Si ex noxali causa agatur, quemadmodum caveatur
(In What Way Security Must Be Given in a Noxal Action.)
1 Ulpianus libro septimo ad edictum. Si quis eum, de quo noxalis actio est, iudicio sisti promisit, praetor ait in eadem causa eum exhibere, in qua tunc est, donec iudicium accipiatur. 1‘In eadem causa’ quid sit, videamus: et puto verius eum videri in eadem causa sistere, qui ad experiendum non facit ius actoris deterius. si desinat servus esse promissoris vel actio amissa sit, non videri in eadem causa statum Labeo ait: vel si qui pari loco erat in litigando, coepit esse in duriore, vel loco vel persona mutata: itaque si quis ei qui in foro promissoris conveniri non potest venditus aut potentiori datus sit, magis esse putat, ut non videatur in eadem causa sisti. sed et si noxae deditus sit, Ofilius non putat in eadem causa sisti, cum noxae deditione ceteris noxalem actionem peremi putat.
1 Ulpianus, On the Edict, Book VII. Where anyone has promised that a slave on whose account a noxal action is brought, shall be produced in court, the Prætor says “that he must produce him in the same condition in which he was at the time when legal proceedings were instituted”. 1Let us consider what the words “in the same condition” mean. I think, in fact, that he is in the same condition who does not do anything to prejudice the case of the party who brings the suit. Labeo states that if the slave should cease to belong to the party who makes the promise, or the right of action should be lost, he would not be in the same condition; just as where a party was in as good a condition as his adversary, so far as litigation is concerned, is placed; in a word, one on account of either the place, or the party being changed. Therefore, where a slave is sold to someone who cannot be sued in the same court as the party making the promise, or is delivered to someone who is more powerful, he thinks that he cannot be produced in court in the same condition. Where, however, he is surrendered in satisfaction for damage which he has committed, Ofilius thinks that he cannot be produced in the same condition; as, by his surrender for this purpose, he is of the opinion that all noxal actions instituted by others are barred.
2 Paulus libro sexto ad edictum. Sed alio iure utimur. nam ex praecedentibus causis non liberatur noxae deditus: perinde enim noxa caput sequitur, ac si venisset. 1Si absens sit servus, pro quo noxalis actio alicui competit: si quidem dominus non negat in sua potestate esse, compellendum putat vindius vel iudicio eum sisti promittere vel iudicium accipere, aut, si nolit defendere, cauturum, cum primum potuerit, se exhibiturum: sin vero falso neget in sua potestate esse, suscepturum iudicium sine noxae deditione. idque Iulianus scribit et si dolo fecerit, quominus in eius esset potestate. sed si servus praesens est, dominus abest nec quisquam servum defendit, ducendus erit iussu praetoris: sed causa cognita domino postea dabitur defensio, ut Pomponius et vindius scribunt, ne ei absentia sua noceat: ergo et actori actio restituenda est, perempta eo quod ductus servus in bonis eius esse coepit.
2 Paulus, On the Edict, Book VI. We, however, adopt a different rule; for when a slave is surrendered in satisfaction of damages, the right of action is not extinguished on account of any of the reasons previously stated; for the action always follows the slave, just as if he had put in an appearance in the first place. 1Where the slave, on account of whom a noxal action can be instituted by anyone, is absent, and where his master does not deny that he is under his control, Vindius holds that he can be compelled to promise to produce him in court, or to defend him, and if he is unwilling to do this, he must give security to produce him as soon as possible; but if he falsely denies that he is under his control, he will be compelled to defend the suit without the surrender of the slave; and Julianus stated this also, even where the master contrived by fraud that the slave should not be under his control. If the slave is present, and the master is absent, and there is no one to defend the slave, he should be removed by the order of the Prætor, but if proper cause be shown, his defense can afterwards be conceded to his master, as Pomponius and Vindius state; nor will the master be prejudiced by his absence. Therefore, the right of action which the plaintiff lost because when the slave was taken away he became his property, can be restored to him.
3 Ulpianus libro septimo ad edictum. Si cum usufructuario noxali iudicio agetur isque servum non defenderit, denegatur ei per praetorem usus fructus persecutio.
3 Ulpianus, On the Edict, Book VII. Where a noxal action is brought against a person who has only the usufruct in a slave, and he refuses to defend him, the right to bring suit for the recovery of the usufruct shall be denied him by the Prætor.
4 Gaius libro sexto ad edictum provinciale. Si cum uno ex dominis noxalis agetur, an pro parte socii satisdare deberet? Sabinus ait non debere: quia quodammodo totum suum hominem defenderet, cui in solidum defendendi necessitas esset, nec auditur, si pro parte paratus sit defendere.
4 Gaius, On the Provincial Edict, Book VI. Where anyone brings a noxal action against one of two owners of a slave, the question arose whether he shall be obliged to give security with respect to the share of his fellow owner? Sabinus says that he is not obliged to do so because he is defending his own slave, just as if he was wholly his own property; since he is obliged to defend the entire interest, and he shall not be heard if he is prepared to defend only his own share.
5 Ulpianus libro quadragensimo septimo ad Sabinum. Si servum in eadem causa sistere quidam promiserit et liber factus sistatur: si de ipso controversia est capitalium actionum iniuriarumque nomine, non recte sistitur: quia aliter de servo supplicium et verberibus de iniuria satisfit, aliter de libero vindicta sumitur vel condemnatio pecuniaria. quod autem ad ceteras noxales causas pertinet, etiam in meliorem causam videtur pervenisse.
5 Ulpianus, On Sabinus, Book XLVII. Where a party has promised to produce a slave in court in the same condition, and he is produced after having been set free; if a capital offence, or one implying the commission of injury is involved, he is not properly produced; because one kind of punishment is inflicted on slaves by lashes in the case of injury, and another is inflicted upon a freeman, as, for instance, a pecuniary fine. So far, however, as other noxal actions are concerned, he is held to be in a better condition.
6 Paulus libro undecimo ad Sabinum. Sed si statu liberum sisti promissum sit, in eadem causa sisti videtur, quamvis liber sistatur, quod implicitus ei casus libertatis fuerit.
6 Paulus, On Sabinus, Book XI. Where, however, it was promised to produce a slave who is about to become free, he is held to be in the same condition, even though he may be free when he appears; because the attainment of his freedom was tacitly understood.