[ULPIANUS libro septuagensimo quarto ad edictum. ] §2.11.4.prSed et si quis rei capitalis ante condemnatus iudicio sistere se non potuit, merito huic ignoscitur: rei capitalis condemnatum accipere debemus, qui morte exilioue coercitus est.
[ULPIANUS, in the seventy-fourth book on the Edict.] But also, if anyone, having previously been condemned of a capital crime, was unable to present himself in court, he is deservedly excused; we ought to understand "one condemned of a capital crime" as someone who has been punished with death or exile.
dixerit aliquis, quo ergo haec exceptio damnato? sed respondebitur fideiussoribus eius esse necessariam: aut si forte in exilium salua ciuitate abiit, ubi defensori eius exceptio ista proderit.
Someone might say, "To what purpose, then, is this exception for a condemned man?" But it will be answered that it is necessary for his sureties; or if by chance he has gone into exile with his citizenship preserved, where this exception will be of benefit to his defender.
§2.11.4.1Illud sciendum est eum, qui idcirco non stetit, quia capitis reus factus est, in ea causa esse, ut exceptione uti non possit: damnato enim datur.
It must be known that he who did not appear because he became accused of a capital crime is in such a position that he cannot use the exception; for it is granted to one who has been condemned.
plane si uinculis uel custodia militari impeditus ideo non stetit, in ea erit causa, ut exceptione utatur.
Clearly, if he did not appear because he was prevented by chains or military custody, he will be in a position to use the exception.
§2.11.4.2Praeterea si funere quis domestico impeditus non uenit, debet ei exceptio dari.
Furthermore, if anyone did not come because he was prevented by a funeral in his household, the exception ought to be granted to him.
§2.11.4.3Item si quis in seruitute hostium fuerit ac per hoc in iudicium non stetit, debet exceptione adiuuari.
Likewise, if anyone was in captivity under the enemy, and for this reason did not appear in court, he ought to be assisted by the exception.
§2.11.4.4Quaesitum est an possit conueniri, ne ulla exceptio in promissione deserta iudicio sistendi causa facta obiciatur: et ait Atilicinus conuentionem istam non ualere.
The question was asked whether an agreement can be made that no exception shall be raised in a defaulted promise made for the purpose of appearing in court; and Atilicinus says that such an agreement is invalid.
sed ego puto conuentionem istam ita ualere, si specialiter causae exceptionum expressae sint, quibus a promissore sponte renuntiatum est.
But I think that such an agreement is valid only if the grounds of the exceptions, which the promisor voluntarily renounced, are specifically expressed.
§2.11.4.5Item quaeritur, si quis, cum iudicio sistendi causa satisdare non deberet, satisdato promiserit, an fideiussoribus eius exceptio detur.
Likewise, the question is asked, if anyone, when he was not obliged to give security for appearing in court, promised with security, whether the exception is granted to his sureties.
puto interesse, utrum per errorem satisdato promissum est an ex conuentione: si per errorem, dandam fideiussoribus exceptionem: si ex conuentione, minime dandam.
I think it makes a difference whether the promise with security was made through error or by agreement; if through error, that the exception should be granted to the sureties; if by agreement, that it should by no means be granted.
nam et Iulianus scribit, si iudicio sistendi causa pluris quam statutum est per ignorantiam promissum fuerit, exceptionem dari debere: si autem ex conuentione tantae summae promissio facta sit, exceptionem pacti conuenti replicatione infirmandam Iulianus ait.
For Julian also writes that if, through ignorance, a promise was made for appearing in court for a larger sum than is prescribed, the exception ought to be granted; but if the promise of such an amount was made by agreement, Julian says that the exception is to be invalidated by a replication based on the agreement.