De noxalibus actionibus
(Concerning noxal actions.)
1 Gaius libro secundo ad edictum provinciale. Noxales actiones appellantur, quae non ex contractu, sed ex noxa atque maleficio servorum adversus nos instituuntur: quarum actionum vis et potestas haec est, ut, si damnati fuerimus, liceat nobis deditione ipsius corporis quod deliquerit evitare litis aestimationem.
1 Gaius, On the Provincial Edict, Book II. Those actions are called noxal which are brought against us, not with reference to any contract, but as the result of some injury or delinquency committed by slaves; and the force and effect of such actions is that, if judgment is rendered against us, we can avoid the payment of damages by the surrender of the body of him who committed the offence.
2 Ulpianus libro octavo decimo ad edictum. Si servus sciente domino occidit, in solidum dominum obligat, ipse enim videtur dominus occidisse: si autem insciente, noxalis est, nec enim debuit ex maleficio servi in plus teneri, quam ut noxae eum dedat. 1Is qui non prohibuit, sive dominus manet sive desiit esse dominus, hac actione tenetur: sufficit enim, si eo tempore dominus, quo non prohibeat, fuit, in tantum, ut Celsus putet, si fuerit alienatus servus in totum vel in partem vel manumissus, noxam caput non sequi: nam servum nihil deliquisse, qui domino iubenti obtemperavit. et sane si iussit, potest hoc dici: si autem non prohibuit, quemadmodum factum servi excusabimus? Celsus tamen differentiam facit inter legem Aquiliam et legem duodecim tabularum: nam in lege antiqua, si servus sciente domino furtum fecit vel aliam noxam commisit, servi nomine actio est noxalis nec dominus suo nomine tenetur, at in lege Aquilia, inquit, dominus suo nomine tenetur, non servi. utriusque legis reddit rationem, duodecim tabularum, quasi voluerit servos dominis in hac re non obtemperare, Aquiliae, quasi ignoverit servo, qui domino paruit, periturus si non fecisset. sed si placeat, quod Iulianus libro octagensimo sexto scribit ‘si servus furtum faxit noxiamve nocuit’ etiam ad posteriores leges pertinere, poterit dici etiam servi nomine cum domino agi posse noxali iudicio, ut quod detur Aquilia adversus dominum, non servum excuset, sed dominum oneret. nos autem secundum Iulianum probavimus, quae sententia habet rationem et a Marcello apud Iulianum probatur.
2 Ulpianus, On the Edict, Book XVIII. Where a slave kills anyone with the knowledge of his owner, he renders the latter liable for the full amount of damages, for it is held that the owner himself committed the homicide; but where this was done without the owner’s knowledge, a noxal action will lie, as the owner should not be held liable, on account of the offence of the slave, for any more than to surrender him by way of reparation. 1Where he did nothing to prevent the crime, whether he remains the owner or ceases to be such, he will be liable to this action; for it is sufficient if he was the owner at the time when he did not prevent the act; and to such an extent is this the case, that Celsus thinks if the slave should be alienated in whole or in part or manumitted, the damage does not follow the person, for the slave did not commit any offence, as he obeyed his owner’s orders. And this may be truly said, if the latter did order him, but if he only did not prevent him, how can we excuse the act of the slave? Celsus, however, makes a distinction between the Lex Aquilia and the Law of the Twelve Tables, for, under the ancient law, if a slave committed a theft or caused any other damage with the knowledge of his owner, a noxal action would lie on account of the slave, and the owner would not be directly liable; but he says that under the Lex Aquilia the owner would be directly liable, and not liable on account of the slave. He then states the principle of each of the two laws; the intention of that of the Twelve Tables being that, in an instance of this kind, slaves should not obey their masters, but in the case of the Lex Aquilia the law excused a slave who obeyed his master, as he would have been put to death if he had not done so. But if we consider as established what Julianus states in the Eighty-sixth Book, that, “Where a slave commits a theft or causes some injury,” this has also reference to more recent laws; it may be said that a noxal action can be granted against the owner on account of his slave; so that because an Aquilian action is granted against the owner this does not excuse the slave, but is a burden to the owner. We approve of the opinion of Julianus, which is reasonable, and is supported by Marcellus as is stated by Julianus.
3 Idem libro tertio ad edictum. In omnibus noxalibus actionibus, ubicumque scientia exigitur domini, sic accipienda est, si, cum prohibere posset, non prohibuit: aliud est enim auctorem esse servo delinquenti, aliud pati delinquere.
3 The Same, On the Edict, Book III. In all noxal actions where the knowledge of the owner is required, this must be understood to mean that the owner could have been able to prevent the wrong but did not do so; for it is one thing to cause a slave to commit an offence, and another to suffer him to do so.
4 Paulus libro tertio ad edictum. In delictis servorum scientia domini quemadmodum accipienda est? utrum cum consilio? an et si viderit tantum, quamvis prohibere non potuerit? quid enim si ad libertatem proclamans domino sciente faciat aut qui contemnat dominum? vel cum trans flumen sit servus, vidente quidem, sed invito domino noxiam noceat? rectius itaque dicitur scientiam eius accipiendam, qui prohibere potest: et hoc in toto edicto intellegendum est circa scientiae verbum. 1Si extraneus servus sciente me fecerit eumque redemero, noxalis actio in me dabitur, quia non videtur domino sciente fecisse, cum eo tempore dominus non fuerim. 2Cum dominus ob scientiam teneatur, an servi quoque nomine danda sit actio, videndum est: nisi forte praetor unam poenam a domino exigi voluit. ergo dolus servi impunitus erit? quod est iniquum: immo utroque modo dominus tenebitur, una autem poena exacta, quam actor elegerit, altera tollitur. 3Si detracta noxae deditione quasi cum conscio domino actum sit, qui non erat conscius: absolutione facta et finito iudicio amplius agendo cum noxae deditione exceptione rei iudicatae summovebitur, quia res in superius iudicium deducta et finita est. donec autem prius iudicium agitatur, licentia agenti est, si eum de scientia domini arguenda paeniteat, tunc ad noxalem causam transire. contra quoque si cum eo qui scit cum noxae deditione actum sit, amplius in dominum detracta noxae deditione danda actio non est: in ipso autem iudicio si voluerit et scientiam domini arguere, non est prohibendus.
