§ 2. Concerning Auxiliaries Of Judges

2323. • Auxiliaries of judges help them in settling causes in a threefold manner: 1. by counseling: in which office auditors or referendaries, and assessors or counselors, function; 2. by writing the acts of the judgment: which notaries do, who are also called scribes, chancellors, actuaries, tabellions, protocolists; 3. by executing what the judge commands: in which business attendants and judicial messengers are occupied, who are also called apparitors, runners, beadles.

Principle. Auxiliaries of judges "are held to exercise their office JUSTLY AND FAITHFULLY, whether from the debt of the office only, or also from oath. - Likewise, they are held TO KNOW those things which pertain to their office, and to employ due DILIGENCE, furnishing all necessary things, asking for just terms, appealing, when it has been necessary."⁵

This general principle having been premised, it remains that the following things be noted separately.

2324. • I. Referrers or Ponents are those to whom the examination of the suit or recognition of the cause is committed, that they may refer it to the judges to be defined. Generally such an office is committed to one from the judges themselves, who by this reason is called the commissioner of the cause, or judge-relator.

The Referrer SINS and is held to reparation of the damage that comes about: 1. If by defect of study, or by carelessness, he reports badly, or omits things which pertain to the substance of the suit; - 2. if he favors either party; - 3. if he divulges the sentence before the time.

Note. But from the fact that knowledge of the cause belongs to the Referrer, it by no means follows that the other judges can neglect knowledge of the cause; for if they were to neglect it, the judgment would depend, in great part, upon the report of the Referrer alone, which not rarely totters. - Therefore each judge is held to weigh the cause considerately, and then, from his own knowledge, to cast his vote.

II. Counselors are held to the same things as the judge himself, insofar as they cooperate proximately with him in passing sentence. - Recall what was said concerning the Judge, n. 2296 sqq.; and concerning Counselors, n. 980, 983, 984, and 988.

2325. • I. A scribe or secretary is said to be one who has been deputed by legitimate authority, that in writing he may report testimonies, the sentences of judges, and the other things which are done in tribunals. From this it is clear how great prudence the office of Secretary requires for itself; for he himself is, as it were, the right hand of the judge.⁶

A SCRIBE can commit various injustices, especially:

1. If he does not use due diligence for reporting into authentic books all things brought forward and done in the tribunal. For defect of this diligence, unless it is altogether involuntary, easily induces grave fault and the obligation of restitution.

2. If from malice he omits something in writing, or if he adulterates the public tablets committed to himself, or keeps them badly; if he does not add the due formalities and signatures, or does not take care that they be added; if he does not faithfully transcribe the testimonies or words of witnesses, whether by exaggerating or diminishing, or by changing or inverting.

3. If he betrays a secret committed to himself; if he manifests a sentence not yet published; if, without the prescription of the judge, he shows the processes completed to the parties; if he hands over to the same parties the acts of the judge before they have been signed according to the legal forms. For then he exhibits a maimed and false instrument, the dispatch of which is of no value.

4. If, for increasing his salary, he amplifies more than is equitable the acts to be distributed; if he demands an unjust price, etc. - Moreover, as to stipend, he is held to stand by the legal or usual tariff, if by the passage of times the legal tariff has become insufficient. - Besides, all commonly say that the scribe cannot receive from the parties anything beyond the just price, even under title of donation; for such largesses are never spontaneous. Yet, if he undertook some extraordinary labor, it would certainly be lawful to receive something more.⁷

2326. • II. A notary or tabellion is said to be one who has been legitimately instituted for writing and noting acts, or instruments, which make faith either in judgment or outside it. The office of Notary is most grave, since public faith is committed to him. Hence that very well-known verse:

Let the notary be experienced, faithful, diligent.

Therefore he ought to be: 1. Experienced; whence he sins gravely against justice, if from ignorance or negligence of his office he omits those solemnities and necessary conditions which are required for the validity of the act. - 2. Faithful; whence he likewise sins gravely against justice, if he violates an oath, or a secret; if he conceals instruments from the party requesting them, especially those which contain legacies; if he makes a false instrument; if he writes the testament of a man deprived of the use of reason; if he adds to or takes away from the pacts of the contracting parties something of grave moment; if he does not warn them concerning clauses which can harm them, etc. - 3. Diligent; whence he sins gravely, and is held concerning damage, if he prepares acts negligently, e.g. through an unsuitable transcriber, or keeps them badly; if he defers, without just impediment, the dispatch of the cause; or brings it about that judicial acts come to other judges than to those whom the order of the forum designates, etc.⁸

Concerning the Notary, moreover, those things are valid which above (n. 2325) we said concerning the scribe.

2327. • IT IS ASKED. Whether a notary is held to restitution toward the FISC, if in preparing an instrument of sale or inventory, at the request of the parties, or even with himself hinting it, he does not inscribe the true price of the thing, but another lesser one, so that the TRIBUTE to be paid may be DIMINISHED?

Resp. It is controverted. - Some affirm, because thus he cooperates with the defrauding of tributes: which is wicked and unjust on the part of the magistrate, to whom the Republic trusts. - Others deny, provided that at least the lowest price is reported in the authentic writing. - Finally others totally excuse him, because from custom generally received even by upright men, the whole price, even the lowest, is not usually declared, but only a little beyond the middle part, or about two thirds of this price, is declared. But if the parties do not sin by dissimulating the true price, neither does the notary sin from cooperation; for he himself is not constituted, like one placed over taxes, for exacting tributes, but for preparing instruments. Thus Gury⁹ (cf. n. 967).

2328. • I. An apparitor (elsewhere Commissioner) is he who by office brings the order of appearing in judgment and the mandates of justice, and carries out the executions decreed by the judge.

Apparitors sin and are held to restitution: 1. If they allow themselves to be corrupted by price or favor to the prejudice of the client; - 2. If they do not grant the time prefixed for juridical acts; - 3. If, searching houses, they act more harshly, that they may extort some gift; - 4. If they exceed the mandate of the judge, or the statutes of the law, etc.; - 5. If, under title of donation, they receive a price above the tariff determined by law; for such a donation generally cannot be called spontaneous: as we have already noted concerning the scribe n. 2325, 4.¹⁰

2329. • IT IS ASKED. Whether an apparitor or commissioner can exact a MULTIPLE SALARY, if at one and the same time he brings diverse summonses?

Resp. St. Alphonsus:¹¹ It is necessary to distinguish: 1. If a price has been taxed for the apparitor (Executor or Commissioner) for the occupation of each day of his, he cannot exact more, as is clear. - 2. If the commissions are disparate, and a special salary has been assigned for each procuration, Lugo rightly says that the Commissioner can exact several salaries according to the number and quality of the executions, and Lessius holds the same (cf. n. 1036, q. 2).

In FRANCE, Gury testifying,¹² although the law prohibits this, nevertheless the usage has prevailed, the Government knowing and seeing it, that advocates and procurators so arrange the matter that for individual summonses apparitors have almost the same price.

2330. • II. The other MINISTERS of judges, for example interpreters, attendants, armed horsemen, keepers of prisons, etc., are similarly held to fulfill their own office rightly, faithfully, and justly.

Whence they sin and are held concerning damages: 1. If they exact anything beyond the just stipend; - 2. if they warn defendants whom they have been ordered to seize, that they may take flight; or debtors, that they may hide goods to be assigned to creditors; - 3. if they act more harshly and inhumanly toward them, especially for extorting money or other gifts; - 4. if they do not execute the things commanded at the constituted time.¹³