[PAULUS libro secundo quaestionum. ] §11.1.20.prQui seruum alienum responderit suum esse, si noxali iudicio conuentus sit, dominum liberat: aliter atque si quis confessus sit se occidisse seruum quem alius occidit, uel si quis responderit se heredem: nam his casibus non liberatur qui fecit uel qui heres est.
[PAULUS, from the second book of Questions.] A person who answers that another's slave is his own, if he is sued in a noxal action, releases the owner; it is otherwise than if someone confesses that he killed a slave whom another killed, or if someone answers that he is the heir, for in these cases the person who committed the act or who is the heir is not released.
nec haec inter se contraria sunt: nam superiore casu ex persona serui duo tenentur, sicut in seruo communi dicimus, ubi altero conuento alter quoque liberatur: at is qui confitetur se occidisse uel uulnerasse suo nomine tenetur, nec debet impunitum esse delictum eius qui fecit propter eum qui respondit: nisi quasi defensor eius qui admisit uel heredis litem subiit hoc genere: tunc enim in factum exceptione data summouendus est actor, quia ille negotiorum gestorum uel mandati actione recepturus est quod praestitit: idem est in eo, qui mandatu heredis heredem se esse respondit uel cum eum alias defendere uellet.
Nor are these rules contradictory to each other; for in the former case two persons are held liable in respect of the person of the slave, just as we say in the case of a common slave, where when one is sued, the other is also released. But he who confesses that he killed or wounded a slave is liable in his own name, and the offense of the person who committed it ought not to go unpunished on account of the person who answered; unless he undertook the litigation in this manner as a defender, so to speak, of the one who committed the offense or of the heir; for then, an exception based on the facts being granted, the plaintiff must be barred, since that person will recover what he has paid by an action on business managed or on mandate. The same applies to one who, by mandate of the heir, answered that he was the heir, or when he wished to defend him in some other way.
§11.1.20.1In iure interrogatus, an fundum possideat, quaero an respondere cogendus sit et quota ex parte fundum possideat.
When interrogated in court whether he possesses a piece of land, I ask whether he should be compelled to answer and as to what share of the land he possesses.
respondi: Iauolenus scribit possessorem fundi cogi debere respondere, quota ex parte fundum possideat, ut si minore ex parte possidere se dicat, in aliam partem, quae non defenderetur, in possessionem actor mittatur.
I answered: Javolenus writes that the possessor of land ought to be compelled to answer as to what share of the land he possesses, so that if he says he possesses a smaller share, the plaintiff may be put into possession of the other part which is not defended.
§11.1.20.2Idem et si damni infecti caueamus: nam et hic respondere debet, quota ex parte eius sit praedium, ut ad eam partem stipulationem accommodemus: poena autem non repromittentis haec est, ut in possessionem eamus, et ideo eo pertinet scire an possideat.
The same holds if we provide security against threatened damage; for here also he ought to answer as to what share of the estate is his, so that we may adapt the stipulation to that share; moreover, the penalty for one who does not promise is that we enter into possession, and therefore it is of relevance to know whether he possesses.