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 closing the chapter is a jurisdictional one created by distance, and the author credits it to Matienzo glossing the ley de Malinas. At §24 of libro III, capítulo XXXI of the Política Indiana the doubt is whether, a suit over an encomienda having been remitted to the Royal Council in conformity with the cédulas, "sucediesse morir el posseedor de la tal Encomienda, y tambien el que litigaba con él sobre la propriedad, sin dexar el uno, ni el otro heredero, que conforme à la ley de la succession les pueda succeder en la Encomienda, si se havrá de proseguir todavia en el dicho Real Consejo el pleyto por razon de los frutos, que los herederos de los bienes libres de los litigantes pretenden pertenecerles, ò se avrá de remitir, y devolver … à la Audiencia de las Indias del partido, donde estuviere situada la Encomienda, para que alli los herederos formen, ò instauren nuevo juicio sobre este punto, si les pareciere, que les conviene?" This entry is scoped to §§24-39, the chapter's closing run.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§24-39 — whether a suit over the fruits of an encomienda survives the death of both litigants and stays in the Council of the Indies: the question at §24, which the author says Matienzo raised on the ley de Malinas, namely what happens where a suit over an encomienda has been remitted to the Royal Council in conformity with the cédulas and both the holder and the party litigating with him over the property die without leaving an heir who by the law of succession could succeed in the encomienda — whether the suit is still to be prosecuted in the Council for the fruits that the heirs of the litigants' free goods claim belong to them, or remitted and returned to the Audiencia of the Indies of the district where the encomienda lay so that the heirs may form or instaure a new trial there; Matienzo's answer at §25 that the latter is truer, because with the death of both litigants the principal of the encomienda, out of regard for which the cause had been carried to the Council, was at an end, so that the accessory could not stop there, and because a disposition that is not perfect and consummated is vitiated if it comes to lack what it could not have had at its beginning; the author's own addition at §26 that the death of the litigants ended the instance of that trial, the more so as the Council proceeded there by particular delegation which, being restricted, does not extend beyond the persons, things and causes expressed in the rescript; the reply and answer at §§27-29 on whether the instance passes to heirs who are capable of the fruits though not of the encomienda, limited by the rule that it passes only to him who succeeds in the same right of the deceased, with Vincenzo de Franchis and Rosenthal on feudal causes; the concession at §30 that the author does not depart from Matienzo's opinion where the heirs wish to begin a new suit over these fruits in the Audiencias of the Indies, 'porque esso bien lo podrán hacer, pues yá no pleytean sobre Encomienda; sino sobre cosa nueva, y distinta, y separada de ella'; his contrary opinion at §§31-32 that where the parties wish to follow the instance in the Council the jurisdiction, instance and trial begun there endure at least as to the fruits, that heirs and the deceased litigants' attorneys may continue it, and that in strict law no fresh citation of those heirs is necessary though others hold it safer that they be cited; the texts pondered in favour at §§33-35, that a suit already contested may be prosecuted before the same judge for the offspring, fruits or interests although the slave or thing sued for has perished, with the examples of the dead ox; the law of the Code by which, a married man's cause over whether he was slave or free being begun and he dying pending, the instance still lasts and his wife may ask that it be ended and sentenced for the interest of the inheritance and the honour of the deceased; and Otálora's and Juan García's doctrine that the heirs of one who litigated hidalguía, even strangers, may ask that the suit be pursued after his death before the particular judges deputed for those causes, at least so that the pledges taken from the deceased by reason of the pechos and tributes from which he claimed to be free be returned and he be struck from the padrón; the argument at §36 that if, as Matienzo would have it, these causes went to the Audiencias of the Indies to determine to whom the fruits belong, those Audiencias would first have to know to which of the dead litigants the encomienda would have belonged had they not died, a cognizance from which they are inhibited; the additions at §§37-38 that where one cause is prejudicial to another the instance always passes to the heirs, and that even without such force the opinion should be received in rigour of law for the equity it contains and for the briefer and easier dispatch of suits; and the close at §39 that all of this is worth keeping in memory for practice 'no solo en pleytos de Encomiendas, que ya son raros, sino de Tenutas, y segundas suplicaciones, que penden en los Consejos', so that causes be not remitted to the Chancillerías to be litigated anew — 'como estos dias aconteció, y se pronunció en el Supremo de Justicia en la causa, que en él pendia sobre el Condado de Baylén entre los Señores Duque de Arcos, y D. Diego de Cardenas, como heredero de la señora Doña Catalina Ponce de Leon, su muger pretensora del dicho Condado, en que Yo fui Juez entre otros, que se nombraron para determinarla' · primary
Matienzo's answer is that the case goes back, and the author first strengthens it. At §25 "hàllo, que en esta question Matienzo tiene esta ultima parte por mas verdadera, y substentable en Derecho. Moviendose, en que acabado por muerte de ambos Litigantes el principal de la Encomienda, por cuya contemplacion se havia llevado la causa al Consejo, no pudo parar en el lo accessorio segun las reglas vulgares". At §26 the author adds a reason he calls more substantial still: "con la muerte de los Litigantes se acabó la instancia de aquel juicio, segun lo dispuesto en Derecho. Y mas quando en él se procedia por particular delegacion, ò comission, qual es, la que en este caso se dió al Consejo: porque entonces por ser coartada, no se estiende à otras personas, cosas, ò causas fuera de las contenidas, y expressadas en el rescripto."