4 Paulus, On the Edict, Book III. With reference to the offences of slaves what are we to understand by the “Knowledge of the owner”? Does it mean that the act was done by his advice, or that he merely saw it done, although he could not prevent it? For suppose that a slave who was taking measures to obtain his freedom commits the act, with the knowledge of his owner, or pays no attention to his owner; or suppose that the slave is on the opposite side of a river and commits an injury while his master sees him, but does it contrary to his will? It is better, however, to say that we must understand the term “knowledge” to signify that a party is able to prevent the deed, and this must be understood through the entire Edict so far as the term “knowledge” is concerned. 1Where a slave belonging to a stranger commits an illegal act with my knowledge, and I purchase him; a noxal action will be granted against me, because it cannot be held that he acted with the knowledge of his owner as at that time I was not his owner. 2Where an owner is liable on account of his knowledge, it should be considered whether an action should be granted also with reference to the slave; unless the Prætor intended that a single penalty only should be exacted from the owner. Therefore should the malice of the slave be unpunished? This would be unjust, for indeed the owner is liable in both ways, still when one penalty, that is, whichever one the plaintiff selects, is exacted, the other cannot be collected. 3If the surrender of the slave by way of reparation is not mentioned, and proceedings are brought against the owner on account of his being aware of the offence, when, as a matter of fact, he was not aware of it, and the case is dismissed and the trial terminated; the plaintiff will be barred by an exception on the ground of res judicata, if he attempts to proceed further in order to obtain the surrender of the slave; for the reason that the matter was previously brought to an issue in the former trial and is now at an end. But, while the first trial is proceeding, the plaintiff has the right to change his mind, if he is attempting to prove the knowledge of the owner, and have recourse to a noxal action. On the other hand also, if he has proceeded with the noxal action against the party who had knowledge, no other action will be granted him against the owner if he left out the surrender of the slave by way of reparation; but if, during the trial, he still wishes to prove the knowledge of the owner, he cannot be prevented from doing so.
5 Ulpianus libro tertio ad edictum. Si plurium servus deliquerit omnibus ignorantibus, noxale iudicium in quemvis dabitur: sed si omnibus scientibus, quivis eorum tenebitur detracta noxae deditione, quemadmodum si plures deliquissent, nec altero convento alter liberabitur: sed si alter scit, alter ignoravit, qui scit detracta noxae deditione convenitur, qui nescit, cum noxae deditione. 1Differentia autem harum actionum non solum illa est, quod qui scit in solidum tenetur, verum illa quoque, quod, sive alienaverit servum qui scit sive manumiserit sive decesserit servus, dominus tenetur: sed si ipse dominus decesserit, heres eius non tenetur.
5 Ulpianus, On the Edict, Book V. Where a slave belonging to several persons commits an offence of which they are all ignorant, a noxal action will be granted against any one of them. But if they were all aware of it, any one of them will be liable without consideration of the surrender of the slave by way of reparation, just as if they had all committed the offence; nor will one of them be liberated if the other should be sued. Still, where one of the owners knew and the other was ignorant of the fact, the one who knew will be sued without the surrender of the slave being considered, and the one who did not know will be sued with the right to surrender him. 1The difference between these two proceedings is not merely that the owner who knows is liable for the entire amount, but also that if he who knows should sell the slave or manumit him, and the slave should die, the said owner will be liable; but if the owner himself should die, his heir will not be liable.
6 Idem libro octavo decimo ad edictum. Sed et ipse servus manumissus tenetur.
6 The Same, On the Edict, Book XVIII. But the slave himself, if manumitted, will also be liable.
7 Idem libro tertio ad edictum. Noxalis autem non alias datur, nisi apud me sit servus: et si apud me sit, licet eo tempore non fuit, quo delinquebat, teneor, et heres meus tenetur, si noxius vivat. 1Pomponius ait, si emptor servi noxali conventus sit, venditorem, quo sciente factum est, conveniri iam non posse.
7 The Same, On the Edict, Book III. A noxal action, however, is not granted unless the slave is under my control, and if he is, although he was not under my control at the time he committed the offence, I will be liable, and my heir will be liable, if the offending slave was living. 1Pomponius says that if a purchaser of the slave is sued in a noxal action, the vendor who had knowledge of the act can no longer be sued.
8 Idem libro trigensimo septimo ad edictum. Si servus communis furtum fecerit, quivis ex dominis in solidum noxali iudicio tenetur: eoque iure utimur. sed non alias poterit is qui conventus est evadere litis aestimationem, nisi in solidum noxae dederit servum, nec ferendus est, si partem dedere fuerit paratus. plane si propter hoc, quod socii dedere parati non fuerint, in solidum fuerit condemnatus, communi dividundo vel familiae erciscundae iudicio adversus eos experietur. ante noxale sane iudicium acceptum poterit sua parte cedendo securitatem consequi, ne necesse habeat suscipere iudicium: quamquam quis possit dicere evenire, ut, dum pars eive data amittat actionem: dominus enim pro parte factus non potest cum socio noxali experiri. fortassis nec communi dividundo agere possit eius maleficii nomine, quod ante communionem admissum est: quod si non potest, evidenti iniuria adficietur. sed melius est dicere, competere ei communi dividundo iudicium.
8 The Same, On the Edict, Book XXXVII. Where a slave owned in common commits a theft, any one of his masters is liable to a noxal action for the entire amount, and this is the rule at the present time. But the party against whom suit is brought cannot avoid payment of the damages unless he surrenders the slave entirely; for if he should be ready to surrender only a share in him, this will not be tolerated. It is evident that if, on account of this, the other owners are not prepared to surrender the slave, he should then be required to pay the entire amount, and he can institute proceedings against the other owner in partition, or for a division of the interest in the slave. He can, however, before issue is joined in the noxal action, obtain immunity by surrendering his share in the slave so that it will not be necessary for him to make a defence; although someone may state that it might happen where a share in said slave is transferred to the party he loses his right of action; for when he becomes the owner of a share he cannot institute proceedings against a joint-owner by means of a noxal action; and perhaps he could not bring an action in partition on account of an offence which was committed before the joint-ownership began, and if he cannot do this he will evidently suffer injury. It, however, seems to me best to hold that an action for the division of common property will lie in his favor.
9 Paulus libro trigensimo nono ad edictum. Si communis familia vel communis servus furtum fecerit altero ex dominis sciente, is qui scit omnium nomine tenebitur et conventus alterum quoque liberat nec a socio quicquam debebit consequi: sui enim facti nomine poenam meruit. quod si is qui ignoravit duplum praestiterit, a socio simplum consequetur.
9 Paulus, On the Edict, Book XXXIX. Where a number of slaves held in common, or one alone commits a theft, with the knowledge of one of his owners the latter will be liable in the name of both, and if suit is brought against him this will release the others from liability; nor can he obtain anything from his joint-owner, as he deserved the penalty on account of his own act. But where one who was ignorant of the commission of the offence pays double damages, he can recover simple damages from his joint-owner.
10 Idem libro vicensimo secundo ad edictum. Sed et eo nomine agere cum socio poterit, quod servum communem deteriorem fecit, quemadmodum cum quolibet alio, qui rem communem deteriorem fecisset. ceterum si nihil praeterea post noxae deditionem commune habebit, pro socio vel, si socii non fuerunt, in factum agi poterit.
10 The Same, On the Edict, Book XXII. Moreover, anyone can bring suit against his joint-owner on the ground that he has depreciated the value of the slave; just as he could against anyone else who depreciated the value of property owned in common. If, however, he held nothing in common after the surrender of the slave, he can bring an action on partnership, or if they were not partners he can bring an action in factum.
11 Ulpianus libro septimo ad edictum. Bona fide servi possessor eius nomine furti actione tenebitur, dominus non tenetur. sed noxae dedendo non facit quidem actoris: cum autem coeperit istum servum dominus vindicare, doli exceptione summovebitur vel officio iudicis consequetur, ut indemnis maneat.
