Juridical Dissertation on Contumacy

he summoned and challenged [him] to judgment, through l. 5. §. fin. ff. de dol. mal. & met. except. l. 6. pr. C. de temp. in integr. restit. Novell. 112. c. 3. Add Gail, l. 1. Obs. 59. But truly, since the Defendant sustains a lawsuit against his will, it is no wonder if he evades it; whence also he is more often called a fugitive in the Law, in l. 13. §. 2. C. de judic. and in many others. Anton. Faber in Cod. l. 3. tit. 1. def. 26. num. 12. Perez in Cod. ad tit. de Judic. num. 21. and ad tit. Quom. & quando Jud. num. 10. Carpzov in process. tit. 8. art. 1. num. 27. Ziegler ad Jus Canon. l. 3. tit. 6. ad §. 9. Matth. Stephani ad Nov. 112. c. 3. Ungepaur ad Jus Canon. d. l. num. 7. The blessed Dn. Lauterbach ad J. P. W. p. 1. tit. 12. th. 19. Hence, with the Plaintiff, if he should turn out to be Contumacious, proceedings are taken more harshly than with the Defendant; Faber in Cod. d. l. def. 19. Perez d. loc. Ludovic. Engel ad Jus Canon. h. t. de dol. & contumac. num. 11. Thus, with him departing, the citation is held as having been bypassed, namely, so that they cannot allege the pendency of the suit, although the Defendant well can: to such an extent that it is not permitted for the Plaintiff to drag the Defendant to another Judge, but in prejudice of the Plaintiff the suit is held as pending: so warns the blessed Brunnem. in d. tr. de process. civ. c. 3. in fin. Hence also in J. P. W. a lighter punishment is established for the Defendant than for the Plaintiff, in p. 1. tit. 12. §. Wann der Kläger. p. 70. and there the blessed Dn. Lauterbach. But if the Judge proceeds in Contumacy against an absent Plaintiff, he can and ought to inquire into the rights of the absent party and supply those things which are of fact, decides the blessed Brunnem. ad l. un. C. ut quæ def. advoc. Jud. suppl.

X I.

Since, however, we can initiate and take exception to a lawsuit through another, for example through a Procurator, provided a sufficient mandate or power of attorney is given to him for this purpose; through l. 1. C. de proc. Just as often this clause is also inserted into citations: To appear by oneself / or by a sufficient / empowered attorney. Therefore, also here, by not rendering the due obedience, he incurs Contumacy and its punishment, in such a way that he cannot seek the same from his principal, through l. un. §. 2. ff. si quis Jus dic. non obtemp. & l. 46. §. 5. ff. de Procur. Rec. Imp. de anno 1654. §. 92. O. Cam. p. 1. tit. 52. The blessed Dn. Lauterbach Ex. ad ff. 11. q. 11. Although with regard to the Process of the trial itself; and by reason of the adversary, the Contumacy of the Procurator harms the Master to this extent, that the Judge can proceed validly, just as if the Principal himself had been Contumacious, and the sentence holds, so that it cannot regularly be rescinded anymore. through l. 10.