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§24-39 — whether a suit over the fruits of an encomienda survives the death of both litigants and stays in the Council of the Indies: the question at §24, which the author says Matienzo raised on the ley de Malinas, namely what happens where a suit over an encomienda has been remitted to the Royal Council in conformity with the cédulas and both the holder and the party litigating with him over the property die without leaving an heir who by the law of succession could succeed in the encomienda — whether the suit is still to be prosecuted in the Council for the fruits that the heirs of the litigants' free goods claim belong to them, or remitted and returned to the Audiencia of the Indies of the district where the encomienda lay so that the heirs may form or instaure a new trial there; Matienzo's answer at §25 that the latter is truer, because with the death of both litigants the principal of the encomienda, out of regard for which the cause had been carried to the Council, was at an end, so that the accessory could not stop there, and because a disposition that is not perfect and consummated is vitiated if it comes to lack what it could not have had at its beginning; the author's own addition at §26 that the death of the litigants ended the instance of that trial, the more so as the Council proceeded there by particular delegation which, being restricted, does not extend beyond the persons, things and causes expressed in the rescript; the reply and answer at §§27-29 on whether the instance passes to heirs who are capable of the fruits though not of the encomienda, limited by the rule that it passes only to him who succeeds in the same right of the deceased, with Vincenzo de Franchis and Rosenthal on feudal causes; the concession at §30 that the author does not depart from Matienzo's opinion where the heirs wish to begin a new suit over these fruits in the Audiencias of the Indies, 'porque esso bien lo podrán hacer, pues yá no pleytean sobre Encomienda; sino sobre cosa nueva, y distinta, y separada de ella'; his contrary opinion at §§31-32 that where the parties wish to follow the instance in the Council the jurisdiction, instance and trial begun there endure at least as to the fruits, that heirs and the deceased litigants' attorneys may continue it, and that in strict law no fresh citation of those heirs is necessary though others hold it safer that they be cited; the texts pondered in favour at §§33-35, that a suit already contested may be prosecuted before the same judge for the offspring, fruits or interests although the slave or thing sued for has perished, with the examples of the dead ox; the law of the Code by which, a married man's cause over whether he was slave or free being begun and he dying pending, the instance still lasts and his wife may ask that it be ended and sentenced for the interest of the inheritance and the honour of the deceased; and Otálora's and Juan García's doctrine that the heirs of one who litigated hidalguía, even strangers, may ask that the suit be pursued after his death before the particular judges deputed for those causes, at least so that the pledges taken from the deceased by reason of the pechos and tributes from which he claimed to be free be returned and he be struck from the padrón; the argument at §36 that if, as Matienzo would have it, these causes went to the Audiencias of the Indies to determine to whom the fruits belong, those Audiencias would first have to know to which of the dead litigants the encomienda would have belonged had they not died, a cognizance from which they are inhibited; the additions at §§37-38 that where one cause is prejudicial to another the instance always passes to the heirs, and that even without such force the opinion should be received in rigour of law for the equity it contains and for the briefer and easier dispatch of suits; and the close at §39 that all of this is worth keeping in memory for practice 'no solo en pleytos de Encomiendas, que ya son raros, sino de Tenutas, y segundas suplicaciones, que penden en los Consejos', so that causes be not remitted to the Chancillerías to be litigated anew — 'como estos dias aconteció, y se pronunció en el Supremo de Justicia en la causa, que en él pendia sobre el Condado de Baylén entre los Señores Duque de Arcos, y D. Diego de Cardenas, como heredero de la señora Doña Catalina Ponce de Leon, su muger pretensora del dicho Condado, en que Yo fui Juez entre otros, que se nombraron para determinarla' · primary
The limiting rule that does the work is about who succeeds to what. At §28 the general rule that an instance passes to heirs holds only "en el que sucede en el mismo derecho del difunto; pero no en el que se le sucede en otros bienes, y en qualquier otro modo, extincto yá, y acabado aquel derecho, por cuya ocasion se comenzó la instancia", and at §29, on feudal causes, Vincenzo de Franchis and the authorities collected by Rosenthal say "que quando la cosa, sobre que se pleyteó, no puede passar à heredero estraño, cessa la instancia por la muerte del litigante, y solo passa al successor en el Feudo, y no al que entra en los demás bienes del difunto por derecho hereditario." An encomienda passed by a law of succession of its own and not as ordinary inheritance, which is what makes the heirs of the free goods strangers to it.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§24-39 — whether a suit over the fruits of an encomienda survives the death of both litigants and stays in the Council of the Indies: the question at §24, which the author says Matienzo raised on the ley de Malinas, namely what happens where a suit over an encomienda has been remitted to the Royal Council in conformity with the cédulas and both the holder and the party litigating with him over the property die without leaving an heir who by the law of succession could succeed in the encomienda — whether the suit is still to be prosecuted in the Council for the fruits that the heirs of the litigants' free goods claim belong to them, or remitted and returned to the Audiencia of the Indies of the district where the encomienda lay so that the heirs may form or instaure a new trial there; Matienzo's answer at §25 that the latter is truer, because with the death of both litigants the principal of the encomienda, out of regard for which the cause had been carried to the Council, was at an end, so that the accessory could not stop there, and because a disposition that is not perfect and consummated is vitiated if it comes to lack what it could not have had at its beginning; the author's own addition at §26 that the death of the litigants ended the instance of that trial, the more so as the Council proceeded there by particular delegation which, being restricted, does not extend beyond the persons, things and causes expressed in the rescript; the reply and answer at §§27-29 on whether the instance passes to heirs who are capable of the fruits though not of the encomienda, limited by the rule that it passes only to him who succeeds in the same right of the deceased, with Vincenzo de Franchis and Rosenthal on feudal causes; the concession at §30 that the author does not depart from Matienzo's opinion where the heirs wish to begin a new suit over these fruits in the Audiencias of the Indies, 'porque esso bien lo podrán hacer, pues yá no pleytean sobre Encomienda; sino sobre cosa nueva, y distinta, y separada de ella'; his contrary opinion at §§31-32 that where the parties wish to follow the instance in the Council the jurisdiction, instance