11 Ulpianus, On the Edict, Book VII. The bona fide possessor of a slave will be liable to an action for theft on account of the slave, but the owner will not be liable. He cannot, however, by surrendering the slave make him the property of the plaintiff, and if the owner should bring suit to recover the slave, he will be barred by an exception on the ground of fraud, for the other party can be made secure by application to the court.
12 Paulus libro sexto ad edictum. Si bona fide possessor eum servum, quem bona fide possidebat, dimiserit, ne agi cum eo ex noxali causa possit, obligari eum actione, quae datur adversus eos, qui servum in potestate habeant aut dolo fecerint, quo minus haberent, quia per hoc adhuc possidere videntur.
12 Paulus, On the Edict, Book VI. Where a bona fide possessor dismisses a slave who was in his possession under these circumstances, in order to avoid proceedings being taken against him in a noxal action, he will be liable to the action which is granted against parties who have a slave in their power or commit fraud in order to avoid having him under their control, because in this instance they are held to be still in possession.
13 Gaius libro tertio decimo ad edictum provinciale. Non solum adversus bona fide possessorem, sed etiam adversus eos qui mala fide possident noxalis actio datur: nam et absurdum videtur eos quidem qui bona fide possiderent excipere actionem, praedones vero securos esse.
13 Gaius, On the Provincial Edict, Book XIII. A noxal action is granted not only against a possessor in good faith, but also against those who have possession in bad faith; for it seems absurd that parties who are bona fide possessors should be compelled to defend an action, and that depredators should be secure.
14 Ulpianus libro octavo decimo ad edictum. Si quis a multis conveniatur ex noxa eiusdem servi, vel si ab uno, ex pluribus tamen delictis, non necesse habet, quia omnibus dedere non potest, litis aestimationem offerre his, quibus dedere non potest. quid ergo est, si a pluribus conveniatur? si quidem unus occupavit, an melior sit condicio, ut ipsi soli dedatur? an vero vel omnibus dedi debeat vel cavere debeat defensu iri adversus ceteros? et verius est occupantis meliorem esse condicionem. ei itaque dedetur non qui prior egit, sed qui prior ad sententiam pervenit: et ideo ei, qui postea vicerit, actionem denegari iudicati. 1Sed et si statuliber sit et ante deditionem exstiterit condicio vel fideicommissa libertas fuerit ante praestita vel existente condicione legati dominium fuerit translatum, arbitrio iudicis absolvi eum oportet: et officii iudicis hoc quoque erit, ut caveatur ei cui deditur ob evictionem ob suum factum contingentem.
14 Ulpianus, On the Edict, Book XVIII. Where anyone is sued by several persons on account of an offence committed by his slave, or by one person on account of several offences, then it will not be necessary for him to tender the amount of damages assessed to those to whom he cannot surrender the slave, since he cannot surrender him to all of them. What then is the rule if he is sued by several parties? If, indeed, one of them has anticipated the others, is his position better, and shall the slave be surrendered to him alone? Or shall he be surrendered to all of them, or must the defendant furnish security that he will defend his adversary against the other parties? It is the better opinion that the position of the party who has anticipated the others is preferable. Therefore the slave should be surrendered, not to the plaintiff who first instituted proceedings, but to the one who first obtained judgment; and hence an action to enforce the judgment will be refused to a party who gains his case subsequently. 1If a slave is entitled to his freedom conditionally, and the condition is fulfilled before the surrender; or if he should obtain his freedom under the terms of a trust, or a condition is complied with in accordance with which the ownership of the slave was bequeathed as a legacy and transferred, the defendant must be discharged by an order of court; and it is part of the duty of the judge to provide that the party to whom he is surrendered shall give security against the recovery of the slave by eviction on account of an act of the defendant.
15 Gaius libro sexto ad edictum provinciale. Praetor decernere debet translationem iudicii in statuliberum fieri: si vero rei iudicandae tempore adhuc in suspenso sit statuta libertas, Sabinus et Cassius liberari heredem putant tradendo servum, quia toto suo iure cederet: quod et verum est.
15 Gaius, On the Provincial Edict, Book VI. The Prætor should order the action to be transferred so as to be conducted against the said former slave, but if, at the time of the trial, the freedom of the slave is still in suspense, Sabinus and Cassius are of the opinion that the heir is released from liability by giving up the slave, since he has thereby assigned all of his own rights; and this is true.
16 Iulianus libro vicensimo secundo digestorum. Si heres dolo malo fecerit, ne statuliberum in potestate haberet, et propter hoc iudicium sine noxae deditione acceperit: et impleta condicione statutae libertatis condemnari debebit, sicuti mortuo servo condemnaretur.
16 Julianus, Digest, Book XXII. If the heir, through malicious fraud, should relinquish his authority over said slave, and by reason of this should join issue in an action not permitting the noxal surrender of the slave, judgment should be rendered against him, just as if the slave was dead; even if the condition on which the slave was entitled to his freedom should have been fulfilled.
17 Paulus libro vicensimo secundo ad edictum. Si ex duobus dominis uno sciente, altero ignorante servus deliquit, si ante cum altero qui nesciebat actum sit et noxae dediderit servum, iniquum est vilissimi hominis deditione alterum quoque liberari: igitur agetur et cum altero, et si quid amplius est in damni persecutione, consequetur computato pretio hominis noxae dediti. ipsi tamen inter se sic debent pensare communi dividundo iudicium, ut, si ille quo sciente fecit praestiterit, non totius partem ferat, sed partem eius, quanti servus est: sic et si alter aliquid praestiterit, eius partem fieri. illud iniquum est eum, qui iussit servum facere, consequi aliquid a socio, cum ex suo delicto damnum patiatur. 1Si plures eiusdem servi nomine noxali mecum agere velint vel si unus pluribus iudiciis eiusdem servi nomine agat, in quo usus fructus tuus, proprietas mea sit, officio iudicis continebitur, cum eum noxae dedero, ut etiam usum fructum actoris faciam: sed per praetorem id consequar ego dominus proprietatis, ut aut cogat praetor te pro aestimatione usus fructus conferre ad litis aestimationem aut usu fructu cedere, si hoc expediat. et si ego dominus proprietatis eum servum nolui defendere, defensio tibi permittenda est, et si damnatus hominem tradas, et adversus me tueris.
17 Paulus, On the Edict, Book XXII. Where a slave who belongs to two owners commits an offence with the knowledge of one of them but without that of the other, if suit is brought against the one who is ignorant of the fact and he surrenders the slave by way of reparation, it is unjust that by the surrender of a worthless slave the other owner should be free from liability; hence suit can be brought against the latter also, and if in the attempt to collect damages anything more is obtained, the plaintiff will be entitled to it after calculation of the value of the slave surrendered has been made. The joint-owners, however, should divide their claims in an action for the division of common property in such a way that if the one who had knowledge of the act should make payment, he will not be entitled to a portion of all of it, but to a portion of the amount that the slave was worth; and if the other paid anything, he will be entitled to credit for his share. It is not just that the owner who ordered the slave to commit the offence should obtain anything from his fellow-owner, since the loss that he sustains is the result of his own misconduct. 1Where several persons wish to bring a noxal action against me on account of the same slave, or one party brings suit in several actions with reference to the same slave, he being one in whom you have an usufruct and I the mere ownership, it is part of the duty of the judge, when I surrender the slave by way of reparation, to provide that I transfer to the plaintiff the usufruct in him also; but I, as the mere proprietor, can apply to the Prætor to have him compel you to contribute to the estimated damages in proportion to the value of the usufruct, or to assign the usufruct, if this is more expedient. But if I, the mere owner, refuse to defend the action brought with reference to the slave, you should be permitted to defend it, and if, having lost it, you deliver the slave, you will be protected against me.
