Every assertion below is bound to registered sources and carries its own confidence. Weight them; do not treat the page as uniformly authoritative.
The question is put from a suit the author says he saw argued, and it is one of the few named cases in this part of the book. At §13 of libro III, capítulo XXXI of the Política Indiana "Pero en esta materia es muy digna de notar, y tratar una question, que ya de hecho ví ventilar en un pleyto entre Doña Maria Faxardo de Villarroél, y D. Juan Roldán Davila, vecinos de la Ciudad de Lima: conviene à saber, si en el Libelo, ò Peticion en que uno pone à otro demanda en possession, ò en propiedad sobre alguna Encomienda, se huviessen tambien pedido juntamente los frutos, y al cabo se pronunciasse sentencia de Revista, que passó en autoridad de cosa juzgada, mandando restituir sola la Encomienda, sin hacer mencion de los frutos, si será visto haver querido absolver en quanto à ellos al Reo, ò si se debe tener, y juzgar por omitido este punto, de suerte, que sobre él, sin embargo de la cosa juzgada, se pueda formar, è instaurar nuevo pleyto?" The page names the two parties and that they were vecinos of Lima and gives nothing else — no court, no date, no encomienda, no sum and no relief. Nothing outside this book was opened on either of them and no identification with any similarly named person is offered here. This entry is scoped to §§13-23.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§13-23 — whether fruits asked for in an encomienda suit but omitted in the judgment may be claimed in a fresh suit: the question at §13, which the author says he saw ventilated in fact in a suit between Doña María Faxardo de Villarroel and D. Juan Roldán Dávila, vecinos of the city of Lima, namely whether, where the libel demanding an encomienda in possession or in property also asked for the fruits and the sentence of revista that passed in authority of res judicata ordered only the encomienda restored without mentioning the fruits, the defendant is to be seen as absolved of them or the point held omitted so that a new suit may be formed upon it notwithstanding the res judicata; the arguments for the affirmative at §§14-18 — that in universal suits such as those formed over encomiendas the fruits are contained by the nature of the action and as part of the thing even when not specified, that condemning in the encomienda is virtually condemning in the fruits, that the ordinary learning holds the affirmative truer still where the restitutory interdict called recuperandæ is in question and that Surdo concludes it is not even necessary for the plaintiff to have expressly asked the fruits, that even if the suit be not called universal a new trial must at least be permitted, that express texts prove fruits, expenses or usury owed by a right of obligation may be demanded in a new trial though not asked or determined in the preceding one, and that Don Cristóbal de Paz used the same doctrines for the tenutas of mayorazgos; the author's contrary resolution at §19, 'y assi se sentenció en el pleyto, que he referido', that where the fruits were expressly asked and deduced in trial and nevertheless omitted in the sentence the omission is held as denial or absolution of them and no new suit may be instaured once the principal is determined and executed; the reason at §20 that new suits must not be born of the close and ending of others; the answer at §§21-22 that the contrary texts proceed in fruits or usury for which a particular obligation and stipulation intervened, which may indeed be deduced in a fresh action, and that in strict law the trial over the dominion and that over the fruits cannot be cumulated although practice has introduced their being asked in one libel and trial; and at §23 the two conditions for fruits to be owed in universal suits without express petition and condemnation, that they be asked while the suit is pending and that they come by the nature of the action intended, in which Don Juan del Castillo concurs · primary
The first argument for reopening rests on what kind of suit an encomienda suit is. At §14 "Y parece, se podria decir à primera vista, que esta omission no se debe tener por absolucion; sino antes por condenacion, porque en los juicios universales, quales son, los que se forman sobre estas Encomiendas, se contienen, y comprehenden los frutos por naturaleza de la misma accion, y como parte de la Encomienda", so that at §15 a condemnation in the encomienda "se puede entender, que virtualmente la hizo sobre los frutos, que son parte, y accession suya", the more so in the restitutory interdict "que llaman Recuperandæ. Y con solo conceder, ò mandar transferir la propiedad, son vistos darse, y transferirse los frutos, y todas las utilidades, y accessiones de la cosa, que se restituye, pues son parte de ella", with Surdo concluding "que aun no es necessario, que el Actor aya pedido expressamente los frutos, y que basta que aya pedido justicia, y que se dé sentencia por él en lo favorable."
