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.

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.

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 being 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.

Paulus, On the Edict, Book XVIII. The taking of an oath has the appearance of a compromise, and it has greater weight than the judgment of a court.

Paulus, On the Edict, Book XVIII. Or the heads of your sons,

Paulus, On the Edict, Book XVIII. Even though they succeed to the property.

Paulus, On the Edict, Book XVIII. Because a transaction between certain parties should not injure anyone else.

Paulus, On the Edict, Book XVIII. Where an oath is tendered extrajudicially in accordance with an agreement, it cannot be tendered back again. 1A ward shall tender an oath with his guardian’s consent, because, if he tenders it without it, an exception can be placed against him; but he is entitled to a replication, because he has no legal right to attend to his own affairs. 2Where a guardian who is administering a guardianship, or the curator of an insane person or a spendthrift, tenders an oath, it should be considered as ratified; as they dispose of property, and give receipts where money is paid, and can also bring a matter into court by means of a legal action. 3Moreover, where an agent tenders an oath, it must be sustained where he has control of all the property of his principal, or was especially directed to do this, or is an agent acting in his own behalf.

Paulus, On the Edict, Book XVIII. Where a slave tenders an oath or takes one, it will be sustained if he has the administration of his peculium:

Paulus, On the Edict, Book XVIII. Some authorities hold that an action De peculio should be granted against the owner where a slave tenders an oath to the plaintiff. The same rules apply to a son under paternal control.

Paulus, On the Edict, Book XVIII. Where any one is said to have sworn, it makes no difference what his or her sex, or age may be, for the oath should, by all means, be sustained against the party who was content with it when he tendered it; although a ward is never considered to have perjured himself, because it is not held that he can knowingly be guilty of deception. 1If a father swears that his son is not obliged to pay; Cassius stated as his opinion that an exception based on the oath should be granted to both father and son. Where a father swears that there is nothing in the peculium, an action can be brought against the son; and it can also be brought against the father in order to obtain an accounting for any peculium which may have been subsequently acquired. 2The taking of an oath may be considered as belonging to the same class as the renewal or assignment of an obligation, as it grows out of an agreement; although it also bears some resemblance to a judgment.

Paulus, On the Edict, Book XVIII. Where two creditors jointly interested enter into a stipulation, and the oath is tendered by one of them, it will also prejudice the other. 1Where the principal debtor takes an oath, it also benefits a surety; and where an oath is required of a surety it likewise benefits the principal debtor, as Cassius and Julianus say; for, because it takes the place of payment it must, in this instance also, be considered as doing so; provided that the oath was introduced with reference to the contract itself and the property in question, and not with respect to the person who was sworn. 2Ad Dig. 12,2,28,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 295, Note 6.Where anyone promises to produce my debtor in court, and I tender him the oath, and he swears that he never promised to produce him, this should be of no advantage to my debtor; but if he swears that he himself is not at all indebted to me, a distinction ought to be made, and the proceedings amended by means of a replication; whether he made oath to the effect that after his promise he had produced the party, or, in fact, had paid what was due. A distinction of the same kind can also be made in the case of a surety for a debt. 3Where one of two joint-debtors of a certain sum of money took the oath; this should also benefit the other. 4An exception based upon an oath can be used not only where a party brings an action on account of the matter for which he executed the oath, but also with reference to another case, provided the same question is concerned in the latter proceeding; for example, where an oath is required in an action on mandate, or in one based on business transacted, partnership, and others of the same kind; and then a specific action for recovery based on the same matters can be brought, for the reason that one action is annulled by the other. 5Where anyone swears that he did not commit robbery, he should not be permitted to derive any advantage from his oath in an action for theft, or in one for the recovery of stolen property; because theft is a different crime, being one that can be perpetrated secretly. 6Where suit is brought against a tenant on his lease, for instance, because trees have been cut down, and he swears that he did not cut them, and he is afterwards sued under the Law of the Twelve Tables for having cut trees, or under the Lex Aquilia for wrongful damage, or an interdict Quod vi aut clam is applied for against him; he can make a defence by means of an exception based upon his oath. 7Where a woman swears that she did not remove property belonging to her husband on account of a divorce, she cannot make a defence by means of an exception, if suit is brought against her for the recovery of the property, and if she contends that it is hers, another oath will be required; on the other hand, if she swore that the property was hers, this oath can be set up as a defence in an action for the removal of property which has been removed. And, indeed, it should be generally observed that where the same question comes up in a different action, an exception based upon the oath will be available. 8Therefore, where a party swears that judgment was not rendered against him, even though he is sued on a judgment based on a stipulation that the decision of the court will be obeyed; he can defend himself by means of an exception. Where, however, on the other hand, he is sued on the stipulation that the decision of the court will be complied with, and he then swears that he is not obliged to pay, an exception cannot be properly pleaded against the party bringing suit on the judgment; for it may happen that the stipulation did not become operative, even though judgment was rendered against him, unless he should swear that this was not the case. 9Moreover, Pomponius says that where a man swears that some of his property was stolen, he does not immediately acquire a good cause of action for the recovery of the property. 10Again, since under this Section the oath affords ground for both an action and an exception, if the defendant takes an oath out of court, which is tendered by the plaintiff, and swears that he is not obliged to pay; and then the plaintiff, on the tender of the oath by the defendant, swears that he has a right to exact payment, or vice-versa; the last claim supported by oath will have more force, but this will not prejudice the point as to whether the other party has committed perjury; for the question is not whether the defendant was obliged to pay, but whether the plaintiff made oath that he was.

