USA > Louisiana > Historical memoirs of Louisiana, from the first settlement of the colony to the departure of Governor O'Reilly in 1770; > Part 24
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2. The escribano of the cabildo shall never suffer any paper or act to be removed from his archives; and if the judges should be obliged to have recourse to the same. he shall furnish them a correct copy thereof, but shall never part with the original ..
3. The said escribano of the cabildo, and of the government, shall note at the foot of all acts and instruments of writing, and copies of the same which he may deliver, the fees which he has received therefor, under the penalty of forfeiting the same, and of incurring the other penalties estab- lished, to prevent him from exacting more than is allowed by the tariff.
4. The escribano of the cabildo and of the government shall in- scribe, in a separate book, the mortgages upon all contracts which may be made before him or any other ; he shall certify, at the foot of each deed, the charge of mortgage under which the sale or the obligation may have been made, conformibly to the intention of the law, in order to prevent the abuse and frauds which usually result therefrom.
5. The regidors, the escribano, and all those who may succeed to any of the venal offices established by the laws of the Indies, are hereby in- formed that the royal ordinances require, that within the term of five years, computing from the date of their commission, they must obtain his majesty's confirmation, and present the same to the governor of the city or province in which they reside, under the penalty of being deprived of the said offices.
SECTION X.
Of the Jailer and the Prisons.
1. The jailer shall be appointed by the alguazil mayor, and approved by the governor, before entering on the duties of his office. He shall also be presented to the cabildo to be received, and to take an oath to discharge faithfully the duties of the said office, to guard the prisoners, and to observe the laws and ordinances established in this respect, under the penalties therein declared.
2. The said jailer must not enter upon the duties of the said office, until he shall have given good and sufficient sureties in the sum of two hundred dollars, which sureties shall warrant that no prisoner detained for debt shall be released without an order from the judge competent thereto.
3. The jailer shall keep a book in which he shall inscribe the names of
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all the prisoners, that of the judge by whose order they have been arrest- ed, the cause for which they are detained, and the name of those who may have arrested them. He shall reside in prison, and for each considerable fault committed by him he shall pay sixty dollars, applicable one half to the royal chamber, and the other half to the informer.
4. It is the duty of the jailer to keep the prison clean and healthy, to supply it with water for the use of the prisoners, to visit them in the eve. ning. to prevent them from gaming or disputing, to treat them well, and to avoid insulting or offending them.
5. It is likewise the duty of the jailer to take care that the female pri- soners are separate from the men ; that both of them are kept in their respective apartments, and that they are not worse treated than their offence deserves, or than is prescribed by the judges.
6. With respect to his fees, the said jailer shall confine himself strictly to those which are established ; he shall take none from the poor under a penalty of the value of the same. He may not, without incurring the same penalty, receive any gratification either in money or goods. He shall avoid entirely either playing, eating, or forming any intimacy with the prisoners, under the penalty of sixty dollars, applicable, one-third to the royal chamber, one-third to the informer, and the remaining third to the poor prisoners.
Form of the oath to be taken by the governors, the alcaldes, and the other judges, when taking possession of their offices :
Don N., elected governor, or alcalde, &c., (according to the employment or office,) I swear before Goul, the holy cross, and the evangelists, to up- hold and defend the mystery of the immaculate conception of our lady the Virgin Mary, and the royal jurisdiction to which I am attached by my employment. I also swear to obey the royal ordinances and the decrees of his majesty, faithfully to discharge the duties of my office, to decide according to law in all cases which may come before my tribunal; and for the more certain attainment thereof, I promise to consult with such as are well informed in the law, whenever opportunities may occur in this city ; and, lastly, I swear that I will never exact other fees than those fixed by the tariff, and that I will never take any from the poor.
At NEW-ORLEANS, November 25, 1769.
DON ALEXANDER O'REILLY.
Printed by order of his excellency François Xavier Rodriguez, escribano of the expedition.
