costs which may be allowed. He shall observe that his declaration contains the oath that the sum demanded is due, and ought to be paid by the debtor.

2. The judge shall examine if the document which entitles the creditor to a recovery imports a confession of judgment; and if such be the case, he shall order immediate execution, by addressing an order in writing to the alguazil mayor, directing him to summon the debtor to pay the demand, or, in default thereof, his property shall be seized to the value of the same, with the tenth and the costs.

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3. By virtue of the said order the alguazil mayor shall summon the debtor; if he complies, the execution shall cease. If otherwise, his property shall be seized, and held in custody by the depositary general, unless he shall give good and sufficient security for the payment of the sum in which he is condemned by the sentence. But if he shall not give the security aforesaid, or if he has not property sufficient, he shall be imprisoned, unless exempted therefrom by the privilege of nobility, which is also enjoyed by the military, regidors, officers of finance, women, lawyers, physicians, and other distinguished persons. The alguazil mayor shall note, at the foot of the writ, his proceedings thereon, as also the day and hour

of the same.

4. The property being seized, the creditor shall, by another writing, move that the same be valued by two capable persons, on whom the parties may agree, and that public notice be given that the sale thereof will be made after the usual delay, according to the nature of the property. The said delay shall be of nine days' duration for personal property, with a public notice every three days; and of thirty days' duration for real property, of which notice shall be given every nine days; but, if the debtor shall consent, the said notices need not be given.

5. The said term being expired, and public notice being given, the creditor shall require that the debtor be definitively summoned to make opposition, and prove that the sum demanded is not due, or has already been paid. In pursuance thereof the debtor shall be definitively summoned, if he has not previously opposed, which he might do during the time of seizure, or of his detention in prison.

6. If the debtor shall not make opposition, within three days, computing from the day on which he may have been definitively summoned, he shall be attached by default; but if he shall make opposition, he shall be ordered to prove his exceptions within ten days at furthest, which shall be common to both parties, to prove the justice of their pretensions in the manner which to them may seem best.

7. During the said delay, the proof offered by the two parties shall be received, and they shall cite each other reciprocally to attend at the administering of the oath to the witnesses, in conformity to the provision of section I, Nos. 8 and 9, for civil judgments in general; with this difference, however, that the said delay may be prolonged at

the request of the creditor, and in which case, the debtor shall enjoy the benefit of the said prolongation.

8. The term allowed having expired, no further proof shall be allowed, save the confession of the party; and the documents shall be returned to the creditor that he may set forth his right, of which a copy shall be given to the debtor. Upon his reply, or in default thereof, the judge shall require the documents, and shall proceed to give judgment.

9. He shall examine with attention if the exceptions made by the debtor are just, and more fully established than the claim of the plaintiff; and, if such be the case, he shall discharge him from the demand instituted against him. He shall order the restoration of his property, and shall con demn the plaintiff to the payment of costs.

10. If, on the contrary, the debtor has not proved his exceptions, and the sum demanded be found legally due, the judge shall declare the seizure to be valid, and shall order the fourth and last public notice of the sale to be given, and the adjudi cation of the property to the highest bidder, that, from the proceeds of the same, the demand of the creditor may be fully discharged, as also the teeth and the costs. The creditor, shall, however be held to give security in the amount of the sum, lest the sentence should be annulled by a superior

tribunal.

11. This sentence shall be carried into execu tion notwithstanding appeal, but shall not pre vent the party who may have been aggrieved, from appealing to the cabildo, provided the sum does not exceed 90,000 maravedis;* otherwise the appeal must be made to the superior tribunal, to be hereafter appointed by His Majesty.

12. Definitive judgment being pronounced the day for the fourth and last notice of the sale of the property seized shall be appointed. On the said day the sale shall be made in the presence of the parties, who shall be legally summoned to attend; and the amount of his demand shall be paid to the creditor, who shall give the security aforesaid; the tenth shall be paid to the alguazıl mayor, and the costs and expenses to the other officers, in conformity to the regulations of the tariff.

13. It must be observed, that, if the debtor discharges his debt within seventy-two hours after the seizure is pronounced to be valid, the tenth shall not be demanded; but in default thereof, the payment of the same may not be dispensed with and on this account it has been heretofore declared indispensably necessary to note the day and the hour of the proceedings in the seizure.

SECTION III.-Of Judgment in Criminal Causes.