and trial begun there endure at least as to the fruits, that heirs and the deceased litigants' attorneys may continue it, and that in strict law no fresh citation of those heirs is necessary though others hold it safer that they be cited; the texts pondered in favour at §§33-35, that a suit already contested may be prosecuted before the same judge for the offspring, fruits or interests although the slave or thing sued for has perished, with the examples of the dead ox; the law of the Code by which, a married man's cause over whether he was slave or free being begun and he dying pending, the instance still lasts and his wife may ask that it be ended and sentenced for the interest of the inheritance and the honour of the deceased; and Otálora's and Juan García's doctrine that the heirs of one who litigated hidalguía, even strangers, may ask that the suit be pursued after his death before the particular judges deputed for those causes, at least so that the pledges taken from the deceased by reason of the pechos and tributes from which he claimed to be free be returned and he be struck from the padrón; the argument at §36 that if, as Matienzo would have it, these causes went to the Audiencias of the Indies to determine to whom the fruits belong, those Audiencias would first have to know to which of the dead litigants the encomienda would have belonged had they not died, a cognizance from which they are inhibited; the additions at §§37-38 that where one cause is prejudicial to another the instance always passes to the heirs, and that even without such force the opinion should be received in rigour of law for the equity it contains and for the briefer and easier dispatch of suits; and the close at §39 that all of this is worth keeping in memory for practice 'no solo en pleytos de Encomiendas, que ya son raros, sino de Tenutas, y segundas suplicaciones, que penden en los Consejos', so that causes be not remitted to the Chancillerías to be litigated anew — 'como estos dias aconteció, y se pronunció en el Supremo de Justicia en la causa, que en él pendia sobre el Condado de Baylén entre los Señores Duque de Arcos, y D. Diego de Cardenas, como heredero de la señora Doña Catalina Ponce de Leon, su muger pretensora del dicho Condado, en que Yo fui Juez entre otros, que se nombraron para determinarla' · primary
The author then splits the question in two and concedes half of it. At §30 "aunque estas razones hagan por la opinion de Matienzo, y Yo no me aparte de ella, quando los herederos quisieren comenzar nuevo pleyto sobre estos frutos en las Audiencias de las Indias, porque esso bien lo podrán hacer, pues yá no pleytean sobre Encomienda; sino sobre cosa nueva, y distinta, y separada de ella, quales se juzgan ser los dichos frutos", and because "perimida, ò acabada la primera instancia, nadie queda prohibido de pedir de nuevo, lo que le conviniere segun doctrina de Bartolo." The Audiencias were inhibited from encomienda causes but not from a suit about money that had ceased to be an encomienda cause.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§24-39 — whether a suit over the fruits of an encomienda survives the death of both litigants and stays in the Council of the Indies: the question at §24, which the author says Matienzo raised on the ley de Malinas, namely what happens where a suit over an encomienda has been remitted to the Royal Council in conformity with the cédulas and both the holder and the party litigating with him over the property die without leaving an heir who by the law of succession could succeed in the encomienda — whether the suit is still to be prosecuted in the Council for the fruits that the heirs of the litigants' free goods claim belong to them, or remitted and returned to the Audiencia of the Indies of the district where the encomienda lay so that the heirs may form or instaure a new trial there; Matienzo's answer at §25 that the latter is truer, because with the death of both litigants the principal of the encomienda, out of regard for which the cause had been carried to the Council, was at an end, so that the accessory could not stop there, and because a disposition that is not perfect and consummated is vitiated if it comes to lack what it could not have had at its beginning; the author's own addition at §26 that the death of the litigants ended the instance of that trial, the more so as the Council proceeded there by particular delegation which, being restricted, does not extend beyond the persons, things and causes expressed in the rescript; the reply and answer at §§27-29 on whether the instance passes to heirs who are capable of the fruits though not of the encomienda, limited by the rule that it passes only to him who succeeds in the same right of the deceased, with Vincenzo de Franchis and Rosenthal on feudal causes; the concession at §30 that the author does not depart from Matienzo's opinion where the heirs wish to begin a new suit over these fruits in the Audiencias of the Indies, 'porque esso bien lo podrán hacer, pues yá no pleytean sobre Encomienda; sino sobre cosa nueva, y distinta, y separada de ella'; his contrary opinion at §§31-32 that where the parties wish to follow the instance in the Council the jurisdiction, instance and trial begun there endure at least as to the fruits, that heirs and the deceased litigants' attorneys may continue it, and that in strict law no fresh citation of those heirs is necessary though others hold it safer that they be cited; the texts pondered in favour at §§33-35, that a suit already contested may be prosecuted before the same judge for the offspring, fruits or interests although the slave or thing sued for has perished, with the examples of the dead ox; the law of the Code by which, a married man's cause over whether he was slave or free being begun and he dying pending, the instance still lasts and his wife may ask that it be ended and sentenced for the interest of the inheritance and the honour of the deceased; and Otálora's and Juan García's doctrine that the heirs of one who litigated hidalguía, even strangers, may ask that the suit be pursued after his death before the particular judges deputed for those causes, at least so that the pledges taken from the deceased by reason of the pechos and tributes from which he claimed to be free be returned and he be struck from the padrón; the argument at §36 that if, as Matienzo would have it, these causes went to the Audiencias of the Indies to determine to whom the fruits belong, those Audiencias would first have to know to which of the dead litigants the encomienda would have belonged had they not died, a cognizance from which they are inhibited; the additions at §§37-38 that where one cause is prejudicial to another the instance always passes to the heirs, and that even without such force the opinion should be received in rigour of law for the equity it contains and for the briefer and easier dispatch of suits; and the close at §39 that all of this is worth keeping in memory for practice 'no solo en pleytos de Encomiendas, que ya son raros, sino de Tenutas, y segundas suplicaciones, que penden en los Consejos', so that causes be not remitted to the Chancillerías to be litigated anew — 'como estos dias aconteció, y se pronunció en el Supremo de Justicia en la causa, que en él pendia sobre el Condado de Baylén entre los Señores Duque de Arcos, y D. Diego de Cardenas, como heredero de la señora Doña Catalina Ponce de Leon, su muger pretensora del dicho Condado, en que Yo fui Juez entre otros, que se nombraron para determinarla' · primary
