll 23. and 27. tit. 23. P. 3.]

Cap. 2. It often happens that in causes which are depending before ecclesiastical judges, they deny or refuse appeals lawfully interposed; and as it belongs to the prince to repeal or remedy injuries (fuerzas) done by ecclesiastics, the party aggrieved may apply to the royal tribunals by way of protection, in order that, on sight of the proceedings, it may be declared whether the ecclesiastical judge has committed or not an injury (fuerza) in denying the appeal. This cognisance in no manner violates or infringes on ecclesiastical privileges; for, besides being extrajudicial, without touching on the subject of the cause, it is founded on a defence or protection which does not require jurisdiction, as Salgado,21 p. 1. cap. 1. completely proves.

The practice with respect to this recourse is reduced to this, that [297] the complainant presents himself before the royal tribunal in the limits or jurisdiction of which the judge is who denies the appeal, 1. 39. tit. 5. lib. 2. Rec. [L. 4. tit. 2. lib. 2. Nov. Rec.;] and it despatches its usual order (carta ordinaria), exhorting the judge to

tidas, L. 27. tit. 23. P. 3., new witnesses in such case were admitted, but this is altered by the subsequent law of the Nov. Rec. quoted.

19 As regards this, L. 7. tit. 10. lib. 11, Nov. Rec. says, the term to be allowed shall be arbitrary, or at the discretion of the Court of Appeal, provided it does not exceed the term which was granted in the first instance.

20 L. 23. tit. 27. P. 3. does not bear upon the point; but L. 27. ibid., quoted, fully supports the position in the text.

21 De Regià protectione.