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§13-23 — whether fruits asked for in an encomienda suit but omitted in the judgment may be claimed in a fresh suit: the question at §13, which the author says he saw ventilated in fact in a suit between Doña María Faxardo de Villarroel and D. Juan Roldán Dávila, vecinos of the city of Lima, namely whether, where the libel demanding an encomienda in possession or in property also asked for the fruits and the sentence of revista that passed in authority of res judicata ordered only the encomienda restored without mentioning the fruits, the defendant is to be seen as absolved of them or the point held omitted so that a new suit may be formed upon it notwithstanding the res judicata; the arguments for the affirmative at §§14-18 — that in universal suits such as those formed over encomiendas the fruits are contained by the nature of the action and as part of the thing even when not specified, that condemning in the encomienda is virtually condemning in the fruits, that the ordinary learning holds the affirmative truer still where the restitutory interdict called recuperandæ is in question and that Surdo concludes it is not even necessary for the plaintiff to have expressly asked the fruits, that even if the suit be not called universal a new trial must at least be permitted, that express texts prove fruits, expenses or usury owed by a right of obligation may be demanded in a new trial though not asked or determined in the preceding one, and that Don Cristóbal de Paz used the same doctrines for the tenutas of mayorazgos; the author's contrary resolution at §19, 'y assi se sentenció en el pleyto, que he referido', that where the fruits were expressly asked and deduced in trial and nevertheless omitted in the sentence the omission is held as denial or absolution of them and no new suit may be instaured once the principal is determined and executed; the reason at §20 that new suits must not be born of the close and ending of others; the answer at §§21-22 that the contrary texts proceed in fruits or usury for which a particular obligation and stipulation intervened, which may indeed be deduced in a fresh action, and that in strict law the trial over the dominion and that over the fruits cannot be cumulated although practice has introduced their being asked in one libel and trial; and at §23 the two conditions for fruits to be owed in universal suits without express petition and condemnation, that they be asked while the suit is pending and that they come by the nature of the action intended, in which Don Juan del Castillo concurs · primary
The second argument concedes the opposite premise and still gets to a new trial. At §16 "Lo segundo, hace en favor de esta misma parte, que aun quando à este juicio no le hagamos, y llamemos universal: y vamos con la opinion de otros DD, que dicen, que la omission de los frutos en la sentencia no induce condenacion, por ser stricti juris, y que solo comprehende lo especificado, y lo omitido se tiene por omitido. Por lo menos parece, que no podemos negar, que se deba permitir, formar, è instaurar nuevo juicio sobre estos frutos, pues en el caso, de que tratamos, no solo se deben de oficio del Juez, y como accessorios à la Encomienda, de que se pleytéa; sino como parte de ella."
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§13-23 — whether fruits asked for in an encomienda suit but omitted in the judgment may be claimed in a fresh suit: the question at §13, which the author says he saw ventilated in fact in a suit between Doña María Faxardo de Villarroel and D. Juan Roldán Dávila, vecinos of the city of Lima, namely whether, where the libel demanding an encomienda in possession or in property also asked for the fruits and the sentence of revista that passed in authority of res judicata ordered only the encomienda restored without mentioning the fruits, the defendant is to be seen as absolved of them or the point held omitted so that a new suit may be formed upon it notwithstanding the res judicata; the arguments for the affirmative at §§14-18 — that in universal suits such as those formed over encomiendas the fruits are contained by the nature of the action and as part of the thing even when not specified, that condemning in the encomienda is virtually condemning in the fruits, that the ordinary learning holds the affirmative truer still where the restitutory interdict called recuperandæ is in question and that Surdo concludes it is not even necessary for the plaintiff to have expressly asked the fruits, that even if the suit be not called universal a new trial must at least be permitted, that express texts prove fruits, expenses or usury owed by a right of obligation may be demanded in a new trial though not asked or determined in the preceding one, and that Don Cristóbal de Paz used the same doctrines for the tenutas of mayorazgos; the author's contrary resolution at §19, 'y assi se sentenció en el pleyto, que he referido', that where the fruits were expressly asked and deduced in trial and nevertheless omitted in the sentence the omission is held as denial or absolution of them and no new suit may be instaured once the principal is determined and executed; the reason at §20 that new suits must not be born of the close and ending of others; the answer at §§21-22 that the contrary texts proceed in fruits or usury for which a particular obligation and stipulation intervened, which may indeed be deduced in a fresh action, and that in strict law the trial over the dominion and that over the fruits cannot be cumulated although practice has introduced their being asked in one libel and trial; and at §23 the two conditions for fruits to be owed in universal suits without express petition and condemnation, that they be asked while the suit is pending and that they come by the nature of the action intended, in which Don Juan del Castillo concurs · primary
The third and fourth arguments add texts and a Castilian analogy. At §17 there are "muchos, y expressos textos, que prueban, que quando los frutos, expensas, ò usuras se nos deben de forma, que tenemos derecho de obligacion, y accion para pedirlos, y demandarlos, se pueden pedir, y demandar en nuevo juicio, aunque no se hallen pedidos, ò sentenciados, y determinados en el que precedió cerca del negocio principal", the Glossa and the doctors adding "por proposicion mas general, que ninguna cosa, que se halle omitida en las sentencias puede inducir absolucion, ni condenacion." At §18 the doctrine of Angelo is invoked, "de las quales doctrinas se aprovechó bien Don Christoval de Paz, tratando de las Tenutas de los Mayorazgos, y probando, que aunque en estas se admite suplicacion, todavia se puede formar nueva instancia sobre los frutos, si es, que no se pidieron al tiempo de poner la demanda de la Tenuta, ò se omitieron en la sentencia."