The other half he holds the other way, and the ground is that a court should finish what it began. At §31 "Todavia soy de contrario parecer en caso, que las partes quieran seguir en el Consejo la instancia sobre los dichos frutos … no parece, que podemos negar, que por lo menos en quanto à ellos dure la jurisdicion, instancia, y juicio, que se comenzó en el Consejo, ni que pueda por el consiguiente dexar de estenderse à ellos su comission hasta determinarlos, como lo persuaden las reglas comunes del Derecho, que enseñan, que donde se ha comenzado el juicio se ha de acabar, y que es uno mismo el de la parte, que el del todo, y el de lo accessorio, que el de lo principal." At §32 he adds that the instance stays alive in the heirs and in the dead litigants' attorneys, that they may continue it, and that in strict law "no es necessaria nueva citacion de los tales herederos, para proseguir este juicio, ò instancia, y passar à su determinacion, aunque otros tienen por mas seguro, que sean cirados" — the last word is printed thus and is to be read "citados", others holding it safer that the heirs be summoned.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§24-39 — whether a suit over the fruits of an encomienda survives the death of both litigants and stays in the Council of the Indies: the question at §24, which the author says Matienzo raised on the ley de Malinas, namely what happens where a suit over an encomienda has been remitted to the Royal Council in conformity with the cédulas and both the holder and the party litigating with him over the property die without leaving an heir who by the law of succession could succeed in the encomienda — whether the suit is still to be prosecuted in the Council for the fruits that the heirs of the litigants' free goods claim belong to them, or remitted and returned to the Audiencia of the Indies of the district where the encomienda lay so that the heirs may form or instaure a new trial there; Matienzo's answer at §25 that the latter is truer, because with the death of both litigants the principal of the encomienda, out of regard for which the cause had been carried to the Council, was at an end, so that the accessory could not stop there, and because a disposition that is not perfect and consummated is vitiated if it comes to lack what it could not have had at its beginning; the author's own addition at §26 that the death of the litigants ended the instance of that trial, the more so as the Council proceeded there by particular delegation which, being restricted, does not extend beyond the persons, things and causes expressed in the rescript; the reply and answer at §§27-29 on whether the instance passes to heirs who are capable of the fruits though not of the encomienda, limited by the rule that it passes only to him who succeeds in the same right of the deceased, with Vincenzo de Franchis and Rosenthal on feudal causes; the concession at §30 that the author does not depart from Matienzo's opinion where the heirs wish to begin a new suit over these fruits in the Audiencias of the Indies, 'porque esso bien lo podrán hacer, pues yá no pleytean sobre Encomienda; sino sobre cosa nueva, y distinta, y separada de ella'; his contrary opinion at §§31-32 that where the parties wish to follow the instance in the Council the jurisdiction, instance and trial begun there endure at least as to the fruits, that heirs and the deceased litigants' attorneys may continue it, and that in strict law no fresh citation of those heirs is necessary though others hold it safer that they be cited; the texts pondered in favour at §§33-35, that a suit already contested may be prosecuted before the same judge for the offspring, fruits or interests although the slave or thing sued for has perished, with the examples of the dead ox; the law of the Code by which, a married man's cause over whether he was slave or free being begun and he dying pending, the instance still lasts and his wife may ask that it be ended and sentenced for the interest of the inheritance and the honour of the deceased; and Otálora's and Juan García's doctrine that the heirs of one who litigated hidalguía, even strangers, may ask that the suit be pursued after his death before the particular judges deputed for those causes, at least so that the pledges taken from the deceased by reason of the pechos and tributes from which he claimed to be free be returned and he be struck from the padrón; the argument at §36 that if, as Matienzo would have it, these causes went to the Audiencias of the Indies to determine to whom the fruits belong, those Audiencias would first have to know to which of the dead litigants the encomienda would have belonged had they not died, a cognizance from which they are inhibited; the additions at §§37-38 that where one cause is prejudicial to another the instance always passes to the heirs, and that even without such force the opinion should be received in rigour of law for the equity it contains and for the briefer and easier dispatch of suits; and the close at §39 that all of this is worth keeping in memory for practice 'no solo en pleytos de Encomiendas, que ya son raros, sino de Tenutas, y segundas suplicaciones, que penden en los Consejos', so that causes be not remitted to the Chancillerías to be litigated anew — 'como estos dias aconteció, y se pronunció en el Supremo de Justicia en la causa, que en él pendia sobre el Condado de Baylén entre los Señores Duque de Arcos, y D. Diego de Cardenas, como heredero de la señora Doña Catalina Ponce de Leon, su muger pretensora del dicho Condado, en que Yo fui Juez entre otros, que se nombraron para determinarla' · primary
The texts he ponders in favour come from the law of slavery and of personal status, and he quotes them as analogies without comment. At §33 authorities "expressamente deciden, y enseñan, que aunque pendiente el pleyto ya contestado, perezca la esclava, ò la cosa sobre que se intentó, todavia se puede proseguir ante el mismo Juez por razon de los partos, frutos, ò interesses", and others say "que es mio, todo lo que resta de la cosa, que lo era, y que assi aunque ella falte, puede formar juicio sobre sus despojos, poniendo exemplos en los del buey muerto." That a suit over an enslaved woman survives her death for the sake of her children and the profits, set beside the remains of a dead ox as the parallel case, is the learning of the Roman law the treatise is arguing from; it is reproduced here because it is what the page says, and the author neither softens nor remarks on it.