TITLE X.

OF THE EXECUTIVE PROCESS OR MODE OF PROCEEDING (VIA EXE CUTIVA).

[302] CAP. 1. THE executive process is that by which the cases or instruments which produce prompt execution traen aparejada execucion) are carried into effect, Cur. Filip. P. 2. § 1. n. 1.; and it having been introduced in favor of the plaintiff, although he shall have instituted his suit in the ordinary process, he may pursue the executive, which is not contrary or adverse, on paying the costs, as is inferred from L. 3. tit. 11. lib. 4. Rec. [L. 3. tit. 5. lib. 11. Nov. Rec.;] and, on the contrary, the executive process may be converted into the ordinary, when the justice of the plaintiff is manifest, and it hath not been pursued according to the order and solemnities prescribed by law, Carleval, de judiciis, tit. 2. disp. 8.

§ 1. The right to execution (derecho de executar) by means of the personal obligation which empowers justices to cause it to be executed (guarantigia) is prescribed in ten years, L. 6. tit. 15. lib. 4. Rec. [L. 5. tit. S. lib. 11. Nov. Rec.,] and that which arises from royal right (derecho real) in thirty years, Carleval, tit. 3. disp. 4. n. 6.; but the decree of execution given upon a personal action is prescribed in twenty years, L. 6. tit. 15. lib. 4. Rec. [L. 5. tit. 8. lib. 11. Nov. Rec.] Carleval, ibid. à n. 7. al 12.

The right of execution in virtue of an instrument of rent or lease (censo) is prescribed in ten years, in regard to the annual charges due or past (pensiones vencidas), but not with respect to the future; because, in this kind of contract, the time is counted not from the commencement of the obligation, but from that of each year, Carleval, ibid. à n. 16. al 20.

§ 2. The things which carry with them prompt execution [303] are, 1st, The cedulas and ordinances (provisiones) of the king which are not contrary to law, or given in prejudice of any one without being cited and heard, Ll. 1. 2. 3. and 4. tit. 14. lib. 4. Rec. [Ll. 2. 4. 5. and 3. tit. 4. lib. 3. Nov. Rec.]

2d, The sentence passed into a thing adjudged, from which there is no appeal, nor any other recourse; or if an appeal hath not been interposed and prosecuted in the terms of the law, L. 6. tit. 17. lib. 4. Ll. 6. and 11. tit. 18. lib. 4. Rec. [L. 1. tit. 17. lib. 11., and Ll. 22. and 25. tit. 20. lib. 11. Nov. Rec.,] and this rule comprehends also the award of arbitrators, L. 4. tit. 21. lib. 4. Rec. [L. 4. tit. 17. lib. 11. Nov. Rec.]

1 That is with respect to the right of the crown.

2 Natural or divine is understood. Palacios.

2d, The clear confession made before a competent judge both before and after contestation of the cause, L. 5. tit. 21. lib. 4. Rec. [L. 4. tit. 28. lib. 11. Nov. Rec.]

4th, The public or authentic instrument, although it may not contain the clause which empowers the justices to cause it to be executed (guarantigia), Ll. 1. and 2. tit. 21. lib. 4. Rec. [Ll. 3. and 1. tit. 28. lib. 11. Nov. Rec.;] and execution may even be made in virtue of a tacit obligation, and virtually comprehended in the instrument or deed which may carry execution with it; ex. gr. if in the instrument or deed relating to a portion or dowry (dotal), the hushand confess the receipt of the dowry, although he is not expressly obliged to restore it, Carleval, tit. 3. disp. 5. a n, 1. al 14. But the instrument which refers to another does not carry with it execution, unless it first appears that the latter does so; as neither does the instrument which is not liquidated in respect to the amount, damages, and interest, until it is liquidated with citation to the adverse party, Cur. Filip. § 8. n. 1. and 6. Whence it is inferred, that execution cannot issue for the capital placed in partnership until the accounts have passed; because, as it does not appear whether from such contract a loss or gain hath resulted, the amount is not liquidated; but from this rule Carleval, tit. 3. disp. 7. à n. 6. al fin, draws five limitations.

