[Decisiones rotae Romanae] (1477) - Page 23

On judgments and citations. 53.

Note that where one was cited to a case, "all whose interest it is," and one comes to the case alleging his interest, before he is admitted, he must prove summarily or otherwise that it is his interest, by argument in the sons, law In, section Sciendum, Digest on exhibiting. And it is expedient that some letter proves that it is of interest, as the chapter Veniens, on witnesses. By argument, it would be in the power of anyone to impede the commission, and thus fraud would be committed against the law In fundo, Digest on the sale of property. Therefore, it is expedient that from the beginning of the cause the interest be proven, as the chapter Veniens, 2, on witnesses, by argument of the law Saepe, on adjudged things, and the Extravagant, on the same title, chapter Quis. See section Sciendum.

On the restitution of stolen goods and appeals. 54.

Note that where someone says he is despoiled and appeals after a long time from the time of spoliation and after 10 years, that the appeal is valid, and this is if the grievance does not have the force of a definitive sentence or an interlocutory one, as noted by Speculator, title on appeals, section Restat. But what will you say? Concerning which, see the Archdeacon in the chapter Decertationi, on the word Appellandi, on appeals, book 6. And the reason is because the despoiled person is seen to be aggrieved, therefore whoever and wherever he can appeal. It would be held to the contrary because a thief is held from the first contraction, as law Ei qui, on theft. Therefore, it seems that at the time of spoliation, when he is seen to be aggrieved, he ought to have appealed at no other time. Innocent, however, sees the note in the chapter Querelam, on elections, on the word De novo, in the beginning, that the despoiled person negligent through a year in seeking possession is not seen to lose the said possession. It is left to the arbiter of the judge, however, in what time the despoiled person is seen to lose possession if he is negligent in seeking, as is said in the chapter Mandatum, on rescripts, by Innocent in the gloss 1.

On prebends and faculties. 55.

Note that where someone from a rescript of the Pope or from a privilege can nominate to a vacant or vacant prebends, the nominee by such a privileged person does not prevail over the apostolic impetrator, Innocent, note 1, on prebends, book 6, by argument on prebends, doubt, because of this, he seems to have abdicated the power from himself.

On the restitution of stolen goods. 56.

Note that where someone holds a reserved benefice, that if such a person is expelled from the benefice, an interdict is not given to him, because thus reserved it affects the benefice as much as the possession, as the chapter Ut nostrum, on appeals, and Innocent there. To which, law Si minor, Digest on servants, for the sake of, well, however, it would be given if the office of the judge, if he were expelled with the case pending, in which office one does not require possession, but it suffices that one holds [it] at the time of expulsion, as noted by Innocent in the chapter Dilecti, on majors and obedience. To which makes [this], H. law, and thus with law Si, Digest on the condition of theft, and law Non termini, Digest on petitioning for inheritance, law Ci, note it would be according to some that, assuming that the reservation affects civil possession, not however natural, as law 1, section Dicitur, on violence and violent [men], by argument as is said in the sons, that from that tract from which it cannot be transferred, commonly it would be transferred as natural possession, as in a donation between husband and wife, Digest on acquiring possession, law 1, section Si vir. Thus it accords with law Si quis cum, and law M., section Si, on the causes of a thing, to which law 2, section A furioso, on usury. Item, assuming that the reservation affects possession as far as the Pope [is concerned], not however as far as an extraneous litigant, as is said in the sons in law Qui precario, Digest on procurators. And see 10, 1, 182, and 266, and 281, and section 7, decision, and see another case 1, decision 370.

On notorious facts. 57.

Note that if it is not made notorious to the judge, and the judge passes a sentence before it is proven that the fact is notorious, if, however, in the truth of the thing, the fact is notorious to the judge, though it is not notorious to the judge [formally], yet the sentence passed by the judge is valid, as noted by Innocent in the chapter Tua, on the cognizance of clergy and women, joined with the note in the same, Cum in iure, title on the tele [?], and chapter Cum ex officio, on prescription. To which law Furiosus, Digest on judgments.

On pending litigation and appeals. 58.

Note that where an auditor inhibits in a cause, he only inhibits those who come to the causes, or those who can injure the litigation, as in the lilies [cases], that with the appeal pending, all things must be in the same state. This is true as far as the litigants, not as far as strangers, as noted in law Creditor, on the mandator, in the beginning, Digest on mandates, on appeals, to the Roman [Rota], section 1, 2, book 6. How it is understood that pending an appeal nothing is to be innovated, say by Innocent in the chapter Dilectis, on exceptions, and in the chapter Dudum, cases by 5, dispensed, that it does not object, on elections.

On witnesses to be produced. 59.

Note that where an appeal has been made regarding an examination, the auditor to whom the appeal is made can receive witnesses to be produced without having taken cognizance of the grievance, because of the danger that can be in the absence of the witnesses, as is said in a similar case in law In lege, Digest on law, acquiring. And because it is doubtful whether the jurisdiction is of the first judge, therefore in doubt the judge of appeal receives the witnesses, by argument of law Ordinariam, Digest on liberty of cases. Note 1, decision 110 and 198.

On the sentence of excommunication. 60.

Note that where someone says he is excommunicated and asks to be absolved and does not assign the cause why he is excommunicated, that the judge has [the power] to absolve such a one ad cautelam (as a precaution), assuming that the cause of excommunication is not alleged, as is said in the sons, that where one appeals from an assignment.