[Tractatus plurimi iuris] (1483) - Page 6

position, it would induce a nullity of the judgment and process reference: Causa 2, quaestio 7, paragraph "Definitiva"; De accusationibus, "Qualiter", distinction 2; in Speculum, De sententia, chapter "Plana", paragraph "Iuxta propositionem". Nor can it be omitted even by the consent of the parties reference: in the notable gloss in chapter "De causis", De officio delegati; and in the second gloss in Clementinae, "Saepe", in the last gloss. And some of these particular acts are for the ordination of the judgment or the suit. Some are for the instruction and decision of the suit or case. Whence citations and laudations are acts of the ordinary judgment, and similar things. But confessions, attestations, and probations and rights which regard the fact are acts instructional and decisional of the case reference: by Hostiensis and Innocentius in chapter "Causam", 1, De testibus; and in Clementinae, "Saepe", De verborum significatione, in the gloss "Faciat hoc". And these things [are] for the present, regarding the order of the ordinary judicial process to be regularly observed in cases.

Concerning cases in which the said order of judgment is not necessarily observed in all things.

But there are some cases in which, by privilege of law or of man, or by the nature of the cases, such an order is not necessarily observed through all things, or even ought not be observed in any way, nor does one walk through all the parts of the judgment in them. An example is of cases privileged by law, and it is a beneficial, matrimonial, usurious, or tithe case. In the cognizance and disposition of which, by law, one is held to observe the judicial order, and therefore I said "necessarily," because one can if one wishes reference: in Clementinae, "Dispendiosam", De iudiciis. Concerning the privileges of man, such as when a prince dismisses cases and commands that they be proceeded in simply and plainly and without the noise of judgment and form, and then the judge cannot observe the judicial order through all things, because then those things which are of the form and substance of the judgment ought not

to be observed, such as the libel, the litis contestatio, and these things are of the noise of judgment, just as exceptions, appeals, replications, and which then more strongly ought to be amputated and repelled in other [cases]. And I said that then the solemn order ought not be observed; if, however, it is observed, the public not contradicting, it is valid, as in the cited Clementinae, "Saepe," where the form of proceeding is handed down which ought to be observed according to such a mandate. Likewise, sometimes it is not observed by the nature of the case. An example is in notorious cases. For to observe the judicial order in them would be to pervert the order reference: in the Decretal "Ad nostram", 3, De iureiurando; concerning which also in chapter "Vestra", and chapter "Magna", De cohabitatione. Likewise, in summary cases and cognitions, in which also it is not observed, nor is there a transition through the parts of the judgment. But among the summary probations, [evidence] is received and [the judge] informs himself, concerning which reference: De officio iudicis, chapter "Postremo", and therefore I said "or ought not to be observed in any way." Likewise, in an extraordinary judgment, namely inquisitorial, which is expedited by the office of the judge, not at the provocation of someone or a litigant, and thus the judicial order is not observed reference: in chapter "Quoniam frequenter", "Ut lit non contest.". And thus, according to the diversity of cases, diverse processes arise. Concerning all these judgments and processes, therefore, and concerning the process of execution for graces, we shall see successively.

Preparatory acts of the judgment.

First, therefore, concerning the ordinary judgment, before I come to its expedition, first it must be noted that there are some preparatory acts for the judgment itself, so that some investigation or mature premeditation may be offered, through which the judge and the parties—at least the plaintiff—prepare themselves for entering into the judgment or not. And understanding in this way, Guil. Guillelmus Durantis in the Speculum places a special rubric concerning preparation