Juridical Dissertation on Contumacy

ff. de Jurejur. l. 5. 6. C. de Edendo. By whose appellation in a broad signification are all those whose matter is being treated, and who have business and a trial concerning the thing: Hence in l. 5. ff. de V. O. it is handed down that conventional stipulations are those which are made by the agreement of the Defendants, and thus, by that appellation, plaintiffs also come [under it]; hence they are called Rei [parties] of stipulating and promising. t. t. Inst. ff. & Cod. de duob. Reis stipul. & promitt. Vinn. Jpr. Contracta. l. 3. c. 3. lit. P.

IX.

The Plaintiff is said to be contumacious then if, after he has already seen to it that another is cited into court, he himself remains absent, and does not pursue the lawsuit, or protracts and delays it for a long time. Stephani ad d. Nov. 112. c. 3. The Defendant, conversely, commits Contumacia if, when summoned into court, he does not come, provided that the judge himself and the opposing party with whom he is litigating were present, post Baptist. Asin. in prax. c. 1. §. 17. num. 3. Ziegler. ad Jus Can. l. 3. tit. 6. p. m. 738. Or [if] he sends a procurator who is not suitable or less instructed, c. 3. X. de dol. & contum. Wesemb. ad d. l. 13. C. de judic. num. 4. Or by indirection procures that the citation does not reach him, l. 157. ff. de R. I. c. 5. §. 1. X. Ut lit. non contest. Or [if] he comes but does not stand before the court. Or [if] he presents himself but not in the due manner, since it is equivalent in our Law to not appear, and not to appear legitimately, arg. l. fin. C. de success. edict. & c. 6. de Elect. in 6. to: add. l. 6. ff. qui satisd. cog. If he refuses to provide security, or if, ordered to answer to the articles, he refuses: p. l. 11. §. 4. ff. de Interrog. in Jur. fac. Or if he answers obscurely, or insufficiently, and not in the manner which the style of the court and process prescribes, per d. l. 11. §. 5. & seqq. Tabor. h. cit. num. 20. Matth. Stephani ad d. Nov. 112. c. 3.

X.

From which it is a consequence that sometimes even the one who is present is contumacious, if he does not do what he is ordered to do in court: per l. 7. §. 1. ff. Quib. ex caus. in poss. eatur. d. l. 11. §. 4. ff. de Int. in Jur. fac. c. 2. X. ut lit. non contest. c. ult. X. de juram. calumn. Wesemb. ad dict. l. 13. C. Jud. num. 4. Whose Contumacia is also judged graver than that of him who does not appear, Brunnemanno ad l. 2. §. 3. C. Quom. & Quand. Jud. Just as also the Contumacia of the Plaintiff is greater and fouler than that of the Defendant; for the Plaintiff is not bound to sue; per l. un. C. ut nem. Invit. ag. vel accus. ten. Unjustly, therefore, he refuses to sue, who is ready to [harass] his adversary in court