[Tractatus plurimi iuris]

himself nor by a respondent caring to appear, at the petition and requisition of the same plaintiff or his procurator appearing, and accusing the contumacy of the same absent [party], and asking the same to be reputed contumacious by us, we repute him as he is deservedly contumacious." And according to this form, the notary will also write, "F., in the year of the Lord, etc., on such a day, at such an hour, before such a judge appeared such a plaintiff, or such a procurator of his, who produced a procuratorial mandate, the tenor of which is inserted below, together with citation letters, with such letters sealed by such a seal, or an instrument made upon the execution of the same citation, the tenor of which is contained here below. And he accused the contumacy of such a cited [party] not appearing, asking him to be pronounced and reputed contumacious by the judge himself, and opportune letters to be decreed against him. Whom, having been expected for a long time, the judge himself reputed contumacious, and decreed opportune letters against him." Nor is it a concern whether the notary writes thus in his own person or in the person of the judge, in this mode: "We repute such a one not appearing, having been expected for a long time, contumacious, etc.," about which "On Conversion of Spouses," A while ago original: "Dudum", "On Faith of Instruments," chapter 1 and 2. And thus the plaintiff ought to appear in the term before the judge and accuse the contumacy of the defendant. If, therefore, the plaintiff also does not appear, then a compensation of the contumacy of the plaintiff with the contumacy of the defendant will be made, as noted "On Forum and Contumacy," Actor original: "actor", book 6. If, however, the defendant does not appear, the judge is absent or impeded, so that if he had appeared it would not have been proceeded in the cause. Whether he is reputed contumacious and ought to be condemned in expenses, there is a notable gloss in the last chapter, "On Forum and Contumacy," where the gloss lastly says that then the judge wants to begin the penalty, namely either from excommunication or mission, as in the chapter Neither original: "c. ne", "On not contesting the suit," as noted there. And the other ought to be more patient from the beginning, as he should fear those more, as in the same title, That when original: "ti. qm", § last, at the end. Until therefore it would not be ready,

mission will be begun, because one must have recourse first to things than to persons, as noted there. The judge, therefore, proceeding to the mission against the contumacious in a real action, for instance over a horse or land, he decrees the plaintiff to be sent then into possession of the thing sought, with custody. And let the mission be made through these words: "We decree, constitute, or send, or command you to be the possessor of such a thing with custody. And we wish that such a minister of ours place you actually into possession." And such a mission, the judge ought to give, so that he may fulfill this and report to him when it has been done. Thus says Innocentius in chapter 1, "On the one who is put into possession," although Innocentius posits there also another form of mission. That, however, pleases Hostiensis there and Joannes Andreae in the Novella. And from such a mission, from the first decree, the plaintiff will be a possessor of the thing, but commutable, so that if the defendant comes before the judge within a year and provides caution to stand to the law and restores the expenses to the plaintiff, he will recover the possession, as in the chapter Since frequently original: "quoniam frequenter", § "In others," "On not contesting the suit." And granted that the plaintiff sent, on account of the power of the defendant or the cause of deceit, cannot corporeally obtain the possession, still by the disposition of the law he is understood to possess for the effect of the annual prescription, as in the chapter It happens original: "c. contingit", "On Forum and Contumacy." If, however, the defendant has not come within a year, providing caution, as has been said, [for the] restitution of expenses, the plaintiff also about the second decree, through the course of a year, will be the true possessor according to the common opinion, as in the alleged § "In others," and noted there, and "On Forum and Contumacy," It happens, and the defendant is not heard except upon the property of that thing. If, however, it is a personal action, for instance because one acts by a condition of the certain from a loan, and the defendant is contumacious, the plaintiff will be sent into possession of the movable things of the contumacious [party], if he has such. Otherwise, into possession of immovables, for the measure of the debt declared in the plaintiff's libel, which he also has to declare by oath.