THE ENACTMENTS OF JUSTINIAN.
  
THE NOVELS.
~  LIII  ~
CONCERNING DEFENDANTS SUMMONED AND BROUGHT INTO COURT ; AND CONCERNING THE DELAY OF TWENTY DAYS GRANTED TO THOSE NOTIFIED TO APPEAR ; AND CONCERNING THOSE WHO FURNISH JURATORY SECURITY AND WHO DISAPPEAR BEFORE JOINDER OF ISSUE TAKES PLACE ; AND CONCERNING HYPOTHECATIONS WHICH ARE STYLED EX-CASU, AND WHAT PERSONS HAVE THIS RIGHT, AND UNDER WHAT CIRCUMSTANCES THEY CAN AVAIL THEMSELVES OF IT. CONCERNING WIVES WHO ARE UNENDOWED, AND ARE ENTITLED TO A FOURTH OF THE ESTATES OF THEIR HUSBANDS, WHO, ON THE OTHER HAND, ARE ALSO ENTITLED TO A FOURTH OF THE ESTATES OF THEIR WIVES, WHEN EITHER OF THE SURVIVORS IS POOR.


 
( S. P. Scott, The Civil Law, XVI, Cincinnati, 1932 ).
 
 
  The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
  Many persons have had recourse to Us, for the reason that they have been summoned by others, or taken into different provinces by virtue of an order issued by Us, or in obedience to judicial decrees, and by this have been caused much suffering; thus plaintiffs summon others, or exact security from them to appear within a certain time before a designated judge, while they themselves, remaining in the province, subject the former to great expense on account of the journeys which they are required to make.
CHAPTER I.
   
CONCERNING DEFENDANTS WHO ARE SUMMONED FROM ONE PROVINCE TO ANOTHER.
  Our compassion having been excited, We decree that when anything of this kind takes place, and the time appointed by the plaintiff for the execution of the bond, or the appearance has expired, and the defendant comes into court, but the plaintiff does not, and fails to appear within ten days after the arrival of the defendant in the province, the latter can then go before the judge and inform him of this fact, and be summarily discharged; and after the defendant has been sworn as to the amount of the expense which he has incurred on account of his journey and his residence in a strange place, judgment shall be rendered against the plaintiff who has brought suit to no purpose. And as it is not customary for citations to be served, or appearances to take place unless the plaintiffs produce sureties responsible up to a certain sum, by which they become bound to prosecute the case and obtain decisions in their favor, the said amount shall, by all means, be collected from them, and given to him who has been subjected to this unnecessary annoyance. If, however, the latter should swear that his expense was greater than the amount for which the plaintiff furnished security (although the sum which the laws call taxatio shall be prescribed by the judge), this can also be collected in addition, in order that persons may know that they cannot make a jest of the lives of others, but must select judges in the province of the latter, and proceed against their adversaries where they reside.
CHAPTER II.
   
CONCERNING THE BOND TO BE FURNISHED BY THOSE WHO SUMMON DEFENDANTS
TO APPEAR OUTSIDE OF THEIR OWN PROVINCE.
  We are aware that security usually is given in this place by plaintiffs to those against whom they bring suit, but, as this rule is evaded when they are called into other provinces, We order that if the judge or the Most Glorious Quaestor appointed by Our Imperial letters should direct anything of this kind to be done, no one can be summoned from another province before the plaintiff produces a surety in court to guarantee that, if he does not prosecute the case, or if, after having done so, he should be unsuccessful he will pay him the amount fixed by the judge in accordance with the distance which he is obliged to travel. We decree that everything shall be done which We have prescribed with reference to the appearance of the defendant; the sum fixed by the court shall be collected from the sureties, and given to the defendant; the oath of the latter shall be taken to establish the amount of the costs; and if he swears that he has expended a larger sum than that mentioned in the bond he shall receive it, in order that Our legislation may seem to be perfect in every respect.
CHAPTER III.
   