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§13-23 — whether fruits asked for in an encomienda suit but omitted in the judgment may be claimed in a fresh suit: the question at §13, which the author says he saw ventilated in fact in a suit between Doña María Faxardo de Villarroel and D. Juan Roldán Dávila, vecinos of the city of Lima, namely whether, where the libel demanding an encomienda in possession or in property also asked for the fruits and the sentence of revista that passed in authority of res judicata ordered only the encomienda restored without mentioning the fruits, the defendant is to be seen as absolved of them or the point held omitted so that a new suit may be formed upon it notwithstanding the res judicata; the arguments for the affirmative at §§14-18 — that in universal suits such as those formed over encomiendas the fruits are contained by the nature of the action and as part of the thing even when not specified, that condemning in the encomienda is virtually condemning in the fruits, that the ordinary learning holds the affirmative truer still where the restitutory interdict called recuperandæ is in question and that Surdo concludes it is not even necessary for the plaintiff to have expressly asked the fruits, that even if the suit be not called universal a new trial must at least be permitted, that express texts prove fruits, expenses or usury owed by a right of obligation may be demanded in a new trial though not asked or determined in the preceding one, and that Don Cristóbal de Paz used the same doctrines for the tenutas of mayorazgos; the author's contrary resolution at §19, 'y assi se sentenció en el pleyto, que he referido', that where the fruits were expressly asked and deduced in trial and nevertheless omitted in the sentence the omission is held as denial or absolution of them and no new suit may be instaured once the principal is determined and executed; the reason at §20 that new suits must not be born of the close and ending of others; the answer at §§21-22 that the contrary texts proceed in fruits or usury for which a particular obligation and stipulation intervened, which may indeed be deduced in a fresh action, and that in strict law the trial over the dominion and that over the fruits cannot be cumulated although practice has introduced their being asked in one libel and trial; and at §23 the two conditions for fruits to be owed in universal suits without express petition and condemnation, that they be asked while the suit is pending and that they come by the nature of the action intended, in which Don Juan del Castillo concurs · primary
Having built the case for reopening across five paragraphs, the author rejects it, and says the Lima suit went the same way. At §19 "Pero no obstante estos argumentos, Yo en la question propuesta tengo todavia por mas cierto lo contrario, y assi se sentenció en el pleyto, que he referido. Porque quando expressamente se pidieron los frutos, y se deduxeron en juicio, y sin embargo se omitieron en la sentencia, esta omission se tiene como por denegacion, ò absolucion de ellos, y la causa una vez determinada, y executoriada yá sobre lo principal, no se permite formar, ò instaurar de nuevo por ocasion de los frutos, usuras, ò expensas, ù otras semejantes acciones." The distinction that carries the result is between fruits merely omitted and fruits expressly claimed and litigated and then passed over in silence: silence about a live issue is a decision against it.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§13-23 — whether fruits asked for in an encomienda suit but omitted in the judgment may be claimed in a fresh suit: the question at §13, which the author says he saw ventilated in fact in a suit between Doña María Faxardo de Villarroel and D. Juan Roldán Dávila, vecinos of the city of Lima, namely whether, where the libel demanding an encomienda in possession or in property also asked for the fruits and the sentence of revista that passed in authority of res judicata ordered only the encomienda restored without mentioning the fruits, the defendant is to be seen as absolved of them or the point held omitted so that a new suit may be formed upon it notwithstanding the res judicata; the arguments for the affirmative at §§14-18 — that in universal suits such as those formed over encomiendas the fruits are contained by the nature of the action and as part of the thing even when not specified, that condemning in the encomienda is virtually condemning in the fruits, that