[PAULUS libro uicensimo secundo ad edictum. ] §9.4.19.prSi in re communi mea et tua damnum nobis dederit Titii seruus, si cum eo agemus, erit noxali Aquiliae actioni locus, ne damnatus in solidum singulis noxae dedere cogatur.
[PAULUS, Book 22 of the Commentary on the Edict] If a slave of Titius has caused damage to us in a property common to you and me, and if we bring an action against him, there will be room for a noxal action under the Lex Aquilia, lest the condemned person be compelled to surrender the slave for the noxa in solidum to each individual.
sed potest dici, quasi unius damnum sit et una obligatio, aut utriusque pecuniam sufferendam aut officio iudicis simul utrisque noxae dedendum: sed et si alterutri nostrum in solidum noxae deditus fuerit et ob id ab utroque dominus sit absolutus, recte dicitur eum, cui noxae deditus sit, alteri teneri communi diuidundo iudicio, ut communicet seruum noxae sibi deditum, cum ob rem communem aliquid ad socium peruenerit.
But it can be said, as if it were a single damage and a single obligation, either that the money of both should be paid, or that by the office of the judge the slave should be surrendered for the noxa to both at the same time. But also, if the slave has been surrendered for the noxa in solidum to either of us, and because of this the owner has been absolved by both, it is rightly said that the one to whom the slave was surrendered is bound to the other by the action for dividing common property, so that he may share the slave surrendered to him for the noxa, since something has come to the partner on account of the common property.
§9.4.19.1Si serui, in quo usus fructus alienus est, dominus proprietatis operas conduxerit, uerba efficiunt, ut cum noxae deditione damnetur.
If the owner of the property in a slave in whom another has a usufruct has hired his services, the words of the edict bring it about that he is condemned with the option of noxal surrender.
§9.4.19.2Si seruus tuus nauem exercuerit eiusque uicarius et idem nauta in eadem naue damnum dederit, perinde in te actio danda est ac si is exercitor liber et hic uicarius seruus eius esset, ut de peculio serui tui ad noxam dedere uicarium damneris: ut tamen, si serui tui iussu uel sciente et patiente eo damnum uicarius dederit, noxalis actio serui tui nomine esse debeat.
If your slave has operated a ship, and his vicarius, who is also a sailor on the same ship, has caused damage on that same ship, an action must be given against you just as if that operator were a free man and this vicarius were his slave, so that you are condemned to surrender the vicarius for the noxa to the extent of the peculium of your slave; provided, however, that if the vicarius has caused the damage by the order of your slave or with his knowledge and permission, there must be a noxal action in the name of your slave.
idemque sit etiam, si nautam facere iusserit.
And the same should hold also if he ordered him to be made a sailor.