18 Pomponius libro octavo decimo ad Sabinum. Is qui usum fructum in servo habet, perinde cum domino habet actionem furti, atque si quilibet alius esset: sed cum eo non est, quamvis serviat ei, et ideo dominus damnatus fructuario noxae dedens [ed. maior liberatur] <ed. minor liberabitur>.
18 Pomponius, On Sabinus, Book XVIII. A party who has an usufruct in a slave has for this reason a right of action for theft against the mere owner, just as if he were any other person, but no right of action exists against him although the slave is in his service; and therefore, if judgment is rendered against the owner, he will be discharged from liability by surrendering the slave to the usufructuary.
19 Paulus libro vicensimo secundo ad edictum. Si in re communi mea et tua damnum nobis dederit Titii servus, si cum eo agemus, erit noxali Aquiliae actioni locus, ne damnatus in solidum singulis noxae dedere cogatur. sed potest dici, quasi unius damnum sit et una obligatio, aut utrisque pecuniam sufferendam aut officio iudicis simul utrisque noxae dedendum: sed et si alterutri nostrum in solidum noxae deditus fuerit et ob id ab utroque dominus sit absolutus, recte dicitur eum, cui noxae deditus sit, alteri teneri communi dividundo iudicio, ut communicet servum noxae sibi deditum, cum ob rem communem aliquid ad socium pervenerit. 1Si servi, in quo usus fructus alienus est, dominus proprietatis operas conduxerit, verba efficiunt, ut cum noxae deditione damnetur. 2Si servus tuus navem exercuerit eiusque vicarius et idem nauta in eadem nave damnum dederit, perinde in te actio danda est ac si is exercitor liber et hic vicarius servus eius esset, ut de peculio servi tui ad noxam dedere vicarium damneris: ut tamen, si servi tui iussu vel sciente et patiente eo damnum vicarius dederit, noxalis actio servi tui nomine esse debeat. idemque sit etiam, si nautam facere iusserit.
19 Paulus, On the Edict, Book XXII. Where a slave of Titius does some damage to property owned by you and me in common, and we institute proceedings against Titius, a noxal action under the Lex Aquilia will lie; and if he loses the suit he will be compelled to surrender the entire slave to us separately. It may be stated, however, as in the case where both the damage and the claim for it are acquired by one person alone, either the money should be tendered to both of us, or the slave be surrendered to both of us at the same time by order of court. Nevertheless, if the slave is surrendered to either of us without division of ownership, and on this account the owner is released from liability to both of us, it is very properly held that he to whom a surrender was made is liable to the other in an action for the division of common property, to compel him to transfer a share of the slave that was surrendered, since this is something which has come into the hands of the joint-owner through property held in common. 1Where the mere owner of a slave leases the services of the latter in whom someone else has the usufruct, the words of the Edict indicate that if judgment is rendered against him he will have the choice of surrendering the slave by way of reparation. 2Where your slave has charge of a ship, and his underslave, who is also a sailor on said ship, causes some damage, an action should be granted against you, just as if the party in charge was free, and the slave belonged to him; so that you will be ordered by the court to surrender the said slave by way of reparation as part of the peculium of your slave; although if the second slave committed the damage by order of your slave or with his knowledge and sufferance, a noxal action should be brought against you on account of your slave. The result will be the same if your slave should order a sailor to commit the act.
20 Gaius libro septimo ad edictum provinciale. Qui ex pluribus noxis diversis temporibus experitur, ex una noxia servi dominium nanctus nullam amplius actionem habet adversus eum, qui dominus fuerat, cum actio noxalis caput sequatur: at si maluit dominus priori iudicio litis aestimationem sufferre, vel eidem vel alii ex alio maleficio agenti nihilo minus tenetur.
20 Gaius, On the Provincial Edict, Book VII. Where anyone brings several actions at different times, on account of distinct offences, and he obtains ownership of the slave on account of one of said offences, he will not be entitled to any other action against the party who was formerly the owner, since a noxal action follows the individual; but, if the owner at the time the former case was tried, preferred to pay the damages assessed, he will, nevertheless, be liable to the same plaintiff, or to anyone else, if he brings suit on the ground of some other wrong.
21 Ulpianus libro vicensimo tertio ad edictum. Quotiens dominus ex noxali causa convenitur, si nolit suscipere iudicium, in ea causa res est, ut debeat noxae dedere eum, cuius nomine iudicium non suscipitur: aut si id non faciat, iudicium suscipiet omnimodo, sed non alias condemnabitur, quam si in potestate habeat dolove malo fecerit, quo minus haberet. 1Eos, quorum nomine noxali iudicio agitur, etiam absentes defendi posse placuit, sed hoc ita demum, si proprii sint servi: nam si alieni, praesentes esse oportet, aut si dubitetur, utrum proprii sint an alieni. quod ita puto accipiendum, ut si constet vel bona fide servire, etiam absentes possint defendi. 2Praetor ait: ‘Si is in cuius potestate esse dicetur negabit se in sua potestate servum habere: utrum actor volet, vel deierare iubebo in potestate sua non esse neque se dolo malo fecisse, quo minus esset, vel iudicium dabo sine noxae deditione.’ 3‘In potestate’ sic accipere debemus, ut facultatem et potestatem exhibendi eius habeat: ceterum si in fuga sit vel peregre, non videbitur esse in potestate. 4Quod si reus iurare nolit, similis est ei, qui neque defendit absentem neque exhibet: qui condemnantur quasi contumaces. 5Si tutor vel curator extent, ipsi iurare debent in potestate domini non esse: si autem procurator sit, dominus ipse iuret necesse est. 6Si iusiurandum exegit actor reusque iuravit, deinde postea noxali velit actor experiri, videndum est, an exceptio iurisiurandi debeat adversus actorem dari. et Sabinus putat non esse dandam, quasi de alia re sit iuratum, hoc est tunc non fuisse in potestate: modo vero cum in potestate deprehendatur, de facto eius posse agi. Neratius quoque dicebat post exactum iusiurandum posse actorem detracta noxae deditione experiri, si modo hoc contendat, posteaquam iuratum est coepisse in potestate habere.
