Chapter — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Chapter III. On the Obligations of the Apparitor
- The apparitor (huissier) is he who by office carries summonses 1 (in French, citations) and mandates of justice, and completes the executions decreed by the judge. Hence the office of the apparitor is twofold.
1 Understand the order of appearing in court; for the word vadimonium rather signifies a promise of appearing in court.
Since apparitors are ministers of justice, it is supremely fitting that they discharge their office very humanely, and temper the rigor and harshness of their ministry as much as can be done. They ought to be sufficiently instructed in all things which pertain to their office. They must also show fidelity in executing the mandates of the tribunal, equally guarding both against negligence in discharging their office and against rigor and vexation toward those whom public justice pursues. A special care also lies upon them, lest they omit any necessary formalities in their acts; for otherwise they would often harm justice, and would be bound to repair the damages coming from this.
- Apparitors act unjustly especially:
1º If by price or favor they allow themselves to be corrupted to the prejudice of the client, for example, by prolonging or neglecting the denunciations of sentences, or by doing other things from which it happens that the creditor cannot receive payment. Likewise by favoring certain solidary debtors, so that they do not include them in executions.
2º If they do not grant the time fixed for making juridical acts; if they ascribe a day falsely (fausses dates); if they affirm something false in verbal acts (procès verbaux); if they do not make at the prescribed time the juridical acts committed to them.
3º If, in searching houses, they act too harshly in order to extort some gift; if they inflict unjust force or another injury; if they state what is false in their acts.
4º If they exceed the mandate of the judge, or the statutes of the law, in seizing the things or goods of private persons; if they do not observe the just price in the sale of things seized, etc.; if they retain for themselves part of this price, etc.
- Questions. - QUESTION 1º. Are apparitors bound to restitution if they have accepted a price above the tariff determined by law under the title of donation?
Resp. Yes, of itself. The reason is that such a donation generally cannot be called spontaneous. Hence if the excess of the price is something grave, they are obliged under mortal sin to restore it. - Thus commonly with the Salmanticenses. Nevertheless, if they had undergone extraordinary and undue labor, they could accept something above the ordinary price. - St. Ligorius 2.
2 Neither the Salmanticenses, whom the Author here calls upon, nor St. Alphonsus in reality have anything about Apparitors, but they discuss Advocates, Notaries, Tabellions, Relators, etc. Yet the matter comes down to the same thing. For the same question is made about all those to whom a wage is owed for some office which they perform in judgments.
Moreover, if the question is instituted with the Author about a price fixed by laws, the doubt which St. Alphonsus also touches must not be passed over in silence (Bk. 4, n. 231), namely whether the law establishing the tariff for them (notaries, etc.) obliges in conscience. But he himself responds thus: “Navarrus, Trull., etc., apud the Salmanticenses (tr. 29, ch. 5, n. 18) affirm, since it is a just law. But Machado and Fagundez deny, because this law is penal, or at least mixed, and therefore does not oblige in conscience, as Villalobos, Diana, and others hold concerning a mixed law. Lugo also denies with Turrianus and others apud the Salmanticenses (ibid. n. 19), but led by another reason, namely because, since tabellions and other ministers of justice ought to live from the stipends of their own office, and in the course of times the prices of things and expenses according to custom concerning food and clothing are increased, therefore they do not unjustly demand something above the tariff.” And the Salmanticenses say that this opinion of Lugo seems in these times more conformable to equity. To these things note that the Salmanticenses (l.c. n. 20), even setting aside the reason or opinion of Lugo, hold each of those opinions as probable.
Besides, even if the opinion of the Author seems to be preferred, as the more common, who otherwise supposes that the price fixed by law is altogether just, and therefore excludes Lugo’s hypothesis about a wage determined by ancient laws which afterward, because of the increased price of all things in the course of times, has become too small, nevertheless it must be added that the same opinion suffers its exceptions, just as the reason brought forward suffers exceptions, namely that such a donation generally cannot be called spontaneous. For both in many circumstances (see Lugo, On Justice and Law, disp. 44, n. 19, and Salmanticenses, l.c. n. 24) a donation can and must be held wholly spontaneous, and moreover not every donation even less spontaneous must be judged to lack that consent which suffices for transferring ownership. For not rarely occasions present themselves even to the unwilling which imply a certain necessity of giving, and yet no one thinks that a burden of restitution must be imposed on the donees.
- QUESTION 2º. Can an apparitor demand multiple wages if at one and the same time he carries different summonses?
Resp. 1º From natural law considered in itself alone, it would seem that one must answer yes, because he furnishes the same utility to each one requiring him as if he undertook the journey and work for one alone, according to what was said in the Treatise On Contracts in General, n. 757. - Thus St. Ligorius, Hom. apost., tr. 13, n. 68, etc.
Resp. 2º Attention must be given to the statutes of particular places. But by French law this is prohibited. Nevertheless, whatever the case may be concerning the civil law, a usage has prevailed, with the Government knowing and seeing it, that advocates and procurators so compose the matter that for individual summonses apparitors have nearly the same price.