the ordinary learning holds the affirmative truer still where the restitutory interdict called recuperandæ is in question and that Surdo concludes it is not even necessary for the plaintiff to have expressly asked the fruits, that even if the suit be not called universal a new trial must at least be permitted, that express texts prove fruits, expenses or usury owed by a right of obligation may be demanded in a new trial though not asked or determined in the preceding one, and that Don Cristóbal de Paz used the same doctrines for the tenutas of mayorazgos; the author's contrary resolution at §19, 'y assi se sentenció en el pleyto, que he referido', that where the fruits were expressly asked and deduced in trial and nevertheless omitted in the sentence the omission is held as denial or absolution of them and no new suit may be instaured once the principal is determined and executed; the reason at §20 that new suits must not be born of the close and ending of others; the answer at §§21-22 that the contrary texts proceed in fruits or usury for which a particular obligation and stipulation intervened, which may indeed be deduced in a fresh action, and that in strict law the trial over the dominion and that over the fruits cannot be cumulated although practice has introduced their being asked in one libel and trial; and at §23 the two conditions for fruits to be owed in universal suits without express petition and condemnation, that they be asked while the suit is pending and that they come by the nature of the action intended, in which Don Juan del Castillo concurs · primary
The reason given is a policy about litigation itself. At §20 "Y todos dàn por razon, que no deben nacer nuevos pleytos del remate, y fenecimiento de otros. Y que aunque pueda ser verdad, que los frutos son como parte de la cosa, de que proceden, y debidos igualmente por la misma accion, y derecho. Sin embargo no se puede negar, que se piden comunmente, y en un propio libelo, como accessorios de ella", so that "acabado por las sentencias passadas en cosa juzgada el pleyto sobre lo principal, no queda en qué estrive, o sobre qué se pueda instaurar otro nuevo sobre lo accessorio." For a colonial litigant the practical weight of that rule was large: a suit reopened over fruits meant, in the cases that exceeded a thousand ducats of rent, a second passage to a council sitting in Madrid.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§13-23 — whether fruits asked for in an encomienda suit but omitted in the judgment may be claimed in a fresh suit: the question at §13, which the author says he saw ventilated in fact in a suit between Doña María Faxardo de Villarroel and D. Juan Roldán Dávila, vecinos of the city of Lima, namely whether, where the libel demanding an encomienda in possession or in property also asked for the fruits and the sentence of revista that passed in authority of res judicata ordered only the encomienda restored without mentioning the fruits, the defendant is to be seen as absolved of them or the point held omitted so that a new suit may be formed upon it notwithstanding the res judicata; the arguments for the affirmative at §§14-18 — that in universal suits such as those formed over encomiendas the fruits are contained by the nature of the action and as part of the thing even when not specified, that condemning in the encomienda is virtually condemning in the fruits, that the ordinary learning holds the affirmative truer still where the restitutory interdict called recuperandæ is in question and that Surdo concludes it is not even necessary for the plaintiff to have expressly asked the fruits, that even if the suit be not called universal a new trial must at least be permitted, that express texts prove fruits, expenses or usury owed by a right of obligation may be demanded in a new trial though not asked or determined in the preceding one, and that Don Cristóbal de Paz used the same doctrines for the tenutas of mayorazgos; the author's contrary resolution at §19, 'y assi se sentenció en el pleyto, que he referido', that where the fruits were expressly asked and deduced in trial and nevertheless omitted in the sentence the omission is held as denial or absolution of them and no new suit may be instaured once the principal is determined and executed; the reason at §20 that new suits must not be born of the close and ending of others; the answer at §§21-22 that the contrary texts proceed in fruits or usury for which a particular obligation and stipulation intervened, which may indeed be deduced in a fresh action, and that in strict law the trial over the dominion and that over the fruits cannot be cumulated although practice has introduced their being asked in one libel and trial; and at §23 the two conditions for fruits to be owed in universal suits without express petition and condemnation, that they be asked while the suit is pending and that they come by the nature of the action intended, in which Don Juan del Castillo concurs · primary