21 Ulpianus, On the Edict, Book XXIII. Whenever an owner is sued on the ground of damage committed, and does not wish to defend the action, he is in such a condition that he must surrender by way of reparation the slave on whose account he refuses to defend the suit, or, if he does not do so, he is absolutely obliged to make a defence; but judgment will not be rendered against him unless he has the slave in his power, or has managed to relinquish possession of him by fraud. 1Where proceedings are instituted by a noxal action on account of slaves, it is established that they can be defended even though they are absent, but this only shall be done where the said slaves belong to the defendant, for if they belong to another they must be present; and this is also the case where any doubt exists whether they are the property of the defendant or of another party. I think that this ought to be understood to be the rule if it is proved that they are serving the defendant merely as bona fide slaves, even if they are absent. 2The Prætor says, “If he in whose power the slave is said to be denies that he has him in his power, I shall either order him to swear that the slave is not in his power, or that he has not fraudulently maneged that he should not be, or I will grant an action without surrender by way of reparation, whichever the plaintiff desires.” 3We should understand the words “In his power” to mean that the defendant has the opportunity and the power to produce the slave; but if the latter should be a fugitive, or out of the country, he will not be held to be in his power. 4If the defendant refuses to make oath, his position is the same as that of a party who will neither defend an absent slave or produce him in court; and persons of this kind should have judgment rendered against them as being contumacious. 5Where there is a guardian or a curator, he must swear that the slave is not in the power of his owner; but where there is an agent, it is necessary for the owner himself to be sworn. 6Where the plaintiff has exacted an oath and the defendant has taken it, and afterwards the plaintiff desires to bring a noxal action, it should be considered whether an exception on the ground of “an oath taken” should not be granted against the plaintiff? Sabinus is of the opinion that it should not be granted, since the oath was taken with reference to a different matter; that is to say, the party swore that the slave was not in his power at the time, but now, since he is found to be in his power, suit can be brought on account of his act. Neratius, also, states that after the oath has been required, the plaintiff can proceed omitting the surrender by way of reparation, provided he claims that the defendant began to have the slave in his power only after he was sworn.
22 Paulus libro octavo decimo ad edictum. Si servus depositus vel commodatus sit, cum domino agi potest noxali actione: ei enim servire intellegitur et, quod ad hoc edictum attinet, in potestate eius est, maxime si copiam habeat reciperandi hominis. 1Is qui pignori accepit vel qui precario rogavit non tenetur noxali actione: licet enim iuste possideant, non tamen opinione domini possident: sed hos quoque in potestate domini intellegi, si facultatem repetendi eos dominus habeat. 2Quid est habere facultatem repetendi? habeat pecuniam, ex qua liberari potest: nam non debet cogi vendere res suas, ut solvat pecuniam et repetat servum. 3Dominus, qui servum in sua potestate esse confitetur, aut exhibere eum debet aut absentem defendere: quod nisi faciat, punitur atque si praesentem non noxae dederit. 4Si negavit dominus in sua potestate esse servum, permittit praetor actori arbitrium, utrum iureiurando id decidere an iudicium dictare sine noxae deditione velit, per quod vincet, si probaverit eum in potestate esse vel dolo eius factum, quo minus esset: qui autem non probaverit in potestate adversarii esse servum, rem amittit.
22 Paulus, On the Edict, Book XVIII. Where a slave is deposited with someone or loaned to him, a noxal action can be brought against the owner, for the slave is understood to still serve him, and as far as relates to this Edict, he is in his power; and especially is this the case if he has the means of recovering him. 1He who has received a slave in pledge or holds him by sufferance of his owner is not liable in a noxal action, for even though parties may have lawful possession, nevertheless, they have not possession as owners; hence those slaves are understood to be in the power of their owner, if the said owner has the means of recovering them. 2What is the meaning of the words, “Has the means of recovering them”? It signifies that he has the money by which to release them, for he ought not to be compelled to sell his property in order to pay the money and recover the slave. 3Where an owner confesses that a slave is in his power he must either produce him in court or defend him, if he is absent; and if he does neither, he will be punished just as if the slave had been present and he had not surrendered him. 4Where the owner denies that the slave is in his power, the Prætor permits the plaintiff to choose whether he will decide the matter by means of an oath, or whether judgment shall be rendered without the surrender of the slave; by which means he will succeed if he proves that the slave is in the power of the defendant, or that he has acted fraudulently so that he may not be; but a party who does not prove that the slave is in the power of his adversary loses his case.
23 Gaius libro sexto ad edictum provinciale. Sed et si postea adversarius eius in potestate habere coeperit servum, tenetur ex nova possessione denegata ei exceptione.
23 Gaius, On the Provincial Edict, Book VI. But if his adversary should afterwards come into possession of the slave, he will be liable on account of the new possession and an exception will be denied him.
24 Paulus libro octavo decimo ad edictum. De illo videndum, utrum adversus eum tantum, qui dolo fecit, quo minus in potestate haberet, actio locum habeat noxalis, si ex dolo eius acciderit, ut cesset noxalis actio (forte si servo suo fugam mandavit) an et si possit nihilo minus cum alio agi (quod accidit, cum alienatus manumissusve est). quod est verius: in quo casu electio est actoris, cum quo velit agere. Iulianus autem ait de eo qui manumisit, si paratus sit defendere se manumissus, exceptionem dandam ei qui manumisit. hoc et Labeo.
24 Paulus, On the Edict, Book XVIII. It must be considered whether a noxal action can be brought only against the party who fraudulently managed to prevent the slave from being in his power if it should happen through his fraud that a noxal action will not be available; for instance, where he ordered his slave to take the flight; or whether an action cannot, nevertheless, be brought against some other party; which would be the case if the slave were sold or manumitted? The latter is the better opinion, as in this instance the plaintiff has the choice of proceeding against either party. Julianus, however, says that if the manumitted slave is ready to defend his case, an exception should be granted to the person who manumitted him; and this is also the opinion of Labeo.
25 Gaius libro sexto ad edictum provinciale. Idem est, et si novus dominus servi iudicium patiatur.
25 Gaius, On the Provincial Edict, Book VI. The rule is the same where the new owner of the slave is made defendant in the suit.
26 Paulus libro octavo decimo ad edictum. Electio vero alterum liberabit: id enim praetor introduxit, ne eluderetur actor, non ut etiam lucrum faceret: ideoque exceptione a sequenti summovebitur. 1His consequens est, ut, si plures dolo fecerint, quo minus in potestate haberent, eligere debeat actor, quem velit convenire. 2Item si ex pluribus dominis quidam dolo malo partes suas desierint possidere, electio erit actoris, utrum directo agere velit cum eo qui possidet, an praetoria cum eo qui desiit possidere. 3Si servum alienum alius in iure suum esse responderit, altero solvente alter liberatur. 4Si is, quem desieris dolo possidere, decesserit, priusquam hac actione convenireris, liberaris, quia haec actio in locum directae actionis succedit: diversum dicemus, si moram feceris in iudicio accipiendo. 5Neque heredi neque in heredem, quod defunctus mentitus est, actio danda est, nec in ipsum quolibet tempore: nam liberum esse debet defendenti absentem servum huius edicti poenam evitare, id est ut sine noxae deditione conveniatur. et ideo si negaveris servum in tua potestate esse, postea fateri poteris, nisi si iam lis adversus te contestata est: nam tunc audiri non debebis, ut Labeo ait: Octavenus ex causa etiam lite contestata tibi succurrendum, utique si aetas tua ea sit, ut ignosci tibi debeat. 6Si absente domino ductus sit servus vel etiam praesente et in eadem causa sit, ut in integrum restitui possit, defensio permittitur eius nomine qui ductus est: postulantibus enim exhiberi eum ad defendendum indulgere praetor debet. idem concedendum est fructuario vel cui pignoris nomine obligatus est, si praesens dominus defendere noluerit, ne alterius dolus aut desidia aliis noceat. idem praestandum est in servo communi, quem alter ex dominis praesens noluit defendere. sed et actori his casibus succurrendum est, quia placet dominii adquisitione extingui actionem: iussu enim praetoris ductus in bonis fit eius qui duxit.