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§24-39 — whether a suit over the fruits of an encomienda survives the death of both litigants and stays in the Council of the Indies: the question at §24, which the author says Matienzo raised on the ley de Malinas, namely what happens where a suit over an encomienda has been remitted to the Royal Council in conformity with the cédulas and both the holder and the party litigating with him over the property die without leaving an heir who by the law of succession could succeed in the encomienda — whether the suit is still to be prosecuted in the Council for the fruits that the heirs of the litigants' free goods claim belong to them, or remitted and returned to the Audiencia of the Indies of the district where the encomienda lay so that the heirs may form or instaure a new trial there; Matienzo's answer at §25 that the latter is truer, because with the death of both litigants the principal of the encomienda, out of regard for which the cause had been carried to the Council, was at an end, so that the accessory could not stop there, and because a disposition that is not perfect and consummated is vitiated if it comes to lack what it could not have had at its beginning; the author's own addition at §26 that the death of the litigants ended the instance of that trial, the more so as the Council proceeded there by particular delegation which, being restricted, does not extend beyond the persons, things and causes expressed in the rescript; the reply and answer at §§27-29 on whether the instance passes to heirs who are capable of the fruits though not of the encomienda, limited by the rule that it passes only to him who succeeds in the same right of the deceased, with Vincenzo de Franchis and Rosenthal on feudal causes; the concession at §30 that the author does not depart from Matienzo's opinion where the heirs wish to begin a new suit over these fruits in the Audiencias of the Indies, 'porque esso bien lo podrán hacer, pues yá no pleytean sobre Encomienda; sino sobre cosa nueva, y distinta, y separada de ella'; his contrary opinion at §§31-32 that where the parties wish to follow the instance in the Council the jurisdiction, instance and trial begun there endure at least as to the fruits, that heirs and the deceased litigants' attorneys may continue it, and that in strict law no fresh citation of those heirs is necessary though others hold it safer that they be cited; the texts pondered in favour at §§33-35, that a suit already contested may be prosecuted before the same judge for the offspring, fruits or interests although the slave or thing sued for has perished, with the examples of the dead ox; the law of the Code by which, a married man's cause over whether he was slave or free being begun and he dying pending, the instance still lasts and his wife may ask that it be ended and sentenced for the interest of the inheritance and the honour of the deceased; and Otálora's and Juan García's doctrine that the heirs of one who litigated hidalguía, even strangers, may ask that the suit be pursued after his death before the particular judges deputed for those causes, at least so that the pledges taken from the deceased by reason of the pechos and tributes from which he claimed to be free be returned and he be struck from the padrón; the argument at §36 that if, as Matienzo would have it, these causes went to the Audiencias of the Indies to determine to whom the fruits belong, those Audiencias would first have to know to which of the dead litigants the encomienda would have belonged had they not died, a cognizance from which they are inhibited; the additions at §§37-38 that where one cause is prejudicial to another the instance always passes to the heirs, and that even without such force the opinion should be received in rigour of law for the equity it contains and for the briefer and easier dispatch of suits; and the close at §39 that all of this is worth keeping in memory for practice 'no solo en pleytos de Encomiendas, que ya son raros, sino de Tenutas, y segundas suplicaciones, que penden en los Consejos', so that causes be not remitted to the Chancillerías to be litigated anew — 'como estos dias aconteció, y se pronunció en el Supremo de Justicia en la causa, que en él pendia sobre el Condado de Baylén entre los Señores Duque de Arcos, y D. Diego de Cardenas, como heredero de la señora Doña Catalina Ponce de Leon, su muger pretensora del dicho Condado, en que Yo fui Juez entre otros, que se nombraron para determinarla' · primary
The next analogy runs the other way and is about a man's freedom and his tax status. At §34 a law of the Code provides "que si aviendose comenzado la causa de un hombre casado, sobre si era esclavo, ò libre, este muriere, estando pendiente, todavia dura la instancia, y su muger podrá pedir, que se fenezca, y sentencie por el interés de la herencia, y por el honor del difunto", and on that text Otálora and Juan García say "que los herederos del que pleyteaba hidalguia, aunque no sean hijos; sino estraños, pueden pedir se prosiga el pleyto despues de su muerte delante de los Jueces particulares, que están diputados para conocer de estas causas, por lo menos para que se les vuelvan, y restituyan las prendas, que se tomaron al difunto por razon de los pechos, y tributos, de que él pretendia ser libre, y tildado del padron, en que le pusieron." Both analogies are Castilian and Roman doctrine imported into an American question; neither is a case from the Indies.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§24-39 — whether a suit over the fruits of an encomienda survives the death of both litigants and stays in the Council of the Indies: the question at §24, which the author says Matienzo raised on the ley de Malinas, namely what happens where a suit over an encomienda has been remitted to the Royal Council in conformity with the cédulas and both the holder and the party litigating with him over the property die without leaving an heir who by the law of succession could succeed in the encomienda — whether the suit is still to be prosecuted in the Council for the fruits that the heirs of the litigants' free goods claim belong to them, or remitted and returned to the Audiencia of the Indies of the district where the encomienda lay so that the heirs may form or instaure a new trial there; Matienzo's answer at §25 that the latter is truer, because with the death of both litigants the principal of the encomienda, out of regard for which the cause had been carried to the Council, was at an end, so that the accessory could not stop there, and because a disposition that is not perfect and consummated is vitiated if it comes to lack what it could not have had at its beginning; the author's own addition at §26 that the death of the litigants ended the instance of that trial, the more so as the Council proceeded there by particular delegation which, being restricted, does not extend beyond the persons, things and causes expressed in the rescript; the reply and answer at §§27-29 on whether the instance passes to heirs who are capable of the fruits though not of the encomienda, limited by the rule that it passes only to him who succeeds in the same right of the deceased, with Vincenzo de Franchis and Rosenthal on feudal causes; the concession at §30 that the author does not depart from Matienzo's opinion where the heirs wish to begin a new suit over these fruits in the Audiencias of the Indies, 'porque esso bien lo podrán hacer, pues yá no pleytean sobre Encomienda; sino sobre cosa nueva, y distinta, y separada de ella'; his contrary opinion at §§31-32 that where the parties wish to follow the instance in the Council the jurisdiction, instance and trial begun there endure at least as to the fruits, that heirs and the deceased litigants' attorneys may continue it, and that in strict law no fresh citation of those heirs is necessary though others hold it safer that they be cited; the texts pondered in favour at §§33-35, that a suit already contested may be prosecuted before the same judge for the offspring, fruits or interests although the slave or thing sued for has perished, with the examples of the dead ox; the law of the Code by which, a married man's cause over whether he was slave or free being begun and he dying pending, the instance still lasts and his wife may ask that it be ended and sentenced for the interest of the inheritance and the honour of the deceased; and Otálora's and Juan García's doctrine that the heirs of one who litigated hidalguía, even strangers, may ask that the suit be pursued after his death before the particular