5th, All instruments, promissory notes (vales), and writings acknowledged by the debtor, cause execution, L. 5. tit. 21. lib. 4. Rec. L. 4. tit. 28. lib. 11. Nov. Rec.]

6th, The orders of payment which are given by the king or council of revenue (hacienda) on the royal treasurers, carry with them prompt execution, because they are depositaries (depositarios), L. 14. tit. 7. lib. 9. Rec.3

For the same reason the orders of payment which are issued with the authority of the judge to pay a creditor money deposited carry with them prompt execution, Carleval, tit. 3. disp. 6. n. 2., and the authentic orders which corporations and universities give on their treasurers, who shall be bound to pay under the clause empowering the justices to cause execution to be made (guarentigiamente), Carleval, ibid. n. 5.

7th, Bills of exchange, after being accepted, as is referred to in L. 9. tit. 16. lib. 9. Rec.; and against the drawer, provided [ 304 ] they be protested, and he acknowledged them, Carleval, tit. 3. disp. 6. n. 23. In what manner the alternative obligation of doing something, or of paying a certain penalty, carries prompt execution with it is fully discussed by Carleval, tit. 3. disp. 3.

§3. Not only the creditor named in the instrument, which carries with it prompt execution, may demand execution, but also any other person who may have an interest, Cur. Filip. § 9. n. 1.; from which principle it follows: 1st, That the wife, after the dissolution of mar

Not in Nov. Rec.

4 Vide L. 7. and 8. and n. 4. tit. 3. lib. 9. Nov. Rec.

Not in Nov. Res.

riage, may demand execution against the debtors of her husband for the debts contracted during it, without previously having a cession or assignment of actions, Ll. 1. and 2. tit. 9. lib. 5. Rec. [LI. 4. and 1. tit. 4. lib. 10. Nov. Rec.]

2d, That the husband may demand execution for the dowry (dote) promised, without a power or authority from the wife, which does not extend to her property called paraphernalia (parafernales) Cur. Filip. § 9. n. 5.

3d, That the assignee (cesionario) of the creditor may have execution (executar), provided the cession or assignment be just and real, Cur. Filip. ibid. n. 8.

4th, That each of the heirs (of a testator or deceased person) may have execution for only the part or share which shall belong to him, Cur. Filip. ibid. n. 6.

§ 4. Execution takes place, or issues, 1st, Against the debtor and his heir, or person who shall appear to be such; provided, that if the latter hath accepted the inheritance with benefit of inventory, execution cannot go against him for more than the inheritance shall amount to; and that if there are many or several heirs, execution cannot go against each, in solidum, for all the debt, unless they should be possessors of property which the deceased hath mortgaged; because the hypothecary action always follows the thing mortgaged; but the one who, in this case, shall pay the debt in solidum, has his action to demand executively their proportions from the coheirs, Cur. Filip. § 10. n. 4.; Vide Carleval, tit. 3. disp. 9.

2d, For the debts of a corporation (consejo), execution has place against their lands or estates (propios) and property Cur. Filip. § 10.

num. 11.

3d, Execution proceeds or issues against the widow (muger) for a moiety of the debts contracted by the husband during matrimony,10 Cur. Filip. ibid. n. 6.

4th, Execution has place against the child (hijo) preferred (mejorado), as to the third and fifth of the property of the father or mother for the part of the debt correspondent to his preference (mejora), L. 5. tit. 6. lib. 5. Rec. [L. 5. tit. 6. lib. 10. Nov. Rec.]

6 It is stated in the author, quoted in the text, that also any other third person whose interest is treated of in the instrument, although he be not named in it, may demand execution thereof; and L. I. tit. 28. lib. 11. Nov. Rec. is quoted in support; but the law quoted does not expressly state thus much.