26 Paulus, On the Edict, Book XVIII. The choice of one defendant releases the other; for the Prætor introduced this right to prevent the plaintiff from 6eing thwarted, and not that he might obtain any profit; and therefore he will be barred by an exception if he brings the other suit. 1It follows as a result that where several persons fraudulently manage to avoid having the slave in their power, the plaintiff must select which one he would rather sue. 2Again, if of several joint-owners, some, through malicious fraud, relinquish possession of their shares; the plaintiff has the choice as to whether he will proceed directly against the party who was in possession, or whether he will bring a prætorian action against him who has ceased to be in possession. 3Where a party answers in court that a slave who belongs to another is his, then, if either one should pay, the other will be discharged. 4If a slave of whom you have fraudulently relinquished possession dies before this action is brought against you, you will be discharged because this action takes the place of the direct one. We hold that the case is different where you are in default in joining issue. 5An action will not be granted to an heir, or against an heir, on the ground that the deceased stated what was false, nor against the party himself, after the lapse of an indefinite time; for anyone is free to assume the defence of an absent slave in order to avoid the penalty prescribed by this Edict, that is to say, to be sued without the right to surrender the slave by way of reparation. Therefore, if you deny that the slave is in your power, you can afterwards confess that he is, unless joinder of issue has already taken place in the case against you; for then you ought not to be heard; as Labeo says. Octavenus, however, says that you are entitled to relief even after issue has been joined, if cause is shown, at all events if your age is such that indulgence should be granted you. 6Where a slave is taken away during the absence of his master, or even in his presence, and matters are still in such a condition that complete restitution is possible, a defence is permitted on account of the slave that was taken away; for if a request was made for him to be produced in court for the purpose of making a defence, the Prætor ought to grant it. The same relief should be afforded an usufructuary or one to whom the slave was pledged on account of a debt, where the owner is present and refuses to make a defence, in order that the malice or negligence of one man may not injure others. The same relief must also be afforded where a slave is held in common and one of his owners, who is present, refuses to make a defence. In these instances the plaintiff is also entitled to relief because it is established that the right of action is extinguished by the acquisition of ownership; for when the slave is removed by order of the Prætor, he becomes the property of the party who led him away.
27 Gaius libro sexto ad edictum provinciale. Si noxali iudicio agitur de servo qui pignoris iure tenetur aut de eo cuius usus fructus alterius est, admonendi sumus, si creditor vel usufructuarius praesens defensionem suscipere noluerit, proconsulem interventurum et pignoris persecutionem vel usus fructus actionem negaturum. quo casu dici potest ipso iure pignus liberari (nullum enim pignus est, cuius persecutio negatur): usus fructus autem, etiamsi persecutio eius denegetur, ipso iure durat eo usque, donec non utendo constituto tempore pereat. 1Ex his quae diximus de servo qui alicui pignoris iure obligatus est deque statulibero et de eo cuius usus fructus alienus est, apparet eum, qui alienum servum in iure suum esse responderit, quamvis noxali iudicio teneantur, non tamen posse noxae deditione ipso iure liberari, quia nullum ad actorem dominium transferre possunt, cum ipsi domini non sint. certe tamen, si ex ea causa traditum postea dominus vindicet nec litis aestimationem offerat, poterit per exceptionem doli mali repelli.
27 Gaius, On the Provincial Edict, Book VI. Where a noxal action is brought with reference to a slave who is held by way of pledge, or with reference to one in whom another party has the usufruct; we must remember that if either the creditor or the usufructuary is present and is unwilling to undertake the defence, the Proconsul must intervene, and refuse the sale of the pledge or an action to be brought for the usufruct. In this instance it may be said that the pledge is released by operation of law, since that is no pledge upon which the money cannot be collected by suit; but an usufruct remains as a matter of right, even though an action to recover it may be refused, until the time established by law has elapsed, and it is lost by non-user. 1From what we have stated with reference to a slave who was held by anyone in pledge, or a slave who is to be free upon a certain condition, or one in whom another party has an usufruct; it is evident that where a defendant states in court that his slave in reality belongs to another; then, even though he is liable to a noxal action, he cannot, nevertheless, be free from liability by operation of law through the surrender of the slave by way of reparation; for as the party is not the owner he cannot transfer the ownership to the plaintiff. It is, however, certain, that where a slave has been delivered for this reason, and his owner afterwards brings suit to recover him, but does not tender the damages assessed in the case; he can be opposed by an exception on the ground of malicious fraud.
28 Africanus libro sexto quaestionum. Et generaliter si alieni servi nomine, qui tibi iustam servitutem serviret, noxali tecum egerim tuque eum mihi noxae dederis: sive me possidente dominus eum vindicet, exceptione doli mali, nisi litis aestimationem offerat, eum summovere possum, sive ipse possideat, Publiciana mihi datur, et adversus excipientem ‘si dominus eius sit’ utilem mihi replicationem doli mali profuturam et secundum haec usu quoque me capturum, quamvis sciens alienum possideam: alioquin si aliter constituatur, futurum, ut summa iniquitate bonae fidei possessor adficiatur, si, cum ipso iure noxalis actio adversus eum competit, necessitas ei imponatur, ut litis aestimationem sufferat. eademque dicenda sunt et si, cum ab eo non defenderetur, iussu praetoris eum duxerim, quoniam isto quoque casu iustam causam possidendi habeo.
28 Africanus, Questions, Book VI. Generally speaking, if I bring a noxal action against you on account of the slave of a third party, who is serving you in good faith, and you surrender him to me by way of reparation; and then if, while I am in possession of him, his owner brings suit to recover him, I can bar him with an exception on the ground of malicious fraud, unless he tenders the damages which have been assessed; but if the owner himself should be in possession, I am entitled to the Publician Action, and if the defendant makes use of the exception, “Unless the defendant is his owner,” a replication based on malicious fraud can be interposed for my benefit. In accordance with this I can acquire ownership by use, although I am aware that I am in possession of the property of another, and, in fact, if it had been otherwise established, the result would be that a bona fide possessor would be subjected to the greatest injustice; since while, as a matter of law, he would be liable in a noxal action, the necessity is imposed upon him to submit to the payment of the damages assessed in the case. The same principle applies where no defence is made with reference to the slave, and I take him away by order of the Prætor; since, in this instance also, I have a legal ground of possession.
