Title XXXII: On the Office of a Judge

Latin source headnote: It pertains to the office even of a delegated judge to provide an advocate for a party that cannot have one; and he will be able to appoint a member of his household.

Honorius III, to the Archbishop of Saint Leonard and the Abbot of Salerno.

We learned from your letters that, when we decided to commit to you the cause disputed concerning certain possessions of the monastery of Saint Peter of Amalfi between our beloved sons the Abbot and Convent of Fossanova on one side and the Abbot and Convent of the monastery of Cava in the diocese of Salerno on the other—possessions that brother Sylvester of good memory, a monk of Fossanova, when he had visited the same monastery of Saint Peter, sold to the same Abbot and Convent of Cava to the prejudice and grievance of that monastery of Saint Peter—after the parties had been established in your presence, the party of the aforesaid monastery of Saint Peter proposed that it could not have anyone from the city of Salerno as advocate and implored your office concerning this. You, brother archbishop, provided for it Master R. Capuda, Treasurer of Acqui and your cleric, to furnish protection in that cause. But Brother Stephen, Prior of Saint Mary de Dompno, a monk of Cava, proposed for his monastery that this had been done to its prejudice because the said R. was your cleric and member of your household.

We, therefore, being unwilling that decision of the business be impeded by frivolous exceptions, decided to remit the cause itself to you. By apostolic writings we command that, notwithstanding this, granting them the aforesaid advocate, you are to proceed in the business itself, with the obstacle of appeal removed, without the loss of delay, reason leading the way, according to the contents of the former letters. And because the Abbot and Convent of Cava are said maliciously to conceal the instruments of the monastery of Saint Peter that the said S. delivered to them at the time of that sale, after prior admonition you are to compel them by ecclesiastical censure, as shall be just and with appeal set aside, to exhibit them to you.

Latin source headnote: When the noble office of the judge is invoked, joinder of issue occurs; it is otherwise with the mercenary office.

Gregory IX.

The office of a judge, wherever it is proposed in place of an action—as when restitution in integrum is principally sought—requires joinder of issue; in other cases, recourse can be had to it without joinder of issue before and after entry into the cause.