Juridical Dissertation on Contumacy

Nor does it disturb this opinion, or stand against it, that the commission or mandate of the Judge to cite someone seems to be among the connected matters of the citation itself and the report made by the messenger, concerning which the same judgment is to be rendered: And consequently, credence is to be given no less to the messenger asserting concerning the commission made to him than concerning the citation itself. For it is certain that the messenger could have made the citation, and yet the mandate of the judge might not have preceded it, so that it is not correctly asserted that the mandate of the judge is necessarily connected with the citation. Nor does it press [the matter] at all if it is argued that it should be presumed that the mandate of the judge preceded the citation, rather than that the messenger cited without the judge's mandate, and thus committed the crime of forgery: because in doubt no presumption of a crime is to be taken. For this rule loses its force when it is a matter of the prejudice of a third party, such as the cited party here, and in this case that presumption ceases by which otherwise every good man is presumed [to be honest]. Alciatus tr. de præsumpt. reg. 3. Menoch. l. 5. c. 2. n. 51. de præsumpt. It causes less trouble, l. 5. §. 13. ff. de Reb. eorum qui sub tut. where credence is given simply to a messenger reporting to a magistrate, nor is there a distinction there whether the commission of the judge is proved or not: since it is to be presumed that in the case of that Law, the commission of the Judge preceded and had been proved. Zinus, Baldus, and Salicetus dissent in l. fin. C. de exig. reis. & in l. 30. ff. de V. O. [arguing] that if the messenger was not sworn, a schedule is usually demanded, which in court is called a recepisse, which messenger, if he proves that he was unwilling to give a recepisse or the document of insinuation, then the cited party is to be cited by the advocate of the fisc and punished for the injury brought upon the Judge. Mev. p. 4. Dec. 269.

XVII.

In the Imperial Chamber, the sworn messenger of the Chamber, der geschworne Bott, subscribes the report (which he must make to the master of the messengers immediately after he has returned: O. Cam. p. 1. tit. 7. §. Und alsbald.) at the end of the original citation, and on the copies, if there be any, with the designation of the place, day, year, month, and person; indeed, of the whole execution: But a notary ought to draft a public instrument concerning the fact of the execution, and insert into it the tenor of the citation or mandate itself: O. Cam. p. 1. tit. 38. §. 5. Brunnem. de process. c. 3. num. 37. Petr. Fridericus Mindanus, de mand. jud. l. 2. c. 21. B. Dn. Lauterb. d. Dissert. de nuncio l. 57. n. 14. Elsewhere, however, it suffices for this report to be made orally, provided...