[PAULUS libro primo ad Plautium. ] §2.11.10.prSi eum iudicio sisti promisero, qui iam tempore liberatus esse dicebatur, quia iam actione forte non tenebatur: actio in me danda est, ut uel exhibeam eum uel defendam, ut ueritas inquiratur.
[PAULUS, on Plautius, book 1] If I promise that a person will appear in court who was already said to have been released by lapse of time, because perhaps he was no longer held by the action, an action must be granted against me, so that I may either produce him or defend him, in order that the truth may be investigated.
§2.11.10.1Homo sisti promissus ante diem dolo promissoris periit: certo iure utimur non ante poenam peti posse, quam dies uenerit: tota enim stipulatio in diem collata uidetur.
If a person whose appearance was promised dies before the day through the fraud of the promisor, we observe it as settled law that the penalty cannot be claimed before the day arrives; for the entire stipulation is considered to have been deferred to that day.
§2.11.10.2Qui iniuriarum acturus est, stipulatus erat ante litem contestatam ut aduersarius suus iudicio sistat: commissa stipulatione mortuus est.
A person who was about to bring an action for injuries had stipulated before the joinder of issue that his opponent should appear in court; the stipulation having been incurred, he died.
non competere heredi eius ex stipulatu actionem placuit, quia tales stipulationes propter rem ipsam darentur, iniuriarum autem actio heredi non competit.
It has been held that the action from the stipulation does not belong to his heir, because such stipulations are given on account of the matter itself, but the action for injuries does not belong to an heir.
quamuis enim haec stipulatio iudicio sistendi causa facta ad heredem transeat, tamen in hac causa danda non est: nam et defunctus si uellet omissa iniuriarum actione ex stipulatu agere, non permitteretur ei.
For although this stipulation, made for the purpose of appearing in court, passes to the heir, yet in this case it must not be granted; for even if the deceased, abandoning the action for injuries, had wished to sue under the stipulation, it would not have been permitted to him.
idem dicendum esse et si is, cum quo iniuriarum agere uolebam, stipulatione tali commissa decesserit: nam non competit mihi aduersus heredem eius ex stipulatu actio, et hoc Iulianus scribit.
The same must be said if the person against whom I wished to bring the action for injuries dies after such a stipulation has been incurred; for the action under the stipulation is not available to me against his heir, and Julian writes this.
secundum quod et si fideiussores dati erant, minime dabitur in eos actio mortuo reo.
According to this, even if sureties had been given, an action against them will not be granted at all upon the death of the defendant.
idem Pomponius, si non post longum tempus decesserit: quia si ad iudicium uenisset, litem cum eo contestari actor potuisset.
Pomponius says the same, provided that he did not die after a long time; because if he had come to court, the plaintiff could have joined issue with him.