The contrary authorities are then confined rather than denied, and the limit leaves a real opening. At §21 they proceed "en usuras, ò frutos, por los quales se hizo, è intervino particular obligacion, y estipulacion. Porque estos, si de ellos no se hizo especial mencion en la sentencia, ò se dexaron de pedir en el primer pleyto, que se formò sobre la cosa, ò suerte principal, se podrán deducir en otro por derecho de nueva accion." At §22 the author adds that in strict law the suit over the dominion of a thing and the suit over its fruits "no se puede comular, aunque la practica, como queda apuntado, ha introducido, que se pidan en un mismo libelo, y juicio" — the practice of joining them being precisely what makes the omission fatal.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§13-23 — whether fruits asked for in an encomienda suit but omitted in the judgment may be claimed in a fresh suit: the question at §13, which the author says he saw ventilated in fact in a suit between Doña María Faxardo de Villarroel and D. Juan Roldán Dávila, vecinos of the city of Lima, namely whether, where the libel demanding an encomienda in possession or in property also asked for the fruits and the sentence of revista that passed in authority of res judicata ordered only the encomienda restored without mentioning the fruits, the defendant is to be seen as absolved of them or the point held omitted so that a new suit may be formed upon it notwithstanding the res judicata; the arguments for the affirmative at §§14-18 — that in universal suits such as those formed over encomiendas the fruits are contained by the nature of the action and as part of the thing even when not specified, that condemning in the encomienda is virtually condemning in the fruits, that the ordinary learning holds the affirmative truer still where the restitutory interdict called recuperandæ is in question and that Surdo concludes it is not even necessary for the plaintiff to have expressly asked the fruits, that even if the suit be not called universal a new trial must at least be permitted, that express texts prove fruits, expenses or usury owed by a right of obligation may be demanded in a new trial though not asked or determined in the preceding one, and that Don Cristóbal de Paz used the same doctrines for the tenutas of mayorazgos; the author's contrary resolution at §19, 'y assi se sentenció en el pleyto, que he referido', that where the fruits were expressly asked and deduced in trial and nevertheless omitted in the sentence the omission is held as denial or absolution of them and no new suit may be instaured once the principal is determined and executed; the reason at §20 that new suits must not be born of the close and ending of others; the answer at §§21-22 that the contrary texts proceed in fruits or usury for which a particular obligation and stipulation intervened, which may indeed be deduced in a fresh action, and that in strict law the trial over the dominion and that over the fruits cannot be cumulated although practice has introduced their being asked in one libel and trial; and at §23 the two conditions for fruits to be owed in universal suits without express petition and condemnation, that they be asked while the suit is pending and that they come by the nature of the action intended, in which Don Juan del Castillo concurs · primary
The run closes with two conditions that a claim for unasked fruits had to meet. At §23 the author denies that the distinction between universal and particular suits makes any difference here, and adds that even in universal suits the fruits seem owed along with the thing "quando se perciben despues de la contestacion; pero no antes, si sobre ellos no intervino pedimento, y expressa condenacion", so that two conditions are necessary: "la primera, que los frutos se pidan pendiente el pleyto: y la segunda, que los tales frutos vengan, y se deban por naturaleza de la accion intentada, en lo qual tambien, citando à otros muchos, conviene Don Juan del Castillo."