1. When information shall have been obtained of any crime, such as homicide, robbery, &e. har ing been committed, if no prosecutor shall appe the judge shall officially draw up a procès-verba

*The 90,000 maravedis, mentioned both in the ngulations and in the present instructions, make 339asters, 7 reals, and 2 maravedis, equal to 1654 livres, sols, 9 deniers.

2. When the party injured shall bring forward a complaint, he shall commence by a petition, containing a correct and brief exposition of the fact, and requesting an examination into the circumstances of the crime, in the manner beforementioned, and also that a summary inquiry may be made into the truth of the facts set forth in his petition. The judge shall take order on the said petition in the following words: "Be it done as is required."

3. The judge shall make the said inquiries in person, unless unavoidably prevented; in which case he may intrust the same to the Register. If, however, the crime be established, and the crimiaal unknown, every inquiry, search, and examiaation necessary to obtain a knowledge of the said criminal shall be made.

4. When the inquiries have been made, and the criminal be known, if two witnesses appear, or one witness of credit, joined to other circumstances indicative of the aggressor, the judge shall direct the body of the said aggressor to be taken into custody, as also an inventory of his property to be taken, and the sequestration of the same in the hands of the depositary general.

5. If the criminal has not been arrested, by reason of either absence or concealment, the judge shall direct that, as by the report of the alguazil the said criminal has not been arrested, he be cited by public proclamation, three times repeated, in the manner following:

6. The accused shall first be cited to appear and deliver himself up within nine days; in defauit of which, the judge shall direct the scrivener to certify that the term has expired, and the jailer to affirm that the offender has not appeared. In consequence of the said certificates, which shall be annexed to the documents in the cause, the accused shall be condemned to the penalty of contumacy; and the judge shall direct that he be again cited to appear within the aforesaid term of nine days. On the expiration of this second delay the scrivener and jailer shall certify as before; after which the judge shall issue an order for his arrest, and direct the publication of the same, as also the continuance of the proclamation afore

and the criminal is cited as if he was present. The proceedings shall then be continued until the definitive sentence either in favor of or against the accused be pronounced.

7. If, however, previous to, or after the sentence, the accused shall present himself at the prison, the cause shall be instituted anew, and the defence of the accused shall be heard with attention; and upon what the prosecutor or the procureur fiscal may set forth in opposition thereto, the previous sentence shall be either confirmed or annulled, according to the documents reproduced on the trial.

8. If the criminal be taken after the order for his arrest has been issued, and the procès-verbal concluded, the judge shall direct the jailer to certify that the accused is in prison, and the said judge shall, in person, commence the examination by demanding his name, age, quality, profession, country, and residence. If he be under twentyfive years of age, he shall be enjoined to choose a guardian; and, upon his refusal to do so, the judge shall appoint some one thereto, by reason that the said examination cannot proceed without the presence and authority of the said guardian.

9. In the said examination the judge shall charge the accused with the crime, pursuant to the testimony given, and shall start such questions as may tend to the disclosure of the circumstances of the same.

10. The examination concluded, the witnesses, both for and against the accused, shall be heard within the shortest delay possible; which, however, if necessary, may be extended to eighty days, as allowed in civil causes in general. During this delay, the accused on one side, and the prosecutor, or the procureur fiscal, (in default of a prosecutor) on the other, shall produce their proof in the manner provided in civil causes; and although these proofs should be private, as also the re-examination of the witnesses, they may communicate to each other the documents in the cause in order to the necessary arrangement of their proceedings.

11. The witnesses being re-examined, and the delay allowed having expired, one of the parties shall require that the testimony be made public. This demand shall be communicated to the other party, by a copy thereof, upon whose answer, or in default thereof, the judge shall direct the publication of the said testimony. The documents shall then be delivered to the prosecutor, or to the procureur fiscal, that he may bring his accusation in form, and allege the sufficiency of the proof.

12. The accusation being made, conjointly

with the declaration of the sufficiency of the proof, a copy thereof shall be given to the accused, that he may in defence set forth whatever he may think in favor of his case. When the said defence shall have been made, the pleadings shall be considered as concluded, and, consequently, the cause in a state to be determined.

13. If it shall happen that one or both of the parties except against the witnesses produced, they shall proceed in the manner pointed out under the head of civil causes in general, and shall conform precisely to the instructions therein given for similar cases. After the decision on the said exceptions has been made, the determination of the cause shall not be delayed; but the judge shall require the documents, and cite the parties for the definitive sentence.