THE TERM OF TWENTY DAYS SHALL BE GRANTED TO THE DEFENDANT
AFTER SERVICE HAS BEEN MADE UPON HIM.
  At present, persons make a practice of violating the beneficial rule established in ancient times of using the clemency of Our laws, by making it the ground of vexatious litigation, as formerly, a person notified to appear in court was allowed ten days for deliberation, in which he could examine the case, and perhaps settle the claim and be released from liability; and, after the said ten days, he could accept service by indorsing the summons and then give security in court. Certain persons, however, being aware that Our laws do not, after issue has been joined, permit the judge to be rejected and another to be demanded, act fraudulently in this matter, with the connivance of court officers; and as soon as a citation is granted they bring the defendant into court without filing a complaint, or any bond, and compel him to join issue and defend himself, although he is not informed of the facts; so that, when issue has once been joined, he can not be permitted either to reject the judge, or demand another, if the one appointed should be liable to suspicion. In this way plaintiffs accomplish whatever they wish, and after having craftily obtained control of the defendant, they do with him whatever they please.
  (1) Therefore We order that when a summons is served upon anyone, the cause of action shall be specifically communicated to him; and that he shall, in accordance with the ancient legislation, not only be entitled to the term of ten days to put in his appearance, but this term shall be doubled, that is to say, it shall consist of twenty days; and if he chooses, he shall have the right to reject the judge and demand another, or acknowledge the debt, or be released by his adversary from the suit in an amicable way; and that he shall not, either for the sake of annoyance, or by fraud, be compelled to have his case heard by a judge who may be liable to suspicion, or otherwise unacceptable to him, or more frequently by one who entertains dislike to him; but the party who brings the action shall not be entitled to any delay in order to deliberate with reference to the joinder of issue for which the defendant appears.
  (2) The complaint having been received, only personal security shall be furnished by the defendant; and, the fees having been paid in accordance with Our Constitution, the defendant shall sign the paper which is called the answer; he must state the time when the complaint was served upon him, in order that no fraud may be committed in this respect, and, when the trial begins, the judge shall ask the defendant to show whether the twenty days allowed for deliberation have elapsed, the defendant must tell the truth, which shall also be established by the date and the signature to the complaint, and if the defendant says that if the said term of twenty days has elapsed, the trial shall then proceed. The defendant shall, during this time, be permitted to file objections to the judge, and demand that another be appointed; or he can, with the plaintiff, select another or even amicably agree to one; and, during this interval, the rights of the defendant shall not, in any way, be prejudiced, nor shall any execution be issued, or served by the officers of justice; and the defendant shall furnish a judicial bond which the judge will approve, and be entitled to twenty days for deliberation. If these rules should not be observed, all the steps taken by the plaintiff will be void, even though the case may have already been begun; still, after joinder of issue, he will be permitted again to institute proceedings after the expiration of another twenty days, just as if joinder of issue had never taken place.
CHAPTER IV.
   
CONCERNING JURATORY SECURITY.
  We do not permit a defendant, after having once rejected a judge and accepted another, to reject the second one. For while We protect the interests of the defendant, We are, by all means, opposed to adopting any measures against the plaintiff by countenancing further delay; but if the defendant should swear that he will come into court, and, before joinder of issue has taken place disappears from this great city, the plaintiff shall, even before joinder of issue, be permitted to go before the judge who has been appointed to hear the case, and notify him of the disappearance of the defendant. The aforesaid judge, if he is the Governor of the province, shall direct the defendant to be considered guilty of perjury, and, so to speak, to have accused himself of this offence by having become a fugitive. Where, however, the judge is not the Governor of the province, but was appointed by some magistrate, either by virtue of a pragmatic sanction, or an Imperial order, or even if he had been appointed by some other public official, the plaintiff can have recourse to the magistrate who made the appointment, in order that he may exercise his authority to compel the appearance of the defendant, lest the case of the plaintiff may be fruitless, as the judge cannot do anything, for the reason that joinder of issue has not yet taken place, and the defendant, who has treated the law as well as his oath with contempt, has left the plaintiff without any opportunity to obtain lawful relief.
  (1) Therefore, to prevent the case from remaining in abeyance, because of the defendant remaining concealed and his appearance being delayed, the judge shall ascertain, as far as he is able, to what place the defendant is said to have gone, and shall fix a time for his appearance; and if he does not come within that time (provided the judge is convinced that the nonappearance of the defendant is not due to the act of the plaintiff), then he shall hear the case, and put the plaintiff in possession of the property of the defendant to the amount of the debt, as stated; and, when he has been placed in possession, he shall hold the said property as security for the claim, and if the defendant should afterwards appear, he can recover his property after having previously indemnified the plaintiff for all expenses incurred, and when the property has been returned to him, he must furnish a surety, and the case shall proceed.
CHAPTER V.
   
