Ad edictum praetoris libri
Ex libro LI
Dig. 40,12,15Paulus libro quinquagensimo primo ad edictum. (id est sive virilis sexus sive feminini sit, dummodo eius aetatis sit, ut dolum capiat):
Paulus, On the Edict, Book LV. That is to say, no matter whether the person who suffered himself or herself to be sold is of the male or the female sex; provided he or she is of an age at which fraud can legally be committed.
Dig. 40,12,17Paulus libro quinquagensimo primo ad edictum. In servo et in eo, qui mandato nostro emit, tale est, ut, si certum hominem mandavero emi sciens liberum esse, licet is cui mandatum est, ignoret, idem sit: et non competet ei actio. contra autem, si ego ignoravi, procurator scit, non est mihi deneganda.
Paulus, On the Edict, Book LI. The same rule will apply to the case of a slave, and where a purchase was made under our direction by an agent; and it is just as if I had ordered a certain man to be purchased, knowing him to be free, although he who was ordered to buy him may not have been aware of the fact, as an action will not lie in his favor. If, on the other hand, I was not aware that the man was free, but the agent knew it, the action will not be refused me.
Dig. 40,12,19Paulus libro quinquagensimo primo ad edictum. Vel permutavit vel compensavit eo nomine (nam et is dedisse intellegendus est)
Paulus, On the Edict, Book LI. Or what was exchanged or set off, in lieu of the purchase money (for it also is understood to have been given as such under these circumstances);
Dig. 40,12,24Idem libro quinquagensimo primo ad edictum. Ordinata liberali causa liberi loco habetur is, qui de statu suo litigat, ita ut adversus eum quoque, qui se dominum esse dicit, actiones ei non denegentur, quascumque intendere velit: quid enim si quae tales sint, ut tempore aut morte intereant? quare non concedatur ei litem contestando in tutum eas redigere? 1Quin etiam Servius ait in actionibus annuis ex eo tempore annum cedere, ex quo lis ordinata sit. 2Sed si cum aliis experiri velit, non est quaerendum, an lis ordinata sit, ne inveniatur ratio, quemadmodum subiecto aliquo, qui libertati controversiam moveat, interim actiones excludantur: aeque enim ex eventu iudicii liberalis aut utilis aut inanis actio eius efficietur. 3Sed si quas actiones inferat dominus, quaeritur, an compellendus sit suscipere iudicium. et plerique existimant, si in personam agat, suscipere ipsum ad litis contestationem, sed sustinendum iudicium, donec de libertate iudicetur: nec videri praeiudicium libertati fieri aut voluntate domini in libertate eum morari: nam ordinato liberali iudicio interim pro libero habetur, et sicut ipse agere, ita cum ipso quoque agi potest. ceterum ex eventu aut utile iudicium erit aut nullum, si contra libertatem pronuntiatum fuerit. 4Si is, qui in libertatem proclamat, furti aut damni iniuria ab aliquo arguatur, Mela ait interim eum cavere debere iudicio se sisti, ne melioris condicionis sit qui dubiae libertatis est, quam qui certae: sed sustinendum iudicium, ne praeiudicium libertati fiat. aeque si cum possessore hominis furti agi coeperit, deinde is, cuius nomine agebatur, in libertatem proclamaverit, sustinendum iudicium, ut, si liber iudicatus sit, in ipsum transferatur iudicium: et, si damnatio facta sit, iudicati actionem potius in eum dandam.
The Same, On the Edict, Book LI. After the preliminaries of a suit involving the demand for freedom have been legally complied with, he who brought it to establish his status is considered to be free, and actions will not be refused him against one who alleges that he is his owner, no matter what actions he may desire to bring. But what if these are suits, the right to which is extinguished by lapse of time, or by death? Why should he not be granted the power to institute these proceedings in security after issue has been joined? 1Moreover, Servius says that, in cases where the right to bring actions is barred after a year has elapsed, the year must be reckoned from the day on which the case relating to freedom was disposed of. 2If, however, it is considered desirable to proceed against others, it will not be necessary to wait until the first case has been decided, lest in the meantime means may be found to bar these actions by the introduction of someone who will dispute the right of the alleged slave to be free. In like manner, an action can legally be brought or not, according to the decision in the case involving the freedom of the party in question. 3If the alleged owner should bring an action, the question arises whether the defendant will be obliged to join issue. Several authorities hold that if he brings an action in personam, he must undertake the defence of the case, but judgment must be suspended until the question of his freedom has been determined; nor should it be held that his attempt to obtain his freedom is prejudiced, or that he remains at liberty with the consent of his master. For after the case brought to establish his freedom has been decided, he is considered, in the meantime, to be free; and as he himself can bring actions, so also, actions can be brought against him; but it will depend upon the result, as the judgment will either be valid if it is in his favor, or it will be void if it is adverse to his freedom. 4Where he who demands his freedom is accused of theft, or of wrongful damage by anyone, Mela says that he must, in the interim, furnish security that he will be present when the decision is rendered, to prevent the condition of one whose freedom is in doubt from becoming preferable to that of a person whose freedom is certain; but judgment must be deferred to avoid committing any wrong against liberty. Likewise, where an action of theft is brought against the possessor of a man alleged to be a slave, and he is afterwards sued in the name of him who claimed his freedom, the decision of the case must be suspended; so that if the latter is ascertained to be free, the case against him can be transferred, and if the judgment should be unfavorable, the action to enforce it can be granted against him.
Dig. 50,16,76Idem libro quinquagensimo primo ad edictum. ‘Dedisse’ intellegendus est etiam is, qui permutavit vel compensavit.
The Same, On the Edict, Book LI. He is understood to have paid who has made an exchange or a set-off instead of giving the purchase money.
Dig. 50,17,164Paulus libro quinquagensimo primo ad edictum. Poenalia iudicia semel accepta in heredes transmitti possunt.
Paulus, On the Edict, Book LI. Suits which involve a penalty, and have once been brought, can be transmitted against heirs.