7 That is, as ganancial property, or that acquired during marriage by purchase, &c., and so considered; to half of which the wife, on the dissolution of marriage, is entitled: only for her moiety of such property, says Palacios.

8 But all the heirs may join in the demand for execution.

9 Under a cession or assignment of the right of action by the creditor.—Palacios (1). 10 That is, with respect to ganancial property. Palacios confirms this opinion, and says it would only go against one moiety of such property, although the moiety of the debts might amount to more; and that as even any debt arising from a security entered into by the husband on behalf of another person, will not affect her individual property, under L. 7. tit. 3. lib. 5. Rec. (L. 2. tit, 11. lib. 10. Nov. Rec.); so neither would it affect her moiety of the gananciales. See Append. K.

5th, Execution has not place against the third possessor (tercer poseedor) of the property of the debtor, who, not being the heir [305] or successor, hath acquired it by special lawful title." This rule is subject to three limitations;12 1st, if the debtor hath alienated (enagéno) his property, or part of it, the executive process having begun, or been instituted, to evade the right of the creditor. 2d, If the instrument in which the thing was mortgaged contain the covenant not to alienate.

3d, If the instrument contains the clause of being constituted precarious tenant or possessor at will (clausas de precario y constituto), Carleval, tit. 3. disp. 11. 4th, This rule is not understood of third possessors, such as the depositary (depositario), borrower (comodatorio), the husband in respect of dotal property, &c., Cur. Filip. §

11. n. 4. and 6.

§ 5. The form and order of the executive process is as follows: 1st, The plaintiff presents his petition before the judge, who has jurisdiction over the defendant, praying execution in virtue of the instrument which he presents, in which he shall swear to the true and liquidated sum due to him, Ll. 2. and 19. tit. 21. lib. 4. Rec.13 [Ll. 1. and 12. tit. 28. lib. 11. Nov. Rec.], and if the debt should be payable at a certain term (plazo), he cannot prefer his demand before it shall arrive, L. 2. tit. 21. lib. 4. Rec. [L. 1. tit. 28. lib. 11. Nov. Rec.]

2d, If the defendant against whom execution is issued (executado) should have submitted himself to the jurisdiction of the alcaldes of the court (corte) and royal audiences, with the renunciation of his own jurisdiction (fuero), these tribunals may proceed to levy the execution, provided the person and property of the debtor be found within five leagues, and if beyond this distance, they shall proceed by warrant (requisitoria) to levy the execution, and if the submission hath been made to the ordinary judges, they may cause execution to be levied on the property of the debtor within their jurisdiction, L. 20. tit. 21. lib. 4. Rec. [L. 7. tit. 29. lib. 11. Nov. Rec.]

3d, The instrument being examined by the judge before whom it is presented, and found to carry with it prompt execution, he orders it to issue without taking security from the creditor except in certain cases, Ll. 2. and 19. tit. 20. lib. 4. and L. 40. tit. 4. lib. 3. Rec. [Ll. 1. and 12. tit. 28. lib. 11. and L. 12. tit. 30. lib. 11. Nov. Rec.]

11 That is, a bonâ fide possessor by purchase, &c., or claiming under such possessor, &c. 12 Palacios says, that thirteen limitations are mentioned by Febrero Reformado, P. 2. lib. 3. cap. 2. num. 82.

13 Neither of these laws requires the creditor to make oath to the amount of the sum justly due to him previously to obtaining the writ of execution; but L. 6. tit. 28. lib. 11. Nov. Rec. (L. 9. tit. 21, lib. 4. Rec.) commands the judge to perform this duty before he shall grant the writ of execution to the creditor.

The exaction of this salutary measure hath been made the subject of a rule of the new Court of First Instance of Civil Jurisdiction at Trinidad, established under the Order in Council of 16th September, 1822, Appendix Q. See the rules at length, Appendix R.