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§13-23 — whether fruits asked for in an encomienda suit but omitted in the judgment may be claimed in a fresh suit: the question at §13, which the author says he saw ventilated in fact in a suit between Doña María Faxardo de Villarroel and D. Juan Roldán Dávila, vecinos of the city of Lima, namely whether, where the libel demanding an encomienda in possession or in property also asked for the fruits and the sentence of revista that passed in authority of res judicata ordered only the encomienda restored without mentioning the fruits, the defendant is to be seen as absolved of them or the point held omitted so that a new suit may be formed upon it notwithstanding the res judicata; the arguments for the affirmative at §§14-18 — that in universal suits such as those formed over encomiendas the fruits are contained by the nature of the action and as part of the thing even when not specified, that condemning in the encomienda is virtually condemning in the fruits, that the ordinary learning holds the affirmative truer still where the restitutory interdict called recuperandæ is in question and that Surdo concludes it is not even necessary for the plaintiff to have expressly asked the fruits, that even if the suit be not called universal a new trial must at least be permitted, that express texts prove fruits, expenses or usury owed by a right of obligation may be demanded in a new trial though not asked or determined in the preceding one, and that Don Cristóbal de Paz used the same doctrines for the tenutas of mayorazgos; the author's contrary resolution at §19, 'y assi se sentenció en el pleyto, que he referido', that where the fruits were expressly asked and deduced in trial and nevertheless omitted in the sentence the omission is held as denial or absolution of them and no new suit may be instaured once the principal is determined and executed; the reason at §20 that new suits must not be born of the close and ending of others; the answer at §§21-22 that the contrary texts proceed in fruits or usury for which a particular obligation and stipulation intervened, which may indeed be deduced in a fresh action, and that in strict law the trial over the dominion and that over the fruits cannot be cumulated although practice has introduced their being asked in one libel and trial; and at §23 the two conditions for fruits to be owed in universal suits without express petition and condemnation, that they be asked while the suit is pending and that they come by the nature of the action intended, in which Don Juan del Castillo concurs · primary
What this entry establishes and what it does not. It establishes that the standard seventeenth-century treatise on the government of the Spanish Indies treated the res judicata effect of a colonial judgment as a live and argued question; that its author put the question from a suit between Doña María Faxardo de Villarroel and D. Juan Roldán Dávila, vecinos of Lima, which he says he saw argued and which he says was decided in the sense he defends; that he set out at length the arguments for allowing a second suit — the universality of encomienda actions, the accessory character of fruits, the general proposition that nothing omitted in a sentence induces either absolution or condemnation, and Don Cristóbal de Paz's use of the same doctrines for the tenutas of mayorazgos — before rejecting them; that his rule was that fruits expressly claimed, litigated and then omitted are held denied, on the policy that new suits must not be born of the ending of others; and that the exception he left open was for fruits owed by a particular obligation and stipulation, which may be deduced in a fresh action. It establishes nothing about the Lima suit beyond the two names, the city and the author's statement of how it was decided: no court, no date, no encomienda, no sum and no relief are on the page, and no independent record of it was opened. It is also doctrine reported by an interested observer — Solórzano sat on the Audiencia of Lima before he sat on the Council of the Indies — and it decides only which of two Spanish claimants kept the tribute of an Indian town; the town itself is not a party, and nothing here turns on what it had paid or was owed.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§13-23 — whether fruits asked for in an encomienda suit but omitted in the judgment may be claimed in a fresh suit: the question at §13, which the author says he saw ventilated in fact in a suit between Doña María Faxardo de Villarroel and D. Juan Roldán Dávila, vecinos of the city of Lima, namely whether, where the libel demanding an encomienda in possession or in property also asked for the fruits and the sentence of revista that passed in authority of res judicata ordered only the encomienda restored without mentioning the fruits, the defendant is to be seen as absolved of them or the point held omitted so that a new suit may be formed upon it notwithstanding the res judicata; the arguments for the affirmative at §§14-18 — that in universal suits such as those formed over encomiendas the fruits are contained by the nature of the action and as part of the thing even when not specified, that condemning in the encomienda is virtually condemning in the fruits, that the ordinary learning holds the affirmative truer still where the restitutory interdict called recuperandæ is in question and that Surdo concludes it is not even necessary for the plaintiff to have expressly asked the fruits, that even if the suit be not called universal a new trial must at least be permitted, that express texts prove fruits, expenses or usury owed by a right of obligation may be demanded in a new trial though not asked or determined in the preceding one, and that Don Cristóbal de Paz used the same doctrines for the tenutas of mayorazgos; the author's contrary resolution at §19, 'y assi se sentenció en el pleyto, que he referido', that where the fruits were expressly asked and deduced in trial and nevertheless omitted in the sentence the omission is held as denial or absolution of them and no new suit may be instaured once the principal is determined and executed; the reason at §20 that new suits must not be born of the close and ending of others; the answer at §§21-22 that the contrary texts proceed in fruits or usury for which a particular obligation and stipulation intervened, which may indeed be deduced in a fresh action, and that in strict law the trial over the dominion and that over the fruits cannot be cumulated although practice has introduced their being asked in one libel and trial; and at §23 the two conditions for fruits to be owed in universal suits without express petition and condemnation, that they be asked while the suit is pending and that they come by the nature of the action intended, in which Don Juan del Castillo concurs · primary