14. The accused being convicted of the crime, as being fully established on the trial, or by some other proof, in conjunction with his own confession, he may be condemned to the penalty provided by law for the same. The said condemnation shall also take place when two witnesses of lawful age and irreproachable character shall depose that of their certain knowledge the accused has committed the crime; but when there shall appear against the accused but one witness, and other indications of conjectures, he may not be condemned to the penalty provided by law; but some other punishment shall be inflicted as directed by the judge, with due consideration of the circumstances which may appear on the trial; this state of things requires the greatest circumspection, as it must always be remembered that it is better to let a criminal escape than to punish the innocent.

15. After all these precautions, the judge shall pronounce sentence; and although in criminal causes an appeal should be admitted, yet if the judge shall have doubts, or from some difficulties on the trial he shall think it advisable to submit the same to the examination of a superior, execution shall be suspended, and this second instance shall be conducted as in civil causes.

SECTION IV.-Of Appeals.

1. When judgment has been given for a sum or an object, the value of which shall exceed ninety thousand maravedis, an appeal shall be brought by the party who may think himself aggrieved, directly to the tribunal to be hereafter appointed by His Majesty; and when the said appeal shall have been lodged, communication thereof shall be made to the adverse party, who shall plead against the merits of the same: that is to say, whether sentence shall be suspended or executed, notwithstanding appeal. To determine this point, the judge shall demand the documents, and after examining the same pronounce either for or against, as he shall think just ; and in urgent and particular cases, such as dowry, alimony, or others of a similar nature, in which appeals should not lightly be admitted, he shall order execution. In this class are also comprised criminal causes, unless such circumstances should occur as are cited at the conclusion of the preceding para

graph; and in which case execution should be suspended until the superior judge may have ex amined the same, and confirmed the sentence pronounced.

2. If the appeal be admitted, the second trial shall be conducted in the manner following: The judge shall direct the delivery of the documents in the cause to the appellant, that he may declare in what consists the grievance of which he com plains; by which is meant that he shall set forth in argument the injury he would sustain by the execution of the sentence, which, for one or more reasons, is not in conformity to the provisions of the law in similar cases, and concluding by mering that the same be annulled. A copy of this decla ration shall be given to the other party to reply thereto and confute the arguments of his adversary, by setting forth those tending to prove that the sentence has been pronounced in conformity to law. The judge shall then direct that after having transcribed the documents in the cause, at the ex pense of the appellant, the originals be transmitted to the tribunal, in which the appeal is to be tried. He shall summon the parties to hear the trans cripts compared with the originals, as also to ap pear in person, or by proxy, at the tribunal to which the said appeal shall be carried, within the delay that may be allowed, according to the distance of the same from this province. The said delay stall commence from the day on which the first registered vessel shall sail from this port for the place where the superior tribunal shall be established; the judge having previously ordered the delivery, on board the said vessel, of the original documents aforesaid. He shall inform the appellant, that if within the delay allowed, he shall not prove that he appeared before the said tribunal with the or ginal documents, he shall fully and indisputably forfeit his appeal, and that the execution of the sentence shall consequently be ordered on the first requisition of the adverse party. If, however, the appellant shall establish the loss of the vessel in which his documents were embarked, or of the one in which he had transmitted the vouchers of his having appeared at the superior tribunal within the time prescribed; or, in short, any other imped iment which may discharge him from the afore said obligation, the appeal may not be declared to be abandoned; but on the contrary, a further delay shall be granted; and if the originals have been lost, copies thereof shall be delivered to him, that he may prove his appearance and compliance with whatsoever has been required.

3. In the case of a judgment for a sum not exceeding 90,000 maravedis, exclusively of the costs, the appeal shall be made to the cabildo in this city. and the same shall be conducted in the manner following: Within five days, computing from the day of the signature of the sentence, the appellan shall present his petition, which shall be delivered to the register to annex his certificate thereto; on sight of which the cabildo shall appoint two reg dors, in quality of commissioners, to decide on the cause of appeal, conjointly with the judge waa pronounced the sentence. The said commissioners shall be bound to accept the said appointment, and

12. If fornication be committed between bachelors and girls, they shall be admonished by the judge to discontinue every kind of intercourse with each other, under the penalty of banishment of the man, and confinement of the girl, for such time as may be necessary to operate a reformation. If this menace have not the desired effect, the judge shall put the same into execution, unless the rank of the parties requires a different procedure; and in which case the said offence shall be submitted to the consideration of the judges, collectively, to apply the remedy which their prudence and zeal for the repression of such disorders may suggest. They shall punish all other libidinous offences in proportion to their extent, and to the injury occasioned thereby.