judges deputed for those causes, at least so that the pledges taken from the deceased by reason of the pechos and tributes from which he claimed to be free be returned and he be struck from the padrón; the argument at §36 that if, as Matienzo would have it, these causes went to the Audiencias of the Indies to determine to whom the fruits belong, those Audiencias would first have to know to which of the dead litigants the encomienda would have belonged had they not died, a cognizance from which they are inhibited; the additions at §§37-38 that where one cause is prejudicial to another the instance always passes to the heirs, and that even without such force the opinion should be received in rigour of law for the equity it contains and for the briefer and easier dispatch of suits; and the close at §39 that all of this is worth keeping in memory for practice 'no solo en pleytos de Encomiendas, que ya son raros, sino de Tenutas, y segundas suplicaciones, que penden en los Consejos', so that causes be not remitted to the Chancillerías to be litigated anew — 'como estos dias aconteció, y se pronunció en el Supremo de Justicia en la causa, que en él pendia sobre el Condado de Baylén entre los Señores Duque de Arcos, y D. Diego de Cardenas, como heredero de la señora Doña Catalina Ponce de Leon, su muger pretensora del dicho Condado, en que Yo fui Juez entre otros, que se nombraron para determinarla' · primary
The sharpest argument against sending the case back turns the Audiencias' own inhibition against Matienzo. At §36 "si como él dice en el n. 8. en las Audiencias de las Indias, à las quales quiere, que se lleven estas causas, para conocer, à quien pertenecen los frutos, se ha de conocer, y entender primero, à qual de los Litigantes difuntos pudiera, ò debiera pertenecer la Encomienda, si no huvieran muerto, del qual conocimiento, (como lo avemos dicho) están inhibidas las dichas Audiencias: quanto mejor, y mas seguramente se podrà despachar esto en el Consejo de Indias, que es adonde están remitidas, y cometidas privativamente estas causas, y adonde ya las partes tenian deducido todo, lo que pudo importar al derecho principal de la Encomienda, que litigaban." Deciding whose the fruits are requires deciding whose the encomienda would have been, which is the very cognizance the Audiencias had been stripped of.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§24-39 — whether a suit over the fruits of an encomienda survives the death of both litigants and stays in the Council of the Indies: the question at §24, which the author says Matienzo raised on the ley de Malinas, namely what happens where a suit over an encomienda has been remitted to the Royal Council in conformity with the cédulas and both the holder and the party litigating with him over the property die without leaving an heir who by the law of succession could succeed in the encomienda — whether the suit is still to be prosecuted in the Council for the fruits that the heirs of the litigants' free goods claim belong to them, or remitted and returned to the Audiencia of the Indies of the district where the encomienda lay so that the heirs may form or instaure a new trial there; Matienzo's answer at §25 that the latter is truer, because with the death of both litigants the principal of the encomienda, out of regard for which the cause had been carried to the Council, was at an end, so that the accessory could not stop there, and because a disposition that is not perfect and consummated is vitiated if it comes to lack what it could not have had at its beginning; the author's own addition at §26 that the death of the litigants ended the instance of that trial, the more so as the Council proceeded there by particular delegation which, being restricted, does not extend beyond the persons, things and causes expressed in the rescript; the reply and answer at §§27-29 on whether the instance passes to heirs who are capable of the fruits though not of the encomienda, limited by the rule that it passes only to him who succeeds in the same right of the deceased, with Vincenzo de Franchis and Rosenthal on feudal causes; the concession at §30 that the author does not depart from Matienzo's opinion where the heirs wish to begin a new suit over these fruits in the Audiencias of the Indies, 'porque esso bien lo podrán hacer, pues yá no pleytean sobre Encomienda; sino sobre cosa nueva, y distinta, y separada de ella'; his contrary opinion at §§31-32 that where the parties wish to follow the instance in the Council the jurisdiction, instance and trial begun there endure at least as to the fruits, that heirs and the deceased litigants' attorneys may continue it, and that in strict law no fresh citation of those heirs is necessary though others hold it safer that they be cited; the texts pondered in favour at §§33-35, that a suit already contested may be prosecuted before the same judge for the offspring, fruits or interests although the slave or thing sued for has perished, with the examples of the dead ox; the law of the Code by which, a married man's cause over whether he was slave or free being begun and he dying pending, the instance still lasts and his wife may ask that it be ended and sentenced for the interest of the inheritance and the honour of the deceased; and Otálora's and Juan García's doctrine that the heirs of one who litigated hidalguía, even strangers, may ask that the suit be pursued after his death before the particular judges deputed for those causes, at least so that the pledges taken from the deceased by reason of the pechos and tributes from which he claimed to be free be returned and he be struck from the padrón; the argument at §36 that if, as Matienzo would have it, these causes went to the Audiencias of the Indies to determine to whom the fruits belong, those Audiencias would first have to know to which of the dead litigants the encomienda would have belonged had they not died, a cognizance from which they are inhibited; the additions at §§37-38 that where one cause is prejudicial to another the instance always passes to the heirs, and that even without such force the opinion should be received in rigour of law for the equity it contains and for the briefer and easier dispatch of suits; and the close at §39 that all of this is worth keeping in memory for practice 'no solo en pleytos de Encomiendas, que ya son raros, sino de Tenutas, y segundas suplicaciones, que penden en los Consejos', so that causes be not remitted to the Chancillerías to be litigated anew — 'como estos dias aconteció, y se pronunció en el Supremo de Justicia en la causa, que en él pendia sobre el Condado de Baylén entre los Señores Duque de Arcos, y D. Diego de Cardenas, como heredero de la señora Doña Catalina Ponce de Leon, su muger pretensora del dicho Condado, en que Yo fui Juez entre otros, que se nombraron para determinarla' · primary
The closing grounds are equity and speed, stated as such. At §38 "quando aun no tuviera en sí tanta fuerza, lo que se ha referido, para fundar esta parte, en rigor de Derecho se debiera recibir en practica por la equidad, que en sí contiene, y la mas breve, y facil expedicion de los pleytos, que siempre se ha procurado, y debe procurar sumamente segun sus reglas", after §37 has added that where one cause is prejudicial to another the instance always passes to the heirs, and that a papal delegate takes on the office of the ordinary and executes his own sentence where justice cannot otherwise be well administered, "se puede entender verosimilmente, que el Principe informado de èl se la concederia."
