[GAIUS ad edictum praetoris urbani titulo de liberali causa. ] §40.12.9.prSi pariter aduersus eum, qui de libertate litigat, consistant fructuarius et proprietarius, fieri potest, ut alteruter absit: quo casu an praesenti soli permissurus sit praetor aduersus eum agere, dubitari potest, quia non debet alterius collusione aut inertia alteri ius corrumpi.
[GAIUS, on the Edict of the Urban Praetor, under the title 'On cases concerning freedom'] If a usufructuary and a owner should appear together against a person who is litigating concerning his freedom, it is possible that one or the other of them may be absent; in which case it may be doubted whether the praetor will permit only the one who is present to bring an action against him, because the right of one person ought not to be destroyed by the collusion or inertia of the other.
sed rectius dicitur etiam alterutri eorum permittendum agere, ut alterius ius incorruptum maneat.
But it is more correctly said that even one of them must be permitted to bring an action, so that the right of the other may remain unimpaired.
quod si adhuc nondum finito iudicio superuenerit, ad eundem iudicem mittetur, nisi si iustam causam adferat, quare ad eum mitti non debeat, forte si eum iudicem inimicum sibi esse adfirmet.
And if he should arrive while the judgment is not yet finished, he shall be sent to the same judge, unless he should bring forward a just cause why he ought not to be sent to him, for instance, if he should assert that that judge is hostile to him.
§40.12.9.1Idem dicemus et si duo pluresue domini esse dicantur et quidam praesto sint, quidam aberint.
We shall say the same also if two or more persons are said to be the masters, and some are present, while others are absent.
§40.12.9.2Unde in utroque casu dispiciamus, an, si is qui prior egerit uictus sit, prosit ei, quod posterior uicerit, uel contra, id est ut, cum omnino alteruter uicerit, prosit etiam alteri, sicut prodest heredi liberti, quod in fraudem patroni serui manumissi sint.
Therefore, in both cases let us consider whether, if the one who sued first is defeated, the fact that the one who sued later wins benefits him, or vice versa; that is, so that, when either of them has won at all, it also benefits the other, just as it benefits the heir of a freedman that slaves were manumitted in fraud of the patron.
si cui placeat prodesse, consequens est, ut, cum idem petat, exceptioni rei indicatae obiciatur replicatio: si cui uero placeat non prodesse, is habebit sequentem dubitationem, utrum id, in quo quis uictus est, pullius erit an eius esse debeat, cum quo actum sit, an potius eius qui uicerit? scilicet ut utilis actio detur ei qui uicerit, minime autem praetor pati debeat, ut pro parte quis seruus sit.
If anyone is of the opinion that it does benefit him, the consequence is that, when he sues for the same thing, a replication is opposed to the plea of res judicata. But if anyone is of the opinion that it does not benefit him, he will have the following doubt: whether that in which someone was defeated shall belong to no one, or ought to belong to him with whom the action was brought, or rather to him who has won? To be sure, a useful action is to be granted to him who has won, and the praetor ought by no means to tolerate that anyone should be a slave in part.