[Tractatus plurimi iuris]

against the defendant or not. And if he has one, whether he is excludable or declineable. Also, regarding the person of the plaintiff, whether he has legitimate standing to stand in judgment or not. Regarding the ability and suitability of the defendant's person, it is neither asked nor disputed, because when the defendant is called to judgment, whatever he may be, he can defend himself. Whence even if the devil were in judgment as a defendant, the defense would not be denied to him, since it is a rule of natural equity. Whence Innocent referring to Pope Innocent IV says that the defendant does not have to firm up or legitimize his person in judgment, but he will confirm this by provoking, and since he necessarily has to respond. And judgment redeems the unjust. reference: Digest 46.1.13. And this is necessarily so for the defendant.

Also, it is asked in the same part regarding the person of the procurator legal representative, whether he can stand in judgment. Whether he has a sufficient mandate from the procurator. These and similar things are expedited. Also, regarding the place of judgment, whether it is safe and suitable for the defendant. Also, regarding the form of the petition libellus formal written accusation/complaint. Regarding these and similar things, it is seen as preliminary, as if regarding the preambles to the judgment.

In this first part, it is asked regarding the presence or incompetence of the forum, regarding the legitimation and ability or inability of the persons then intervening in the judgment, regarding the suitability or refutation of the place, and the aptitude and interpretation of the petition, the sufficiency or insufficiency of the mandates of the procurator and suchlike. And those things which are of the principal business are not treated here. Or rather, I say this regularly because it fails in certain cases about which in the first chapter of the sixth book reference: Liber Sextus, De litis contestatione, as will be patent in the process.

In the second part, we treat the principal business as we shall see there. In the third, an end is imposed on the business itself by a sentence. It leads to the executive effect. But even before we begin the process, it must be known that the plaintiff ought

to approach the judge of the defendant. Since there is a rule regarding this handed down in the chapter "Cum sit generale" regarding competent forums. But this fails in many cases in which the defendant finds a forum not of his own judge, about which in the final chapter of the same title. And especially by custom, clerics drag laymen to the ecclesiastical judgment even in a civil case as in the chapter "Cum sit" already alleged. And note Bernard Bernardo di Botone in the chapter "Si clericus" in the last gloss. And Guil. Guillaume Durand in the Speculum on the edition of the judge, paragraph 1, in the beginning.

Also, the defendant can tacitly prorogate extend/transfer the jurisdiction of a judge not his own, by contracting or promising to pay, and responding in a certain expressed place. This is true regarding an ordinary judge, otherwise in a delegate. To this, however, so that a cleric may be able to prorogate the jurisdiction of a non-own judge upon himself, many things are required which ought to occur in the said chapter "Significasti". Note there. But whether one, by prorogating once, can repent, and the judgment of the prorogated judge is declined, one must have recourse to the first chapter of De iudiciis and what are accustomed to be noted there. But who is a competent judge for someone for these things, it must be noted as Guil. says in the Speculum, part 1, title 1.

Division of judges.

Of judges, some are delegates, some ordinaries, some auditors, some assessors, some arbiters, some arbitrators. But it can be said by distinguishing only two members: that every judge is either a delegate or an ordinary. Some, however, are mixed, like the auditor of the apostolic palace, who is neither a delegate nor an ordinary, but his power behaves toward both: because he has ordinary power in cognizing, and delegated power in pronouncing, as is noted in the Clementine "Auditor" regarding rescripts. And what...