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§24-39 — whether a suit over the fruits of an encomienda survives the death of both litigants and stays in the Council of the Indies: the question at §24, which the author says Matienzo raised on the ley de Malinas, namely what happens where a suit over an encomienda has been remitted to the Royal Council in conformity with the cédulas and both the holder and the party litigating with him over the property die without leaving an heir who by the law of succession could succeed in the encomienda — whether the suit is still to be prosecuted in the Council for the fruits that the heirs of the litigants' free goods claim belong to them, or remitted and returned to the Audiencia of the Indies of the district where the encomienda lay so that the heirs may form or instaure a new trial there; Matienzo's answer at §25 that the latter is truer, because with the death of both litigants the principal of the encomienda, out of regard for which the cause had been carried to the Council, was at an end, so that the accessory could not stop there, and because a disposition that is not perfect and consummated is vitiated if it comes to lack what it could not have had at its beginning; the author's own addition at §26 that the death of the litigants ended the instance of that trial, the more so as the Council proceeded there by particular delegation which, being restricted, does not extend beyond the persons, things and causes expressed in the rescript; the reply and answer at §§27-29 on whether the instance passes to heirs who are capable of the fruits though not of the encomienda, limited by the rule that it passes only to him who succeeds in the same right of the deceased, with Vincenzo de Franchis and Rosenthal on feudal causes; the concession at §30 that the author does not depart from Matienzo's opinion where the heirs wish to begin a new suit over these fruits in the Audiencias of the Indies, 'porque esso bien lo podrán hacer, pues yá no pleytean sobre Encomienda; sino sobre cosa nueva, y distinta, y separada de ella'; his contrary opinion at §§31-32 that where the parties wish to follow the instance in the Council the jurisdiction, instance and trial begun there endure at least as to the fruits, that heirs and the deceased litigants' attorneys may continue it, and that in strict law no fresh citation of those heirs is necessary though others hold it safer that they be cited; the texts pondered in favour at §§33-35, that a suit already contested may be prosecuted before the same judge for the offspring, fruits or interests although the slave or thing sued for has perished, with the examples of the dead ox; the law of the Code by which, a married man's cause over whether he was slave or free being begun and he dying pending, the instance still lasts and his wife may ask that it be ended and sentenced for the interest of the inheritance and the honour of the deceased; and Otálora's and Juan García's doctrine that the heirs of one who litigated hidalguía, even strangers, may ask that the suit be pursued after his death before the particular judges deputed for those causes, at least so that the pledges taken from the deceased by reason of the pechos and tributes from which he claimed to be free be returned and he be struck from the padrón; the argument at §36 that if, as Matienzo would have it, these causes went to the Audiencias of the Indies to determine to whom the fruits belong, those Audiencias would first have to know to which of the dead litigants the encomienda would have belonged had they not died, a cognizance from which they are inhibited; the additions at §§37-38 that where one cause is prejudicial to another the instance always passes to the heirs, and that even without such force the opinion should be received in rigour of law for the equity it contains and for the briefer and easier dispatch of suits; and the close at §39 that all of this is worth keeping in memory for practice 'no solo en pleytos de Encomiendas, que ya son raros, sino de Tenutas, y segundas suplicaciones, que penden en los Consejos', so that causes be not remitted to the Chancillerías to be litigated anew — 'como estos dias aconteció, y se pronunció en el Supremo de Justicia en la causa, que en él pendia sobre el Condado de Baylén entre los Señores Duque de Arcos, y D. Diego de Cardenas, como heredero de la señora Doña Catalina Ponce de Leon, su muger pretensora del dicho Condado, en que Yo fui Juez entre otros, que se nombraron para determinarla' · primary
The chapter ends with two disclosures in one sentence: that encomienda suits were by then rare, and that the author had sat as a judge in the analogous Castilian cause he cites. At §39 "todo esto es digno de tenerse en memoria para la practica, no solo en pleytos de Encomiendas, que ya son raros, sino de Tenutas, y segundas suplicaciones, que penden en los Consejos", so that where the litigants die the councils may continue and sentence "por razon de los frutos: aunque los herederos, que quedaren, no sean proprios sino estraños, sin remitirlos, à que vayan a pleytear de nuevo à las Chancillerias, como estos dias aconteció, y se pronunció en el Supremo de Justicia en la causa, que en él pendia sobre el Condado de Baylén entre los Señores Duque de Arcos, y D. Diego de Cardenas, como heredero de la señora Doña Catalina Ponce de Leon, su muger pretensora del dicho Condado, en que Yo fui Juez entre otros, que se nombraron para determinarla." The Bailén cause is a Castilian suit over a county and not an encomienda cause; the page gives no date and no outcome beyond the fact that the court pronounced on it, and the author's statement that he was one of the judges named to decide it is his own.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§24-39 — whether a suit over the fruits of an encomienda survives the death of both litigants and stays in the Council of the Indies: the question at §24, which the author says Matienzo raised on the ley de Malinas, namely what happens where a suit over an encomienda has been remitted to the Royal Council in conformity with the cédulas and both the holder and the party litigating with him over the property die without leaving an heir who by the law of succession could succeed in the encomienda — whether the suit is still to be prosecuted in the Council for the fruits that the heirs of the litigants' free goods claim belong to them, or remitted and returned to the Audiencia of the Indies of the district where the encomienda lay so that the heirs may form or instaure a new trial there; Matienzo's answer at §25 that the latter is truer, because with the death of both litigants the principal of the encomienda, out of regard for which the cause had been carried to the Council, was at an end, so that the accessory could not stop there, and because a disposition that is not perfect and consummated is vitiated if it comes to lack what it could not have had at its beginning; the author's own addition at §26 that the death of the litigants ended the instance of that trial, the more so as the Council proceeded there by particular delegation which, being restricted, does not extend beyond the persons, things and causes expressed in the rescript; the reply and answer at §§27-29 on whether the instance passes to heirs who are capable of the fruits though not of the encomienda, limited by the rule that it passes only to him who succeeds in the same right of the deceased, with Vincenzo de Franchis and Rosenthal on feudal causes; the concession at §30 that the author does not depart from Matienzo's opinion where the heirs wish to begin a new suit over these fruits in the Audiencias of the Indies, 'porque esso bien lo podrán hacer, pues yá no pleytean sobre Encomienda; sino sobre cosa nueva, y distinta, y separada de ella'; his contrary opinion at §§31-32 that where the parties wish to follow the instance in the Council the jurisdiction, instance and trial begun there endure at least as to the fruits, that heirs and the deceased litigants' attorneys may continue it, and that in strict law no fresh citation of those heirs is necessary though others hold it safer that they be cited; the texts pondered in favour at §§33-35, that a suit already contested may be prosecuted before the same judge for the offspring, fruits or interests although the slave or thing sued for has