29 Gaius libro sexto ad edictum provinciale. Non solum autem qui in potestate non habet recusare potest noxale iudicium, verum et habenti in potestate liberum est evitare iudicium, si indefensam eam personam relinquat: sed huic necesse est ius suum ad actorem transferre, perinde ac si damnatus esset.
29 Gaius, On the Provincial Edict, Book VI. Not only can a person who has not the slave in his power refuse to answer in a noxal action, but he is also free to avoid the action even when he has him in his power, if he leaves the person undefended; but in this instance he must transfer his right to the plaintiff, just as if judgment had been rendered against him.
30 Idem libro ad edictum praetoris urbani, titulo de damno infecto. In noxalibus actionibus eorum qui bona fide absunt ius non corrumpitur, sed reversis defendendi ex bono et aequo potestas datur, sive domini sint sive aliquid in ea re ius habeant, qualis est creditor et fructuarius.
30 The Same, On the Edict of the Urban Prætor, Under the Head of the “Prevention of Threatened Injury.” In noxal actions, the rights of those who are absent in good faith are not lost, but, on their return, power is given them to make a defence in accordance with what is proper and just, whether they are the owners or have some right in the property in dispute, such as creditors and usufructuaries.
31 Paulus libro septimo ad Plautium. Quod ait praetor, cum familia furtum faciat, ad eum modum se actionem daturum, ut tantum actor consequatur, quantum si liber fecisset consequeretur, quaeritur, utrum ad pecuniae praestationem respiciat an etiam ad noxae deditionem, ut puta si ex pretiis noxae deditorum duplum colligatur, sequentes actiones inhibeantur. Sabinus et Cassius putant pretium quoque noxae deditorum imputari debere, quod Pomponius probat et est verum: nam et si servus indefensus ductus sit, aestimatio eius imputanda est. certe non tantum duplationis, sed et condictionis rationem habendam Iulianus putat. furti faciendi tempus spectandum esse, an eiusdem familiae sint servi: nam si hi, qui plurium dominorum erunt, unius esse postea coeperint, locus edicto non erit.
31 Paulus, On Plautius, Book VII. Where the Prætor says, “When a number of slaves commit a theft an action will only be granted to enable the plaintiff to obtain as much as he would have done if a freeman had committed the crime,” the question arises whether this has reference to the payment of money as damages, or to the surrender of the slave by way of reparation; as, for instance, where double damages are collected out of the value of the slaves that have been surrendered, whether other actions will be prohibited? Sabinus and Cassius both think that the defendant should be credited with the value of the slaves surrendered. This Pomponius approves, and it is true; for if a slave is taken away because no defence was offered, the owner must receive credit for what he was worth. Julianus thinks that it is certain that an account must be taken, not only of the double damages, but also of what might be recovered by a personal action; and where theft has been committed by a number of slaves, the time when this was done must be investigated, in order to determine whether they belonged to the same band; for the Edict is not applicable where those slaves who belong to different owners afterwards becomes the property of one alone.
32 Callistratus libro secundo edicti monitorii. Is qui in aliena potestate est si noxam commississe dicatur, si non defendatur, ducitur: et si praesens est dominus, tradere eum et de dolo malo promittere debet.
32 Callistratus, Monitory Edict, Book II. Where the slave is in the power of one who is not his owner, and is said to have committed an offence, if he is not defended he will be taken away; and if his owner is present, he should deliver him up and give security against malicious fraud.
33 Pomponius libro quarto decimo ad Sabinum. Noxali iudicio invitus nemo cogitur alium defendere, sed carere debet eo quem non defendit, si servus est: quod si liber est qui in potestate sit, indistincte ipsi sui defensio danda est:
33 Pomponius, On Sabinus, Book XIV. No one can, against his will, be forced to defend another in a noxal action, but he must be deprived of him whom he refuses to defend, if he is his slave; but where the party who is in the power of another is free, he ought to be permitted to defend himself under all circumstances :
34 Iulianus libro quarto ad Urseium Ferocem. quotiens enim nemo filium familias ex causa delicti defendit, in eum iudicium datur
34 Julianus, On Urseius Ferox, Book IV. For whenever no one will undertake the defence of the son of a family on account of a breach of the law, an action is granted against him,
35 Ulpianus libro quadragensimo primo ad Sabinum. et si condemnatus fuerit, filius iudicatum facere debet: tenet enim condemnatio. quin immo etiam illud dicendum est patrem quoque post condemnationem filii dumtaxat de peculio posse conveniri.
35 Ulpianus, On Sabinus, Book XLI. And if judgment is rendered against the son he must comply with it, for he is held by the decision. Moreover, it must be stated that his father also is liable to an action De peculio, after judgment has been pronounced against the son.
36 Idem libro trigensimo septimo ad edictum. Si quis servum pigneratum, deinde a debitore subreptum emerit a debitore, nomine eius furti tenebitur dominio servi adquisito, nec oberit, quod Serviana potest ei homo avocari. idemque et si a minore quis viginti quinque annis emerit vel in fraudem creditorum sciens: hi enim, quamvis auferri eis dominium possit, interim tamen conveniendi sunt.
36 The Same, On the Edict, Book XXXVII. Where anyone purchases from a debtor a slave who has been pledged and then stolen by him, the purchaser will be liable on the ground of theft, after he has acquired the ownership of the slave; and no objection can be made that the slave can be recovered by him, by means of the Servian Action. The rule is the same where a party makes a purchase from a minor under twenty-five years of age, or knowingly for the purpose of defrauding creditors; as, although the latter can be deprived of their ownership, still, in the meantime, suit can be brought against them.
37 Tryphoninus libro quinto decimo disputationum. Si alienus servus furtum mihi fecerit, qui postea in meum dominium pervenerit, extinguitur furti actio, quae mihi conpetierat, nondum in iudicium deducta, nec si postea alienavero eum, quem ante litem contestatam emeram, furti actio restaurabitur: quod si post litem contestatam eum redemero, condemnandus erit venditor,
37 Tryphoninus, Disputations, Book XV. Where a slave belonging to another steals my property and afterwards comes into my hands as owner, the right of action for theft to which I was entitled is extinguished, if it has not yet been made use of; and if I should afterwards dispose of the slave whom I bought before issue was joined, the right of action for theft will not be renewed; but if I purchase him after issue has been joined, the vendor can have judgment rendered against him:
38 Ulpianus libro trigensimo septimo ad edictum. quemadmodum si alii vendidisset: parvi enim refert, cui vendiderit, adversario an alii: suaque culpa litis aestimationem sublaturum, qui vendendo noxae deditionem sibi ademit. 1Iulianus autem libro vicensimo secundo digestorum scribit, si servum pro derelicto habeam, qui tibi furtum fecerat, liberari me, quia statim meus esse desinit, ne eius nomine, qui sine domino sit, furti sit actio. 2Si servus meus rem tuam subtraxerit et vendiderit tuque nummos quos ex pretio habebat ei excusseris, locus erit furti actioni ultro citroque: nam et tu adversus me furti ages noxali servi nomine et ego adversus te nummorum nomine. 3Sed et si servo creditoris mei solverim nummos, ut is eos domino suo det, aeque locus erit furti actioni, si is nummos acceptos interceperit.