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4th, The order or writ of execution is delivered to the creditor,14 in order that he may have it executed, otherwise there is a nullity, L. 17. tit. 21. lib. 4. Rec. [L. 10. tit. 28. lib. 11. Nov. Rec.,] observing that the escribano must note (hacer constar) the hour in which the execution is delivered (se traba), L. 21. tit. 21. lib. 4. Rec. [L. 14. tit. 30. lib. 11. Nov. Rec.]

§ 6. Execution is issued against a certain and determinate property which the debtor points out, and not doing so, or being absent, against that which the creditor shall point out, Cur. Filip. § 15. n. 1 and 2. Execution must first be levied on movable property, and in default of that on real; and not being so levied, it shall be null, L. 19. tit. 21. lib. 4. Rec.15 [L. 12. tit. 28. lib. 11. Nov. Rec.]

[306] The property levied on must be sequestered, inventoried, and deposited with a person of stability or property (abonada), L. 7. tit. 21. lib. 4. Rec. [L. 1. tit. 30. lib. 11. Nov. Rec.]

There are some kinds of property which cannot be taken in execution, and these are, 1st, Things sacred and destined for divine worship, L. 7. tit. 2. lib. 1. Rec. [L. 3. tit. 5. lib. 11. Nov. Rec.]

2d, Implements and beasts of husbandry, and the bread which laborers shall bake by their own labors, except for royal duties (derechos), or for tithes, and ecclesiastical and seignorial rents, Ll. 25, 26.16 and 28. tit. 21. lib. 4. Rec. [L. 15. tit. 31. lib. 11., L. 6. tit. 11. lib. 10., L. 16. tit. 31. lib. 11., L. 7. tit. 11. lib. 10. and L. 8.17 tit. 19. lib. 7. Nov. Rec.]

3d, The tools which artificers possess for the exercise of their trade or calling, Cur. Filip. § 16. n. 10.

4th, The houses, arms, and horses of knights (caballeros), and noblemen (hijosdalgo), except for a debt to the crown,18 L. 6. tit. 17.

14 By an Order in Council, 16th September, 1822, reciting the law quoted in the text, it is declared, that writs of execution shall not, in any future case, be deliverable to the parties, but shall be delivered by the escribano (the secondary or register of the court,) to the alguacil mayor (the sheriff or marshal), upon the application of the party in whose favor the judgment shall have been obtained. See Appendix Aa.

15 Neither L. 19. tit. 21. lib. 4. Rec. (L. 12. tit. 28. lib. 11. Nov. Rec.) nor any other law, declares the execution expressly null in this case; if, therefore, the defendant should tacitly approve it; that is, by not appealing, nor praying it a nullity, before proceeding to any other act or step in the cause, the understanding is, that such execution will be valid. -Palacios, (1).

16 Not in Nov. Rec.

17 This law (L. 8. tit. 19. lib. 7. Nov. Rec.), does not particularly apply; but it is the latter part of it which forms with L. 16. tit. 31. lib. 11., and L. 7. tit. 11. lib. 10. Nov. Rec., the whole of L. 28. tit. 21. lib. 4. Rec., which is quoted in the text.

18 Although, according to various laws, execution ought not to be levied, except for debts due to the crown, on the dwelling houses, arms, horses and mules in the possession and use of knights and nobles (caballeros é hijosdalgo), such rule is only observed in respect to the dwelling houses; and even then, in default of other property, execution is levied on them; for it is not just that the creditor should remain without the payment of the debt, which, in justice and conscience, is due to him.-Febrero Reformado, P. 2. lib. 3. cap. 2. § 2. num. 98. Palacios, who makes this quotation, observes, that neither L. 6. tit. 17. lib. 5.; nor L. 27. tit. 21. lib. 4. Rec.; (L. 13. tit. 31. lib. 11. Nov. Rec.), prohibit execution going against the dwelling house of the noble; but L. 61. tit. 4. lib. 2. Rec., [which is not inserted in the Nov. Rec.] He adds, that at no time of the year ought