Juridical Dissertation on Contumacy

afterwards it is referred to the Records by the Actuary, so that indeed it can be made certain from the Records concerning it: As is done orally in this Duchy of Würtemberg to the Polygraph, J. P. W. p. 1, tit. 11. §. Und Dieweil.

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Whether it is certainly established that the Judge is competent, or whether it is still doubted concerning him. The cited defendant, however, to the citation issued, unless he wishes to be held Contumacious, is bound to appear and allege the incompetence: l. 5. ff. de Judic. Since it is the right of no private individual, in doubt, to judge concerning the incompetence of a Judge. per l. 2. pr. ff. si quis in Jus voc. non iv. and there Bronnemann. Vultej. de Judic. l. 2. cap. 6. num. 72. For where jurisdiction is doubtful, obedience is not doubtful. Carpzov. P. 1. C. 3. def. 11. Vultej. l. 2. de Jud. c. 2. num. 25. l. 5. And indeed in the very first term. R. I. de Anno 1654. §. Es soll auch. Cz. de proc. t. 9. art. 2. n. 2. & lib. 2. Resp. 9. Christ. Fridericus in process. Jud. de for. compet. and there Caspar. Nicolai, in addit. lit. C. Menoch. l. 2. praesumt. 19. num. 5. Either by himself, or by a Procurator, but not by letter. per l. 2. ff. si qs in Jus voc. non iv. therein: He ought to come, Carpz. in proc. d. l. which will obtain much more in the Saxon forum, since there, for the sake of abbreviating lawsuits, all things viva voce: From the mouth into the pen, ought regularly to be proposed. Carpz. P. 1. C. 3. def. 11. & lib. 2. Resp. 11. Nicolai in proc. p. 1. c. 19. n. 54. Fibigius: de proc. c. 2. and there Dn. Schwendendörff. in not. p. 95. 96. And protests are accustomed to be made in the appearance. That he appears indeed in honor of the Judge, but does not intend by his appearance, words, or deeds, to consent to the Jurisdiction of the Judge, unless insofar and to the extent that he is bound by Law. It is that N.N. has appeared only in honor of the praiseworthy court, and does not consent further to this judicial constraint than he is obligated to do by the rule of law. After Petr. Termin. Fibigius, d. l. Colerus in process. execut. p. 4. c. 3. And this so that by not appearing, or even if he does appear, by the expression that he is unwilling to consent simply to the Judge, it might not be presumed [as] Contumacy: and by absolute obedience, jurisdiction in the citing party, and subjection in the cited party might not be presumed Boërius dec. 8. num. 5. Pacianus de probat. l. 2. c. 48. num. 43. Fibigius: dict. loc. Modest. Pistor. Consil. 12. n. 78. Add. Gail. l. 1. Obs. 48. num. 24.