13. He who shall break his oath taken, in conformity to law, for the validity of an agreement, shall forfeit the whole of his property to the profit of the public and royal treasuries.

14. False witnesses in civil causes shall be exposed to public shame, and banished for ten years; but in criminal causes, in which false testimony is more important in its consequences, the same shall be punished capitally. If, however, the accused shall not have thereby been sentenced to death, the false witness shall only be exposed to public shame, and be sentenced to perpetual banishment to some presidio. The said punishments may, however, be commuted, when from the rank of the offenders they cannot be condemned to the

same.

15. He who shall steal the sacred vessels in a holy place shall suffer death.

16. Assassins and robbers on the highway shall suffer death.

17. The same punishment shall also be inflicted in cases of forcible robbery, which shall be reputed such, when the proprietor or other persons shall have made resistance.

18. Robberies of classes other than those comprised in the preceding articles shall be punished corporally, according to the nature of the same, and the rank of the persons.

19. He who shall kill another shall suffer death, unless done in his own defence, or under such circumstances as are explained in statutes 3, 4, 12, tit. 23, book 8, of the Nouvelle Recopilation.

20. He who shall commit wilful murder, or wound another with intent to deprive him of life. although the wounded person may survive, shall suffer death, and shall be dragged to execution at the tail of some animal; and the half of his property shall be confiscated to the profit of the public or royal treasury.

SECTION VI.-Of Testaments.

1. For the validity of a nuncupative will, it is necessary that the same be received by a notary public, in presence of at least three witnesses, residents of the place; or if there be no notary, there must be present five witnesses, residents of the place in which the will shall be made; if, however, it be impossible to procure the last mentioned number, three may suffice.

2. A testament shall be equally valid when

made in the presence of seven witnesses, although they be not residents of the place, and although the same be not made in the presence of a notary.

3. If, after the closing of a will, the testator shall wish to add to, diminish, or change any dis position contained therein, he may do the same effectually by a codicil; observing the same formalities, and in the presence of the same number of witnesses required for the validity of the testament itself; but he may not change the name of the heir, unless another will shall be made.

4. If the testator be blind, five witnesses shall a be necessary to each of the instruments aforesaid, in order to prevent those deceptions to which those who labor under such a misfortune are exposed.

5. For the validity of a written will, styled in Latin in scriptis, the testator, on delivering the same to the notary, (who shall seal it,) shall put p an endorsement on the cover, stating that the within is his will; which endorsement shall be signed by himself and the seven witnesses, if they can write; and if not, the others shall sign for them; so that there be eight signatures, including that of the scrivener, who shall also put his sig nature thereto.

6. Before the opening of a will, after the decease of the testator, it is necessary that the judge who shall have knowledge thereof, shall certify thereto, and that the witnesses appear before the said judge, and declare, on oath, that they were present when the testator declared the same to be his last will: they shall acknowledge their signa tures, or shall declare (if such be the case) that by request some one has signed for them.

7. As it often occurs that persons, either unable or unwilling to make a will themselves, empower others for that purpose, they are hereby informed, as follows:

8. That such authority must be given in presence of the same number of persons, and with the same formalities required for testaments.

9. That the person empowered to make a will for another cannot revoke a will previously made by his constituent, unless the said will shall contain a special clause to that effect.

10. That he may neither appoint an heir, be queath a third or a fifth to any of the children or descendants of his constituent, disinherit any of them, substitute others in their stead, nor name a guardian for them without an express clause and special authority to that effect; by reason that the constituent should himself nominate his heir, and designate, by his will, whatsoever he may

wish to be done.

11. That if the testator has not appointed an heir, nor designated one in the power given to make a will for him, the person so empowered may only direct the payment of the debts of the deceased, after which a fifth part of the proceeds of his property shall be distributed for the repose and relief of his soul: the remainder shall be divided amongst the relations of the deceased, who, according to law, shall inherit; or if there be none, the whole shall be applied to pious uses for the benefit of the soul of the deceased, after pre