CONCERNING HYPOTHECATIONS CALLED EX-CASU MILITIARUM,
AND WHAT PERSONS SHALL BE ENTITLED TO THIS RIGHT,
AND WHEN THEY CAN EXERCISE IT.
  It is extremely advisable to regulate what follows by means of a general law, on account of the doubt attaching to the questions involved. For it was at first uncertain whether offices could be subjected to hypothecation, or whether they were exempt, but this doubt was removed by a law, and it is now settled that some offices can either be sold or encumbered. We have examined the opinions entertained by Our ancestors on this subject, and have come to the conclusion that, in former times, offices could not be hypothecated, but that they were subject to certain claims which no longer exist. The Emperors, moved by compassion toward creditors who constantly applied to them for redress, by degrees granted them the right of hypothecation, when the offices were public, and they did not receive any other compensation except that derived from Imperial munificence.
  (1) Hence We order that hypothecations which are designated ex-easu shall not indiscriminately be granted to all persons, unless a creditor has lent money for the purpose of purchasing the office; but where there are any children, or a surviving wife of the deceased, We give them preference over all the creditors, and by virtue of Our Imperial order We grant them the privilege of taking an hypothecation on the office of the deceased, not, however, as part of his estate, but as a concession of Imperial liberality. We establish this rule in order to furnish a deserved consolation to those who leave an estate, as well as to those who have none. Where, however, the deceased left neither wife nor children, nor any creditor who lent him money to enable him to obtain his office, under such circumstances We grant other creditors the right; for We do not desire it to be said that We have done something that is not humane, and that We have enacted a law for any other purpose than to perform an act which is pious and acceptable to God. The privileges which have been bestowed upon the Silentarii shall remain in full force.
CHAPTER VI.
   
CONCERNING A POOR WOMAN WHO IS UNENDOWED.
  As every law enacted by Us is based upon clemency, and We see that when men married to women who have brought no dowry die, the children alone are legally called to the succession of their father's estates, while their widows, even though they may remain in the condition of lawful wives, for the reason that they have not brought any dowry, and no ante-nuptial donation has been given them, can obtain nothing from the estates of their deceased husbands, and are compelled to live in the greatest poverty, We wish to provide for their maintenance by enabling them to succeed to them, and be called to share their estates conjointly with the children. But as We have already enacted a law which provides that when a husband divorces his wife, whom he married without any dowry, she shall receive the fourth of his estate, just as in the present instance, whether there are few or many children, the wife shall be entitled to the fourth of the property of the deceased, if, however, a husband has left a legacy to his wife and this legacy amounts to less than a fourth of his estate, this amount shall be made up out of the same. Hence, as We come to the relief of women who have not been endowed or divorced by their husbands, so We assist them where they have constantly lived with them, and We grant them the same privilege. Again, everything that We have stated in the present law with reference to the fourth to which a poor woman is entitled shall equally apply to a husband, for like the former one, We make this law applicable to both.
  (1) But if the woman has property of her own in the house of her husband, or situated elsewhere, she will have the right to retain said property, and it shall not, under any circumstances, be subject to hypothecation for the benefit of the creditors of her husband; unless he is the heir of his wife to the amount established by the present law.
  (2) We enact these provisions as applicable in cases where either of the two married persons has not brought either a dowry or an antenuptial donation, and the survivor is poor, or the deceased was rich. For if the survivor has property elsewhere, it would be unjust when, having neither brought any dowry nor ante-nuptial donation, he or she should oppress the children by sharing the estate with them; and as another of Our laws provides that a wife who does not bring any dowry cannot, by means of an ante-nuptial donation, acquire any property from her husband, We desire that this rule shall continue to remain in force, establishing, however, an exception to it where a husband has bequeathed a legacy, or some other share of his estate to his wife; for We by no means wish to prevent this, in order that the laws may, in every respect, be consistent with one another, and that the poverty of one spouse may be compensated by the wealth of the other.
EPILOGUE.
  Your Highness will hasten to cause this law, which it has pleased Us to enact, to be observed and carried into effect by everyone; and this you will do by means of a general proclamation issued from your office, in order that what We have decreed may everywhere be obeyed.
  Given on the tenth of the Kalends of October, during the eleventh year of the reign of Our Lord the Emperor Justinian, and the second after the Consulate of Belisarius.