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Instructions as to the manner of instituting suits, civil and criminal, and of pronouncing judgments in general, in conformity to the la u's of the Nueva Recopilacion de Castilla, and the Recopilacion de las Indias, for the govern- . ment of the judges and parties pleading, until a more general knowledge of the Spanish language, and more extensive information upon those laws may be acquired : digested and arranged by Doct. Don Manuel Joseph de Urrus- tia, and the counsellor Don Felix Rey, by order of his excellency Don Alex- ander O' Reilly, Governor and Captain General of this province, by special commission of his masjety.
SECTION I.
Of Civil Judgments in General.
1. It must, in the first place, be observed, that in causes civil or criminal, of any nature whatsoever, persons belonging to any religious order may neither appear, nor make any demand without the permission of their superior. This permission is equally necessary to the son, whose father be living, and whose consent must be obtained; to the slave, who may not aet without the consent of his master; to the minor, who must be author- ized by his tutor, who may be chosen by himself at the full age of four- teen years, or appointed by the judge, when of an age less advanced ; to the wife, who must obtain the permission of her husband; and, lastly, to lunatics and idiots, who must be represented by the curator appointed by law to take care of their persons and property.
2. It must also be observed, that the consent of the father is not neces- sary to the son, when pleading in his own name for the recovery of pro- perty or rights acquired by his services in war, which are styled custrenses, or by particular gratification from the prince; or lastly, of those he may have acquired by some public employment, which are styled quasi cas- trenses. But in the case where the son shall demand a maintenance or wish to be emancipated, he shall previously obtain the permission of the judge, by reason of the consideration and great respect due to a father, or other superior. The slave is also allowed the same course of proceeding towards his master, if the latter, in the exercise of his authority, shall ex- ceed the bounds preseribed by law, in which case the slave is entitled to require either his liberty or to be sold. The wife may, also, without the consent of her husband, require her dowry, if he shall be on the point of squandering the same; or an alimony, in the case of separation or ill- treatment.
3. He who may purpose to institute an action at law for a sum exceed- ing one hundred livres, shall commence the same by a petition setting forth the faet, and the motives upon which he proceeds; he shall also specify whether his demand be for the proceeds of some sale, for money
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lent, or other similar claim, with every circumstance necessary to the elucidation of the case, and for the information of the judge. He shall conclude by requiring either the return of the money, if lent, or the pay- ment of his demand, and the condemnation of the adverse party to the payment of costs, if he shall unjustly maintain the contrary.
4. The said petition shall be signed by the party or by his proxy, and shall then be presented to the judge, who shall cause the same to be com- municated to the party against whom the demand may be made, which proceeding shall have the validity of a citation. The defendant shall make his defence within nine days, computing from the day on which he may have been notified of the demand. He shall draw up a counter-declara- tion in answer thereto, which shall contain such arguments as tend to de- feat the claim of the adverse party, if the same be not founded, and shall make his defence in the manner observed by the plaintiff in his introduc- tory petition (requete).
5. If the defendant does not answer within the nine days, the plaintiff shall require judgment by default, by a writing setting forth that the delay has expired ; and moving that, no answer having been made, the defend- ant be condemned by default ; and that, consequently, his claim be re- puted acknowledged and sufficiently established.
6. If, on the contrary, the defendant shall answer within the nine days, and shall allege that he is not bound to defend the suit as to the merits thereof, by reason that judgment in the case is not within the competency of the judge who has taken cognizance of the same, that the plaintiff can- not plead in his own name, that the term of his engagement has not yet expired, or other similar exceptions, communication thereof shall be made to the plaintiff that he inay reply, within six days, thereto. Upon his re- plication the ju.lge shall decide whether the cause shall be defended as to the merits thereof; in which case, without admitting an appeal, the said canse shall be tried on the merits thereof.
7. But if the defendant, without producing any similar exceptions, shall set forth pleas tending indirectly to admit the demand, as by alleging that the thing demanded has not become due, that the same has been already · paid, or any other pleas, supported by vouchers, which may be admitted before the putting of the cause at issue, the effect of which pleas would discharge him from the demind, the same shall be communicated to the. plaintiff, to reply thereto: a copy of which reply shall be delivered to the defendant for a rejoinder to the same ; after which the judge shall require the documents, and shall proceed to give judgment.
