[PAULUS libro octauo decimo ad edictum. ] §9.4.22.prSi seruus depositus uel commodatus sit, cum domino agi potest noxali actione: ei enim seruire intellegitur et, quod ad hoc edictum attinet, in potestate eius est, maxime si copiam habeat reciperandi hominis.
[PAULUS, Book 18 of the Commentary on the Edict] If a slave has been deposited or lent, an action can be brought against the owner by a noxal action; for he is understood to serve him and, as far as this edict is concerned, he is in his power, especially if he has the opportunity of recovering the slave.
§9.4.22.1Is qui pignori accepit uel qui precario rogauit non tenetur noxali actione: licet enim iuste possideant, non tamen opinione domini possident: sed hos quoque in potestate domini intellegi, si facultatem repetendi eos dominus habeat.
He who has received a slave in pledge, or he who has requested a slave on precarious tenancy, is not held liable to a noxal action; for although they possess lawfully, they do not, however, possess with the intention of an owner; but it is understood that these also are in the power of the owner, if the owner has the capacity of recovering them.
§9.4.22.2Quid est habere facultatem repetendi? habeat pecuniam, ex qua liberari potest: nam non debet cogi uendere res suas, ut soluat pecuniam et repetat seruum.
What is to have the capacity of recovering? That he has the money by which the slave can be released; for he ought not to be compelled to sell his own property in order to pay the money and recover the slave.
§9.4.22.3Dominus, qui seruum in sua potestate esse confitetur, aut exhibere eum debet aut absentem defendere: quod nisi faciat, punitur atque si praesentem non noxae dederit.
An owner who confesses that the slave is in his power must either produce him or defend him in his absence; and if he does not do this, he is punished just as if he had not surrendered for noxa the slave who was present.
§9.4.22.4Si negavit dominus in sua potestate esse servum, permittit praetor actori arbitrium, utrum iureiurando id decidere an iudicium dictare sine noxae deditione uelit, per quod uincet, si probauerit eum in potestate esse uel dolo eius factum, quo minus esset: qui autem non probauerit in potestate aduersarii esse seruum, rem amittit.
If the owner has denied that the slave is in his power, the praetor grants the plaintiff the choice of whether he wishes to settle the matter by an oath or to dictate an action without noxal surrender, through which he will win if he proves that the slave was in the owner's power or that it was brought about by the owner's dolo malo so that he should not be; but he who does not prove that the slave is in the power of the adversary loses his case.