[PAULUS libro uicensimo primo ad edictum. ] §6.1.21.prSi a bonae fidei possessore fugerit seruus, requiremus, an talis fuerit, ut et custodiri debuerit.
[PAULUS, in the twenty-first book on the Edict.] If a slave should escape from a bona fide possessor, we shall inquire whether he was of such a character that he ought to have been guarded.
nam si integrae opinionis uidebatur, ut non debuerit custodiri, absoluendus est possessor, ut tamen, si interea eum usuceperat, actionibus suis cedat petitori et fructus eius temporis quo possedit praestet.
For if he appeared to be of unimpeachable reputation, so that he did not need to be guarded, the possessor must be acquitted; provided, however, that if in the meantime he had acquired the slave by usucapion, he cedes his actions to the plaintiff and surrenders the fruits of the time during which he possessed him.
quod si nondum eum usucepit, absoluendum eum sine cautionibus, ut nihil caueat petitori de persequenda ea re: quo minus enim petitor eam rem persequi potest, quamuis interim, dum in fuga sit, usucapiat? nec iniquum id esse Pomponius libro trigensimo nono ad edictum scribit.
But if he has not yet acquired him by usucapion, he must be acquitted without securities, so that he gives no security to the plaintiff regarding the pursuit of that thing; for is the plaintiff any less able to pursue that thing, even though in the meantime, while the slave is in flight, the possessor may acquire him by usucapion? Pomponius writes in the thirty-ninth book on the Edict that this is not unfair.
si uero custodiendus fuit, etiam ipsius nomine damnari debebit, ut tamen, si usu eum non cepit, actor ei actionibus suis cedat.
If, however, he ought to have been guarded, the possessor must be condemned even on account of the slave himself; provided, however, that if he did not acquire him by usucapion, the plaintiff cedes his actions to him.
Iulianus autem in his casibus, ubi propter fugam serui possessor absoluitur, etsi non cogitur cauere de persequenda re, tamen cauere debere possessorem, si rem nactus fuerit, ut eam restituat, idque Pomponius libro trigensimo quarto uariarum lectionum probat: quod uerius est.
But Julianus holds that in these cases where the possessor is acquitted on account of the flight of the slave, although he is not compelled to give security regarding the pursuit of the thing, the possessor must nevertheless give security that, if he should obtain the thing, he will restore it; and Pomponius approves of this in the thirty-fourth book of his Various Readings, which is more correct.