8. If the fact contested should be adinitted to proof, as being doubtful, . the same shall be determined within eighty days, at furthest ; during which delay the parties shall furnish their proofs, and shall summon each other reciprocally to attend to the administering of the oath to the wit- nesses.
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9. The testimony of the witnesses shall be so secretly given that neither of the parties shall have knowledge of the depositions of his own wit- nesses, nor those of the adverse party. The term to which the cause may have been continued having expired, one of the parties shall move that by reason of the said expiration the testimony of the witnesses be made public. This motion shall be communicated to the other party, who shall consent thereto, or if he shall not reply to the same, he shall be condemned by default in the manner observed, when one of the parties does not reply to the plea of the other. The judge shall order the publication of the said testimony, and the deliverance thereof to the parties; observing that the same be first delivered to the plaintiff, that he may, if necessary, strength- en the same.
10. The testimony being made publle, should the plaintiff find the wit- nesses of the defendant inadmissible, as being either his enemies, or the intimate friends or relations of the defendant, or for other canses which may weaken the faith which would otherwise be due to their testimony, he shall draw up a declaration in which his exceptions shall be specified, after taking an oath that he has no intention of offending them ; which oath shall be notified to the defendant, who may in reply state his excep- tions to the witnesses of the plaintiff. The said exceptions shall then be put to the proof, and forty days may be granted therefor, or one half of the term allowed for the taking of the testimony in the principal cause.
11. When the term allowed for the admission of proof of the exceptions shall have expired, the publication of the testimony, as in the principal cause, shall not be allowed, but the documents shall be delivered to the plaintiff, that he may set forth his proof; and if he shall establish that the same is more complete than that of the adverse party, a copy thereof shall be given to the defendant, upon whose reply, or in def tult thereof, the · judge shall declare the controversy determined. He shall then order, that the parties await the final decision, which must be given within twenty days, computing from the day on which he may have required the docu- ments in the cause. He shall attentively examine the said documents, and determine the suit by condemning the debtor to payment, or by dis- charging him from the demand, according to the merits of the case.
: 12. If ju Igment be given for a sum not exceeding 90,000 maravedis, an appeal to the cabildo may be taken within five days, computing from the day on which the parties may have been notified of the sentence. If the judgment given be for a greater sum, an appeal shall lie to the tribunal, that may be appointed by his majesty, in consequence of the representa- tions which have been made to him on that subject. A brief explanation of the manner in which this recourse may be had, will be given at the conclusion of these instructions.
13. If no appeal shall be lodged within the five days allowed, the party, who may have obtained judgment in his favor, shall draw up a writing,
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by which he shall move, that no appeal having having been taken within the legal delay, the judgment be considered definite; and that, in pur- suance thereof, execution be ordered ; a copy of which shall be given to the adverse party ; and on his reply, or in default thereof, the judge shall pronounce both on the validity of the judgment and the expiration of the delay; after which he shall order that the sentence take effect, and be put into execution.
SECTION II.
Of Executory Proceedings.
1. When a debt shall be fully established, and it imports a confession of judgment, as by an agreement or obligation made before a notary ; by a simple note, legally acknowledged by the drawer ; by confession of judg- ment, although without any written title from the debtor; by a definite sentence of the court, or by the cash books of the debtor acknowledged by him; in all these cases the creditor shall draw up a declaration setting forth his claim and his action, annexing thereto the document which enti- tles him to an order of execution, and moving that by virtue of the said document, a writ of execution be granted him for the sum due, as also the tenth and the costs which may be allowed. He shall observe that his declaration contains the oath that the sum demanded is certain, 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 de- mand, or, in default thereof, his property shall be seized to the value of the same, with the tenth and the costs.
