[PAULUS libro tertio epitomarum Alfeni digestorum. ] §6.1.58.prA quo seruus petebatur et eiusdem serui nomine cum eo furti agebatur, quaerebat, si utroque iudicio condemnatus esset, quid se facere oporteret.
[PAULUS in the third book of the Epitomes of Alfenus' Digests.]\n\nA person from whom a slave was claimed and against whom an action for theft was brought on account of the same slave, asked what he ought to do if he should be condemned in both trials.
si prius seruus ab eo euictus esset, respondit, non oportere iudicem cogere, ut eum traderet, nisi ei satisdatum esset, quod pro eo homine iudicium accepisset: si quid ob eam rem datum esset, id recte praestari.
He replied that if the slave was first evicted from him, the judge ought not to compel him to deliver him, unless security was given to him for having accepted the trial on behalf of that slave; and if anything should be paid on that account, it should be properly made good.
sed si prius de furto iudicium factum esset et hominem noxae dedisset, deinde de ipso homine secundum petitorem iudicium factum esset, non debere ob eam rem iudicem, quod hominem non traderet, litem aestimare, quoniam nihil eius culpa neque dolo contigisset, quo minus hominem traderet.
But if judgment was first given on the theft and he had surrendered the slave as noxa, and thereafter judgment was given concerning the slave himself in favor of the claimant, the judge ought not to assess the damages on the ground that he did not deliver the slave, since it was not due to any fault or fraud on his part that he did not deliver the slave.