Paulus, On the Edict, Book XVIII. Pedius says that where a man, in an action in which the amount is increased by the denial of the defendant, swears that something is owing to him, he acquires a right to bring suit for simple and not for double damages; for it is abundantly sufficient that the plaintiff should be freed from the necessity of proving his case, since, leaving out this part of the Edict, his right of action for double damages remains unimpaired; and it may be said that in a case of this kind the principal cause of action is not the object of the proceeding, but that the oath of the plaintiff should take effect. 1If I swear that you are obliged to deliver Stichus to me, and such a slave is not in existence, you, as defendant, are not required to pay me his value, except in case of theft or because of your default; for in either of these instances the value of the slave must be stated, even after his death. 2Where a woman swears that ten aurei are due to her on account of dowry, that entire amount must be paid; but if she swears that she paid ten aurei by way of dowry, inquiry will not be made as to the mere fact whether the amount was paid, but it will be considered as paid, and whatever portion should be returned must be given to her. 3In a popular action, an oath which has been exacted can be used against others only if it was demanded in good faith; for, where anyone institutes proceedings, this does not prevent a public action, unless the proceedings were instituted through collusion. 4Where a freedman, after his patron has tendered him the oath, swears that he is not his freedman, the oath must be sustained; so that no claim for services, nor one for the possession of the property of an estate contrary to the provisions of the will, can be considered. 5If I swear that I have a right to have a usufruct transferred to me, this should be done only where I give security that I will make use of it in the way that a good citizen would do, and that, when the usufruct terminates, I will restore it.

Paulus, On the Edict, Book XVIII. If you, without having been guilty of fraud, have lost property which has been deposited with you, you will not be liable to an action on deposit, nor should you give security to return the property if you should again obtain possession of it. If, however, it should come into your hands a second time, you will be liable to an action on deposit.

Paulus, On the Edict, Book XXVIII. In an action for the recovery of property which has been wrongfully appropriated, the husband or the wife shall be permitted to tender the oath with reference to certain property, and to confirm what has been testified to with reference to any other.

Paulus, On the Edict, Book XVIII. He against whom suit is brought to compel him to take care of rain-water, and who has performed the work rendering him liable to such an action, will be compelled to join issue in the case, even if he is ready to abandon it, since he is sued personally in his own name to compel him to remove the structure. 1The case is different with a bona fide purchaser, for he can only be compelled to permit the destruction of the work; and therefore if he abandons the property he should be heard, for he offers to do more than is required of him.

The Same, On the Edict, Book XVIII. A defendant who alleges that he has already sworn in court that he does not owe the money for which he is sued, can avail himself of all other exceptions in addition to that based on taking the oath, or of the rest of them without it; for he is permitted to make use of several defences.

Paulus, On the Edict, Book XVIII. When I stipulate for one thing or the other, whichever I may select, the choice is a personal one and therefore a selection of this kind attaches to a slave or a son under paternal control. If, however, the stipulator should die before making his choice, the obligation will pass to the heirs. 1When we stipulate that you shall either give or do something, that which is owing at the present time is only included in the stipulation, and not what may be due hereafter, for instance, on judgments. Therefore, the words, “What you must pay,” “either now, or within a certain time” are inserted into the stipulation. This is done because a person who stipulates for you to pay something has reference to money which is already due. If, however, he wishes to designate the entire indebtedness, he says, “What you must pay either now or within a certain time.”

The Same, On the Edict, Book XVIII. If I have stipulated under an impossible condition, I cannot be compelled to furnish a surety.

Paulus, On the Edict, Book XVIII. Good faith concedes as much to a possessor as he is really entitled to, whenever the law does not prevent this from being done.