3. By virtue of the said order, the alguazil mayor shall summon the debtor; if he complies, the execution shall cease. If otherwise, his pro- perty shall be seized and held in custody by the depositary general ; un- less 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 im- prisoned, unless exempted therefrom by the privilege of nobility, which is also enjoyed by the military, regidors, officers of finance, wo ten, law- yers, physicians, and other distinguished persons. The alguazi' mayor shall note, at the foot of the writ, his proceedings thereon, as also the day and the hour of his executing 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 par- ties may agree, and that public notice be given that the sale thereof will
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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 definitively summoned to make op- position, and to prove that the sum demanded is not due or has already been paid. In pursuance thereof the debtor shall be definitively sum- moned, if he has not previously opposed, which he might do, during the time of the 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 definitely 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 proofs offered by the two parties shall be re- ceived, and they shall cite each other reciprocally to attend at the adminis- tering of the oath to the witnesses, in conformity to the provision of section 1, Nos. 8 aud 9, for civil judgments in general ; with this difference, how. ever, that the said delay may be prolonged at the request of the creditor, 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 re- quire the documents, and shall proceed to give judgment.
9. Hle shall examine with attention if the execeptions 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 insti- tuted against him. He shall order the restoration of his property, and shall con lemn the plaintiff to the payment of the 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 adjudication of the property to the highest bidder. and that from the proceeds of the same the demand of the ereditor be fully discha ged, as also the tenth and the costs. The creditor shall, however, be he .. .. o give security in the amount of these sums, to answer in the event the sentence should be annulled by a superior tribunal.
11. This sentence shall be carried into execution notwithstanding ap- peal, but shall not prevent the party who may have been aggrieved from appealing to the cabildo, provided the sum does not execed 90,000 mara-
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vedis, 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 alguazil 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 cannot be dispensed with; and on this account it has been heretofore declared indispensably necessary to note the day and the hour of the pro- ceedings in the seizure.
SECTION III. Of Judgment in Criminal Causes.
1. When information shall have been obtained of any crime, such as homicide, robbery, &c., having been committed, if no prosecutor shall ·appear, the judge shall officially draw up a proces-verbal containing the knowledge he has acquired of the said crime, and shall order an inquiry to be made into the circumstances of the same ; as, for example, in the case of homicide, he shall cause the body to be examined by one or more surgeons, who shall declare whether the wounds have been mortal or other- wise; they shall set forth in what place and in what situation the body was found, and with what instrument it appears that the crime has been committed. In the case of robbery, an examination will be made, and the escribano shall detail and certify the marks of violence on the house of the furniture, indicating that said crime has been committed. The same statement of facts shall also be made in all crimes : a formality which is the basis of judicial proceedings, and without which the criminal cannot be prosecuted. The judge shall, at the same time, order that the information be taken and the witnesses heard.
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 before mentioned, 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 sail inquiries in person, unless unavoid- ably prevented; in which case he may intrust the same to the register
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If, however, the crime be established, and the criminal unknown, every inquiry, search and examination necessary to obtain a knowledge of the said criminal shall be made.
4. When the inquiries have been made, verifying the crime, and the criminal is known, if two witnesses appear. or one witness of credit, joined to other circumstances, proving him to be the offender, the judge shall cirect 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 it appears 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 ; of which, the judge shall direct the escribano to certify that the term has expired, if the jailer affirm that the offender has not ap- peared. 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 terin of nine days. On the expiration of this second delay the escribano and jailer shall certify as before ; after which the judge shall issue an order for his arrest, and direct the publica- tion of the same, as also the continuance of the proclamation aforesaid These last nine days being expired, the escribano shall again certify there- to, and the jailer shall affirin that the accused has not appeared at the prison. The judge shall then declare him fully convicted of contumacy ; and if there be no prosecutor, a procurator fiscal shall be appointed to take the necessary steps in the case; but if there be a prosecutor, the canse . . shall be committed to him that he may proceed therein as he may think best, in order to bring the same before the tribunal, in which provisional judgments are given, 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.
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7. If, however, previous to, or after the sentence, the accused shall pre- sent himself at the prison, the cause shall be instituted anew, and the de- fence of the accused shall be heard with attention ; and upon what the prosecutor or the procurator fiscal may set forth in opposition thereto, the previous sentence shall be either confirmed or annulled, according to the documents reproduced on the trial.
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