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.

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.

Ulpianus, On the Edict, Book VII. The Prætor has considered it most just to punish the malice of one who prevents the appearance of another in court. 1He not only is held to be guilty of malice who detains a party either with his own hands, or through the agency of those in his service, but also he who requests others to detain him or abduct him to prevent his appearing in court, whether they knew, or were ignorant of what he intended to do. 2Where any person communicates evil tidings to another on his way to court by means of which he prevents him from appearing, we consider it to be malicious, and he is liable under the Edict; although some authorities are of the opinion that the party who was so credulous would only have himself to blame. 3Where a defendant is prevented from appearing through the malice of the plaintiff, he will not have a right of action against the latter under this Edict, since he must be contented with an exception in case he should be sued for the penalty of his bond because he did not appear in court, but the case is different if he was prevented by another, for then he could bring an action against him. 4Where several persons have acted fraudulently, all are liable; but if one of them pays the penalty, the others are released from liability, as the plaintiff has no further interest in the matter. 5All authorities are of the opinion that in an instance of this kind, where a slave is concerned, a noxal action must be brought. 6The right of action passes to the heir, but not for a longer time than a year; and I think that an action will lie against the heir only to the extent of preventing him from profiting by the fraud of the deceased.

Ulpianus, On the Edict, Book VII. A .... is considered to be present who at the time is in his garden; ....

Ulpianus, On the Edict, Book VII. So that his agent is held to be present.

The Same, On the Edict, Book VII. Where anyone has become a soldier, or subject to some other jurisdiction after he has been summoned to appear in court, he will not have the right to have his cause transferred, because he has been, as it were, anticipated.

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.

Ulpianus, On the Edict, Book VII. No one can lease a servitude.

Ulpianus, On the Edict, Book VII. Where a man who is dead cannot be produced in court, the penalty for something which is impossible is not incurred; just as where someone, having stipulated to deliver Stichus, who is dead, provides for a penalty if he should not be delivered.

Ulpianus, On the Edict, Book VII. He who is alleged to have given forged letters in the name of the Prætor, or to have promulgated a forged Edict, is liable to a penal action in factum, even though he may have been prosecuted under the Cornelian Law.

The Same, On the Edict, Book VII. A marriageable virgin is also included in the term “woman.” 1Property is considered to have been lost (according to the opinion of Sabinus, which Pedius adopts), even if the substance of it remains, though the form is changed. Therefore, if property is returned spoiled or altered, it is considered to have been lost; as the workmanship is generally of more value than the article itself. 2Property which has been lost is considered to cease to be in that condition when it comes under our control in such a way that we cannot again lose possession of it. 3An example of this is where anything has long since been taken from us by theft. Property is also considered lost when it is no longer in existence.