perished, with the examples of the dead ox; the law of the Code by which, a married man's cause over whether he was slave or free being begun and he dying pending, the instance still lasts and his wife may ask that it be ended and sentenced for the interest of the inheritance and the honour of the deceased; and Otálora's and Juan García's doctrine that the heirs of one who litigated hidalguía, even strangers, may ask that the suit be pursued after his death before the particular judges deputed for those causes, at least so that the pledges taken from the deceased by reason of the pechos and tributes from which he claimed to be free be returned and he be struck from the padrón; the argument at §36 that if, as Matienzo would have it, these causes went to the Audiencias of the Indies to determine to whom the fruits belong, those Audiencias would first have to know to which of the dead litigants the encomienda would have belonged had they not died, a cognizance from which they are inhibited; the additions at §§37-38 that where one cause is prejudicial to another the instance always passes to the heirs, and that even without such force the opinion should be received in rigour of law for the equity it contains and for the briefer and easier dispatch of suits; and the close at §39 that all of this is worth keeping in memory for practice 'no solo en pleytos de Encomiendas, que ya son raros, sino de Tenutas, y segundas suplicaciones, que penden en los Consejos', so that causes be not remitted to the Chancillerías to be litigated anew — 'como estos dias aconteció, y se pronunció en el Supremo de Justicia en la causa, que en él pendia sobre el Condado de Baylén entre los Señores Duque de Arcos, y D. Diego de Cardenas, como heredero de la señora Doña Catalina Ponce de Leon, su muger pretensora del dicho Condado, en que Yo fui Juez entre otros, que se nombraron para determinarla' · primary
What this entry establishes and what it does not. It establishes that the standard treatise on the government of the Spanish Indies treated the death of both litigants in a transatlantic encomienda suit as an open question of jurisdiction; that Matienzo held the cause should return to the Audiencia of the district and its author agreed as to a fresh suit begun there, because the heirs would then be litigating over something separate from the encomienda; that he held the contrary where the parties wished to finish the instance already begun in the Council, on the rules that a trial ends where it began and that the accessory follows the principal, with heirs and the dead parties' attorneys able to continue it and, in strict law, without fresh citation; that he supported this with Roman and Castilian analogies — a suit surviving the death of an enslaved woman for the sake of her children and the profits, a freedom suit continued by the widow for the honour of the deceased, a hidalguía suit continued by strangers to recover pledges taken for taxes — and with the argument that the Audiencias could not decide whose the fruits were without deciding whose the encomienda would have been, a cognizance from which they were inhibited; and that he closed on equity and the swift dispatch of suits, noting that encomienda causes "ya son raros" and disclosing that he had himself been one of the judges in the Bailén cause he cites. It establishes nothing about practice in the Indies: not one American case, court, date or decision appears in these sixteen paragraphs, the only named suit is a Castilian one about a county, no cédula or law was opened in its own printing, and the author is writing about councils he served on. And the thing at stake throughout is the tribute of Indian towns, being divided between the heirs of two dead Spanish claimants in a proceeding where those towns are not parties and have nothing to gain from either result.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§24-39 — whether a suit over the fruits of an encomienda survives the death of both litigants and stays in the Council of the Indies: the question at §24, which the author says Matienzo raised on the ley de Malinas, namely what happens where a suit over an encomienda has been remitted to the Royal Council in conformity with the cédulas and both the holder and the party litigating with him over the property die without leaving an heir who by the law of succession could succeed in the encomienda — whether the suit is still to be prosecuted in the Council for the fruits that the heirs of the litigants' free goods claim belong to them, or remitted and returned to the Audiencia of the Indies of the district where the encomienda lay so that the heirs may form or instaure a new trial there; Matienzo's answer at §25 that the latter is truer, because with the death of both litigants the principal of the encomienda, out of regard for which the cause had been carried to the Council, was at an end, so that the accessory could not stop there, and because a disposition that is not perfect and consummated is vitiated if it comes to lack what it could not have had at its beginning; the author's own addition at §26 that the death of the litigants ended the instance of that trial, the more so as the Council proceeded there by particular delegation which, being restricted, does not extend beyond the persons, things and causes expressed in the rescript; the reply and answer at §§27-29 on whether the instance passes to heirs who are capable of the fruits though not of the encomienda, limited by the rule that it passes only to him who succeeds in the same right of the deceased, with Vincenzo de Franchis and Rosenthal on feudal causes; the concession at §30 that the author does not depart from Matienzo's opinion where the heirs wish to begin a new suit over these fruits in the Audiencias of the Indies, 'porque esso bien lo podrán hacer, pues yá no pleytean sobre Encomienda; sino sobre cosa nueva, y distinta, y separada de ella'; his contrary opinion at §§31-32 that where the parties wish to follow the instance in the Council the jurisdiction, instance and trial begun there endure at least as to the fruits, that heirs and the deceased litigants' attorneys may continue it, and that in strict law no fresh citation of those heirs is necessary though others hold it safer that they be cited; the texts pondered in favour at §§33-35, that a suit already contested may be prosecuted before the same judge for the offspring, fruits or interests although the slave or thing sued for has perished, with the examples of the dead ox; the law of the Code by which, a married man's cause over whether he was slave or free being begun and he dying pending, the instance still lasts and his wife may ask that it be ended and sentenced for the interest of the inheritance and the honour of the deceased; and Otálora's and Juan García's doctrine that the heirs of one who litigated hidalguía, even strangers, may ask that the suit be pursued after his death before the particular judges deputed for those causes, at least so that the pledges taken from the deceased by reason of the pechos and tributes from which he claimed to be free be returned and he be struck from the padrón; the argument at §36 that if, as Matienzo would have it, these causes went to the Audiencias of the Indies to determine to whom the fruits belong, those Audiencias would first have to know to which of the dead litigants the encomienda would have belonged had they not died, a cognizance from which they are inhibited; the additions at §§37-38 that where one cause is prejudicial to another the instance always passes to the heirs, and that even without such force the opinion should be received in rigour of law for the equity it contains and for the briefer and easier dispatch of suits; and the close at §39 that all of this is worth keeping in memory for practice 'no solo en pleytos de Encomiendas, que ya son raros, sino de Tenutas, y segundas suplicaciones, que penden en los Consejos', so that causes be not remitted to the Chancillerías to be litigated anew — 'como estos dias aconteció, y se pronunció en el Supremo de Justicia en la causa, que en él pendia sobre el Condado de Baylén entre los Señores Duque de Arcos, y D. Diego de Cardenas, como heredero de la señora Doña Catalina Ponce de Leon, su muger pretensora del dicho Condado, en que Yo fui Juez entre otros, que se nombraron para determinarla' · primary