Juridical Dissertation on Contumacy

C. de Procurat. and there Brunnemann. arg. l. 13. §. fin. C. de Judic. which then especially obtains if he himself knew of this and did not provide for himself. Barbosa part. 1. quæst. 38. n. 61. Vid. Zas. ad l. un. ff. si quis Jus dic. non obtemp. num. 3. However, the faculty remains for him in court to proceed again against the Procurator, by Action of mandate, to obtain compensation for the damage suffered from the same. per d. l. 10. C. de Procurator. l. 13. C. mandat. Caz. Jpr. for. p. 1. c. 1. def. 225. If, however, the Procurator does not have the means to pay, he will then finally be helped by the benefit of restitution in integrum against the third party, if collusion has intervened, and the third party was a participant in the fraud. l. 8. ff. de dolo malo. vid. l. 13. §. fin. C. de Jud. The most famous Predecessor of this University, Dn. D. Schweder, my most esteemed Patron and Teacher, ad l. 32. ff. de Reb. Cred. p. 56. in Vol. Disp. Lauterbachian. 2. Since also the Procurator by Canon Law and modern customs is compelled in many places to swear to Calumny for his own soul as well as for that of his principal: c. ult. de jur. cal. in 6. Rec. Imp. Noviss. d. l. O. C. part. 1. tit. 56. J. P. W. p. 1. tit. 26. §. Und ob ein Procurator. provided he has a special mandate for this, d. cap. ult. X. de Juram. cal. in 6. Receß. Imper. de Anno 1654. §. 37. From this it is usually asked: does this Contumacy also harm the master if the Procurator, ordered to provide this Oath in the soul of the principal—for which he had a special mandate—refuses the same? The Doctors commonly affirm it. per d. l. 10. C. de Procurat. Gail, however, thinks that out of equity an audience should be denied to him. in lib. 1. Obs. 86. Add. Græv. lib. 1. concl. 89. Bocer. in cl. 6. Disp. 18. q. 15. lit. b. Harpprecht. in process. jud. dec. 8. concl. 2. n. 3. A pupil, however, who does not have a tutor, cannot be made Contumacious: through l. 54. ff. de Re Jud. Anton. Faber in Cod. lib. 2. tit. 2. def. 3. Nor is a minor, bereft of a Curator, condemned as Contumacious, vid. §. 2. Instit. de Curat. who can also be given to lawsuits against his will (which, however, is otherwise in Canon Law and modern customs in criminal cases, per c. fin. de Judic. in 6. to Brunnem. ad l. 4 C. de Auth. præst. Vultej. l. 1. de Jud. c. 6. num. 22. Carpz. Pr. Crimin. p. 3. quæst. 118. num. 33.): Anton. Faber in Cod. l. 3. tit. 1. def. 29. & 33. And for him, if he has been condemned as quasi-Contumacious, a remedy of restitution in integrum is advised. per l. 8. ff. de min. 25. annis. l. 13. §. fin. C. de Judic. ibique Brunnem. To this also contributes l. 15. §. 22. ff. de damn. infect. Vinn. in Jpr. contr. lib. 3. c. 43. p. 630. A minor, however, thus restored, is taught by Fachin. to be obliged to restore expenses to his adversary, l. 10. Controv. 2. num. 3. Brunnem. ad d. l. 8. And the Defendant can be accused of this Contumacy and its punishment, not only a subject, but also a foreigner: for by litigating he becomes subject to the forum. Mev. p. 3. Decis. 117.