Of Select Questions

Regarding Disputed Law,

Drawn from Books 5 and 6 of the DigestsThe Digests (or Pandects) were a massive 6th-century compilation of writings by Roman jurists, forming a core part of the Corpus Juris Civilis, the foundation of civil law.,

Decorative woodcut initial 'E' featuring scrolling foliage and a long-necked bird, likely a heron or peacock.
Book 5, Title 1.

Although the thought of one who detests lawsuits may be show proper restraint, it is nevertheless permitted for a Christian man to handle lawsuits, both in his own name and in the name of another. Wigand against the Anabaptists, page 183; Chemnitz, Commonplaces, chapter 4, location 5; The Honorable Preceptor Mr. Harpprecht, Dissertation on Procedure, from the beginning; Robert Bellarmine, Controversies 1, book 13, chapter 9. The author is defending the legal profession against radical religious groups of the time, such as Anabaptists, who argued that Christians should not engage in litigation. However, we believe that one litigating justly ought not to deceive their adversary. Mynsinger, 3rd Observation, 6; Covarrubias, 1st Variety, 2; Decianus, 2nd Tract on Crimes, 14, number 27; Magonius in The Advocate's Guide, part 2, chapter 4, page 152, etc.

2. Those were formerly called "ordinary judgments" which (as was mostly the case) took place before appointed judges, not before MagistratesIn Roman law, a Magistrate (like a Praetor) usually set the legal formula, while a private citizen called a "judex" (appointed judge) heard the evidence and issued the verdict.. Truly, those were named "extraordinary" (of which there were very few) which, being worthy of greater privilege and favor, the magistrates themselves conducted. Antonius Faber, 4th Conjecture, 7; Busius on Law 12; here Hilliger on Donellus, 17, chapter 22, G. But today they are accustomed to indicate an extraordinary judgment as one in which proceedings are conducted summarilyoriginal Latin: "de plano" — literally "on the level ground," meaning an informal proceeding without the full solemnity or complex stages of a standard trial.; an ordinary judgment [is one] where the solemn order of judging is observed. Friedrich Tileman, Pandect Dissertations, 12, Thesis 31, volume 1.

3. We call it a "criminal judgment" where public punishment is sought; a "civil" [judgment] is where the parties seek to have something adjudicated to themselves. Duarenus, 1st Dissertation, 35; Robertus, 4th Sentence, 9; Charon, 3rd Verisimilitude, 19; Concenatus, 1, question 7; Menochius, case 265; see however Justus Meyer, Pandect Dissertation, 5, Thesis 10, etc. However, when a civil question is prejudicialA "prejudicial question" is a preliminary issue of law or fact that must be decided first because the outcome of the main case depends upon it. to a criminal one, while the latter is pending, the former rightly remains at rest. Law "final," Code of Justinian, on the order of judgments; Trentacinquius, 2, title on judgments, resolution 7.

4. A question of interim possessionoriginal: "momenti" — referring to "lis vindiciarum" or the temporary custody of a thing while the main ownership case is decided. and of ownership cannot be debated and determined by a judge at the same time. Law 38 on this title; Law on "ordinaries," Code of Justinian on "Rei Vindicatio"; Law "uncertain," Code on interdicts; where Donellus and almost all other Doctors of Law [agree], through the Law "when the farm," the last paragraph, Digests, on "where by force." See Cujas, 2nd Observation, 35 and 7th Observation, 38; Antonius Matthaeus, Digest Dissertation 5, Thesis 8; Ummens, Dissertation on Procedure 6, number 45.

5. An action in remA legal action directed against a "thing" (property) rather than a specific person, usually to recover ownership. ought to be pursued where the thing is located; not also where the possessor has their domicile. The last Law, Code of Justinian, where an action in rem [is brought], and there Vultejus; Law 38, Digests on this [title]; Donellus, 17th Commentary, chapter 17; Duarenus on this title, chapter 12. Add Antonius Matthaeus, Pandect Dissertation 5, Thesis 9; Marcus Lycklama... The text ends mid-name; the catchword on the original page is "clama."