Ne quis eum qui in ius vocabitur vi eximat
(No One Can Forcibly Remove a Person Who Has Been Summoned to Court.)
1 Ulpianus libro quinto ad edictum. Hoc edictum praetor proposuit, ut metu poenae compesceret eos, qui in ius vocatos vi eripiunt. 1Denique Pomponius scribit servi quoque nomine noxale iudicium reddendum, nisi sciente domino id fecit: tunc enim sine noxae deditione iudicium suscipiet. 2Ofilius putat locum hoc edicto non esse, si persona, quae in ius vocari non potuit, exempta est, veluti parens et patronus ceteraeque personae: quae sententia mihi videtur verior. et sane si deliquit qui vocat, non deliquit qui exemit.
1 Ulpianus, On the Edict, Book V. The Prætor published this Edict to restrain by the fear of punishment those who rescue by violence persons who have been summoned to court. 1And then Pomponius has stated that where a slave commits an offence, a noxal action should be granted unless he committed it with the knowledge of his master; for in this instance the master must defend the action without being permitted to surrender the slave. 2Ofilius is of the opinion that the provisions of the Edict do not apply where the person summoned to court is exempt; as for example, a father, a patron, and the other persons above enumerated. This opinion seems to me to be correct; for, indeed, if he who summoned him was guilty of an illegal act, he who liberated him was not.
2 Paulus libro quarto ad edictum. Nam cum uterque contra edictum faciat, et libertus qui patronum vocat, et is qui patronum vi eximat: deteriore tamen loco libertus est, qui in simili delicto petitoris partes sustinet. 1Eadem aequitas est in eo, qui alio quam quo debuerat in ius vocabatur: sed et fortius dicendum est non videri vi eximi eum, cui sit ius ibi non conveniri.
2 Paulus, On the Edict, Book IV. For although both parties, the freedman who summoned his patron, and he who liberated him by force, violated the Edict, the condition of the freedman is made worse; because, in an action of this kind he takes the part of plaintiff. 1The same equitable reason applies to a party who is summoned to a place other than the one to which he should have been summoned. It can, however, be stated more positively that he who had the right to refuse to appear is not held to have been liberated by force.
3 Ulpianus libro quinto ad edictum. Quod si servum quis exemit in ius vocatum, Pedius putat cessare edictum, quoniam non fuit persona, quae in ius vocari potuit. quid ergo? ad exhibendum erit agendum. 1Si quis ad pedaneum iudicem vocatum quem eximat, poena eius edicti cessabit. 2Quod praetor praecepit ‘vi eximat’: vi an et dolo malo? sufficit vi, quamvis dolus malus cesset.
3 Ulpianus, On the Edict, Book V. When anyone rescues a slave who has been summoned to court, Pedius thinks that the Edict is not applicable; since the slave is not a person who can be summoned. What then shall be done? Proceedings must be instituted to produce him. 1Where anyone liberates a party summoned before a judge of inferior jurisdiction the penalty of the Edict shall not be imposed. 2Where the Prætor states “He released him by force”; does this mean that the act was committed merely with violence, or with malice also? It is sufficient if the act be perpetrated with violence, even though malice does not exist.
4 Paulus libro quarto ad edictum. Sed eximendi verbum generale est, ut Pomponius ait. eripere enim est de manibus auferre per raptum: eximere quoquo modo auferre. ut puta si quis non rapuerit quem, sed moram fecerit quo minus in ius veniret, ut actionis dies exiret vel res tempore amitteretur: videbitur exemisse, quamvis corpus non exemerit. sed et si eo loci retinuerit, non abduxit, his verbis tenetur. 1Item si quis eum, qui per calumniam vocabatur, exemerit: constat eum hoc edicto teneri. 2Praetor ait ‘neve faciat dolo malo, quo magis eximeretur’: nam potest sine dolo malo id fieri, veluti cum iusta causa est exemptionis.
4 Paulus, On the Edict, Book IV. The term “liberate” is one of general application, as Pomponius says for to “carry off” is to remove by seizure with the hands; but to “liberate” can be done in any way whatsoever; as for example, if anyone does not remove a party by force, but causes delay to prevent him appearing in court, so that the day set for bringing the action goes by, or the property in question is lost by lapse of time, he is held to have liberated him; even though he did not do so bodily. But, if he retained him in some place, and did not abduct him, he is liable under the provisions of the Edict. 1Again, if anyone liberates a party who has been summoned for the purpose of annoyance, he is considered to be liable under the Edict. 2The Prætor says: “He must not act maliciously to enable him to be released”; for this can be done without malice when there is good cause for liberation.
5 Ulpianus libro quinto ad edictum. Si per alium quis exemerit, hac clausula tenetur, sive praesens fuit sive absens. 1In eum autem, qui vi exemit, in factum iudicium datur: quo non id continetur quod in veritate est, sed quanti ea res est ab actore aestimata, de qua controversia est. hoc enim additum est, ut appareat etiam si calumniator quis sit, tamen hanc poenam eum persequi. 2Docere autem debet quis per hanc exemptionem factum quo minus in ius produceretur. ceterum si nihilo minus productus est, cessat poena: quoniam verba cum effectu sunt accipienda. 3Hoc iudicium in factum est: et si plures deliquerint in singulos dabitur, et nihilo minus manet qui exemptus est obligatus: 4Heredibus autem ita dabitur, si eorum intersit: neque autem in heredem neque post annum dabitur.
5 Ulpianus, On the Edict, Book V. Where anyone has effected a rescue through the agency of another, he is liable under this clause, whether he was present or absent. 1An action is granted against anyone who has liberated a party by force, and the amount of damages is not based upon what was actually lost, but the value of the property in dispute is fixed by the plaintiff; and this provision was added, so that it might be apparent that if he brought action without proper grounds, he could still recover this penalty. 2The plaintiff must also show that the rescue which was made prevented the defendant from appearing in court, but if he was nevertheless produced, the penalty cannot be imposed, since the words are only applicable where some act was performed. 3The action is in factum, and is of such a character that where several have committed a wrong it can be brought against each one of them; and the party who was liberated will still remain liable. 4The right of action is also granted to heirs if they have any interest in making use of it; it is, however, not granted against an heir, or after the expiration of a year.
6 Idem libro trigensimo quinto ad edictum. Is qui debitorem vi exemit, si solverit, reum non liberat, quia poenam suam solvit.
6 The Same, On the Edict, Book XXXV. If he who has released a debtor by force makes payment, he does not exempt the latter from liability, because he pays the penalty of his own act.