[ULPIANUS libro uicensimo tertio ad edictum. ] §9.4.21.prQuotiens dominus ex noxali causa conuenitur, si nolit suscipere iudicium, in ea causa res est, ut debeat noxae dedere eum, cuius nomine iudicium non suscipitur: aut si id non faciat, iudicium suscipiet omnimodo, sed non alias condemnabitur, quam si in potestate habeat doloue malo fecerit, quo minus haberet.
[ULPIANUS, Book 23 of the Commentary on the Edict] Whenever an owner is sued on account of a noxal cause, if he does not wish to accept the joinder of issue, the situation is such that he must surrender for noxa the person in whose name the joinder of issue is not accepted; or if he does not do this, he shall by all means accept the joinder of issue, but he shall not be condemned otherwise than if he has the person in his power or has acted with dolo malo so that he should not have him.
§9.4.21.1Eos, quorum nomine noxali iudicio agitur, etiam absentes defendi posse placuit, sed hoc ita demum, si proprii sint serui: nam si alieni, praesentes esse oportet, aut si dubitetur, utrum proprii sint an alieni.
It has been decided that those in whose name an action is brought in a noxal judgment can be defended even when absent, but this only if they are the owner's own slaves; for if they belong to another, they must be present, or also if it is doubted whether they are one's own or another's.
quod ita puto accipiendum, ut si constet uel bona fide seruire, etiam absentes possint defendi.
I think this should be understood in such a way that if it is clear that they serve in good faith, they can be defended even when absent.
§9.4.21.2Praetor ait: 'Si is in cuius potestate esse dicetur negabit se in sua potestate seruum habere: utrum actor uolet, uel deierare iubebo in potestate sua non esse neque se dolo malo fecisse, quo minus esset, uel iudicium dabo sine noxae deditione. ' §9.4.21.3'In potestate' sic accipere debemus, ut facultatem et potestatem exhibendi eius habeat: ceterum si in fuga sit uel peregre, non uidebitur esse in potestate.
The praetor says: "If he who is said to have the slave in his power denies that he has the slave in his power, I will, according to what the plaintiff prefers, either order him to swear that the slave is not in his power and that he has not acted with dolo malo so that he should not be, or I will grant an action without the option of noxal surrender." We must understand "in power" in such a way that he has the capacity and power to produce him; however, if the slave is in flight or abroad, he will not be deemed to be in power.
§9.4.21.4Quod si reus iurare nolit, similis est ei, qui neque defendit absentem neque exhibet: qui condemnantur quasi contumaces.
But if the defendant is unwilling to swear, he is similar to one who neither defends an absent person nor produces him; and such persons are condemned as contumacious.
§9.4.21.5Si tutor uel curator extent, ipsi iurare debent in potestate domini non esse: si autem procurator sit, dominus ipse iuret necesse est.
If a guardian or curator is present, they themselves must swear that the slave is not in the power of the owner; but if there is an agent, it is necessary for the owner himself to swear.
§9.4.21.6Si iusiurandum exegit actor reusque iurauit, deinde postea noxali uelit actor experiri, uidendum est, an exceptio iurisiurandi debeat aduersus actorem dari.
If the plaintiff demanded the oath and the defendant swore, and then afterwards the plaintiff wishes to sue on a noxal action, we must see whether the defense of the oath ought to be granted against the plaintiff.
et Sabinus putat non esse dandam, quasi de alia re sit iuratum, hoc est tunc non fuisse in potestate: modo uero cum in potestate deprehendatur, de facto eius posse agi.
And Sabinus thinks that it should not be granted, on the ground that the oath was taken about another matter, that is, that the slave was not in his power at that time; but when he is now found to be in his power, an action can be brought on account of his deed.
Neratius quoque dicebat post exactum iusiurandum posse actorem detracta noxae deditione experiri, si modo hoc contendat, posteaquam iuratum est coepisse in potestate habere.
Neratius also used to say that after the oath has been demanded, the plaintiff can sue with the option of noxal surrender removed, provided only that he contends that the owner began to have the slave in his power after the oath was taken.