38 Ulpianus, On the Edict, Book XXXVII. Just as he would if he had sold him to another party, for, indeed, it makes little difference to whom he sells him, whether to his adversary or to someone else; and it will be his own fault if he has to submit to the payment of the damages assessed, since by selling him he deprived himself of the power of surrendering him by way of reparation. 1Julianus, however, states in the Twenty-second Book of the Digest, that if I abandon the slave who stole your property, I am released from liability, because he at once ceased to belong to me; otherwise an action for theft could be brought on account of him who has no owner. 2Where my slave steals your property and sells it, and you deprive him of the money in his possession which he obtained as part of the price of said property, there will be ground for an action of theft on both sides; for you can bring a noxal action of theft against me on account of the slave, and I can bring one against you on account of the money. 3Moreover, where I pay money to the slave of my creditor in order that he may give it to his master, there will also be ground for an action of theft, if the slave appropriates the money he received.
39 Iulianus libro nono digestorum. Si plurium servus furtum fecerit et omnes dolo fecerint, quo minus eum in potestate haberent, subsequi debet praetor iuris civilis actionem et iudicium honorarium, quod ex hac causa pollicetur, in eum dare, quem actor elegerit: neque enim amplius praestare actori debet, quam ut detracta noxae deditione agere possit cum eo, cum quo noxali iudicio experiri potuisset, si servus exhiberetur. 1Qui alienum servum suum esse fatetur, quamvis noxali actione obligetur, nihilo minus causa cognita satisdare debet: qui autem pro servo convenitur, satisdatione onerandus non est: non enim offert se defensioni alieni servi. 2Si quis dicet dominum dolo fecisse, quo minus in potestate eius servus esset, ille autem contendat eum servum ab alio defendi cum satisdatione, doli mali exceptioni locus erit. 3Sed et si post iudicium acceptum cum domino servus apparuerit et, quia non defendebatur, ductus sit, exceptione doli mali posita dominus absolvetur. 4Sed et mortuo servo antequam iudicium accipiatur, omnino hac actione non tenebitur dominus.
39 Julianus, Digest, Book IX. Where a slave belonging to several persons commits a theft and all his owners fraudulently manage to avoid having him in their power, the Prætor ought to follow the form of the civil action, and allow the equitable action which he promises in an instance of this kind to be brought against whichever owner the plaintiff may select; and he should not afford the plaintiff any greater advantage than to enable him to bring an action, without the defendant having the right to surrender the slave by way of reparation; since he would have been able to institute proceedings in a noxal action if the slave had been produced in court. 1Where anyone acknowledges that a slave is his own who really belongs to another; then, although he is liable to a noxal action, nevertheless, where proper cause is shown, he can be compelled to give security; but where a party is sued on account of his own slave, he should not be burdened with security, as he is not volunteering in the defence of a slave belonging to another. 2Where anyone states that the owner of a slave had acted fraudulently to avoid having said slave in his possession, and the owner contends in court that the suit should be defended by someone else who would furnish security; there is ground here for an exception on the ground of malicious fraud. 3But if, after issue has been joined with the owner, the slave should appear, and because he was not defended is taken away; the owner will be discharged if he interposes an exception on the ground of malicious fraud. 4Where, however, the slave dies before issue is joined, the owner will not be held liable in this action at all.
40 Idem libro vicensimo secundo digestorum. Si servus legatus ante aditam hereditatem rem heredis futuri subtraxerit, poterit is cum legatario qui legatum agnoverit furti agere: sed si idem servus hereditariam rem subtraxerit, furti actio cessabit, quia huiusmodi rerum furtum non fit: ad exhibendum autem actio competit.
40 The Same, Digest, Book XXII. Where a slave is bequeathed as a legacy and steals the property of the future heir before the estate is entered upon; the heir can bring an action of theft against the legatee if he accepts the legacy. But where the same slave appropriates property which belongs to the estate, an action of theft will not lie, because there can be no theft of property of this description; but an action can be brought to compel him to produce the property in court.
41 Idem libro secundo ad Urseium Ferocem. Cum servus communis alteri dominorum damnum iniuria dedit, idcirco legis Aquiliae actio non est, quia, si extraneo damnum dedisset, cum altero in solidum lege Aquilia agi posset: sicuti, cum servus communis furtum fecerit, cum altero domino furti agi non potest, sed communi dividundo agi potest.
41 The Same, On Urseius Ferox, Book II. Where a slave owned in common causes unlawful damage to one of his owners, an action under the Lex Aquilia will not lie on that account; because if he had caused the damage to a stranger, an action could be brought against the other joint-owner for the entire amount under the Lex Aquilia; just as where a slave owned in common committed theft an action for theft cannot be brought against the other joint-owner, but proceedings in partition must be instituted.
42 Ulpianus libro trigensimo septimo ad edictum. Si ad libertatem proclamaverit is cuius nomine noxale iudicium susceptum est, sustineri debet id iudicium, quoad de statu eius iudicetur: et sic, si quidem servus fuerit pronuntiatus, noxale iudicium exercebitur, si liber, inutile videbitur. 1Si quis pro servo mortuo ignorans eum decessisse noxale iudicium acceperit, absolvi debet, quia [ed. maior desit] <ed. minor desiit> verum esse propter eum dare oportere. 2Hae actiones perpetuae sunt locumque habebunt tamdiu, quamdiu servi dedendi facultatem habemus: nec tantum nobis, verum etiam successoribus nostris competent, item adversus successores, sed non quasi in successores, sed iure dominii. proinde et si servus ad alium pervenisse proponatur, iure dominii noxali iudicio novus dominus convenietur.
42 Ulpianus, On the Edict, Book XXXVII. Where a party, on account of whom issue has been joined in a noxal action, claims his freedom, proceedings should be stayed until his condition is determined; hence if he should be declared to be a slave, the noxal action will proceed, but if he is decided to be free it will be held to be of no effect. 1Where a party undertakes to defend a noxal action on account of a slave who is dead, and he is ignorant of the fact, he should be discharged from liability, because it has ceased to be true that he should surrender anything on account of said slave. 2These actions are not barred by lapse of time, and are available as long as we have the power of surrendering the slave; for they can be brought not only against us but also against our successors, as well as against the successors of the party liable in the first place, not because they succeed to his liability, but on the ground of ownership. Hence, if a slave has come into the hands of another party, his new owner can be sued in a noxal action on the ground of ownership.
43 Pomponius libro octavo epistularum. Servi, quorum noxa caput sequitur, ibi defendendi sunt, ubi deliquisse arguentur: itaque servos dominus eodem loco exhibere debet, ubi vim intulisse dicentur et carere omnium dominio potest, si eos non defendat.
43 Pomponius, Epistles, Book VIII. Slaves, in cases where liability for reparation follows the individual, should be defended in the place where it is alleged that they committed the offence, and therefore the owner is obliged to produce said slaves in the place where they are said to have committed the violence and he may lose the ownership of all of them if he does not defend them.