Ad exhibendum
(Concerning the Action for Production.)
1 Ulpianus libro vicensimo quarto ad edictum. Haec actio perquam necessaria est et vis eius in usu cottidiano est et maxime propter vindicationes inducta est.
1 Ulpianus, On the Edict, Book XXIV. This action is very necessary, it is employed every day; and it was introduced principally on account of suits for the recovery of property.
2 Paulus libro vicensimo primo ad edictum. Exhibere est facere in publico potestatem, ut ei qui agat experiundi sit copia.
2 Paulus, On the Edict, Book XXI. To “produce” is to place property publicly in the power of another, so that he who brings a suit may have an opportunity for trying it,
3 Ulpianus libro vicensimo quarto ad edictum. In hac actione actor omnia nosse debet et dicere argumenta rei de qua agitur. 1Qui ad exhibendum agit, non utique dominum se dicit nec debet ostendere, cum multae sint causae ad exhibendum agendi. 2Praeterea in hac actione notandum est, quod reus contumax per in litem iusiurandum petitoris damnari possit ei iudice quantitatem taxante. 3Est autem personalis haec actio et ei competit qui in rem acturus est qualicumque in rem actione, etiam pigneraticia Serviana sive hypothecaria, quae creditoribus competunt. 4Sed et usum fructum petituro competere ad exhibendum Pomponius ait. 5Sed et si quis interdicturus rem exhiberi desideret, audietur. 6Item si optare velim servum vel quam aliam rem, cuius optio mihi relicta est, ad exhibendum me agere posse constat, ut exhibitis possim vindicare. 7Si quis noxali iudicio experiri velit, ad exhibendum ei actio est necessaria: quid enim si dominus quidem paratus sit defendere, actor vero destinare non possit nisi ex praesentibus, quia aut servum non recognoscit aut nomen non tenet? nonne aequum est ei familiam exhiberi, ut noxium servum adgnoscat? quod ex causa debet fieri ad designandum eum, cuius nomine noxali quis agit, recensitione servorum facta. 8Si quis extra heredem tabulas testamenti vel codicillos vel quid aliud ad testamentum pertinens exhiberi velit, dicendum est per hanc actionem agendum non esse, cum sufficiunt sibi interdicta in hanc rem competentia: et ita Pomponius. 9Sciendum est autem non solum eis quos diximus competere ad exhibendum actionem, verum ei quoque, cuius interest exhiberi: iudex igitur summatim debebit cognoscere, an eius intersit, non an eius res sit, et sic iubere vel exhiberi, vel non, quia nihil interest. 10Plus dicit Iulianus, etsi vindicationem non habeam, interim posse me agere ad exhibendum, quia mea interest exhiberi: ut puta si mihi servus legatus sit quem Titius optasset: agam enim ad exhibendum, quia mea interest exhiberi, ut Titius optet et sic vindicem, quamvis exhibitum ego optare non possim. 11Si mecum fuerit actum ad exhibendum, ego ob hoc, quod conventus sum ad exhibendum actione, agere ad exhibendum non possum, quamvis videatur interesse mea ob hoc, quod teneor ad restituendum. sed hoc non sufficit: alioquin et qui dolo fecit quo minus possideret poterit ad exhibendum agere, cum neque vindicaturus neque interdicturus sit, et fur vel raptor poterit: quod nequaquam verum est. eleganter igitur definit Neratius iudicem ad exhibendum hactenus cognoscere, an iustam et probabilem causam habeat actionis, propter quam exhiberi sibi desideret. 12Pomponius scribit eiusdem hominis nomine recte plures ad exhibendum agere posse: forte si homo primi sit, secundi in eo usus fructus sit, tertius possessionem suam contendat, quartus pigneratum sibi eum adfirmet: omnibus igitur ad exhibendum actio competit, quia omnium interest exhiberi hominem. 13Ibidem subiungit iudicem per arbitrium sibi ex hac actione commissum etiam exceptiones aestimare, quas possessor obicit, et si qua tam evidens sit, ut facile repellat agentem, debere possessorem absolvi, si obscurior vel quae habeat altiorem quaestionem, differendam in directum iudicium re exhiberi iussa: de quibusdam tamen exceptionibus omnimodo ipsum debere disceptare, qui ad exhibendum actione iudicat, veluti pacti conventi, doli mali, iurisiurandi reique iudicatae. 14Interdum aequitas exhibitionis efficit, ut, quamvis ad exhibendum agi non possit, in factum tamen actio detur, ut Iulianus tractat. servus, inquit, uxoris meae rationes meas conscripsit: hae rationes a te possidentur: desidero eas exhiberi. ait Iulianus, si quidem mea charta scriptae sint, locum esse huic actioni, quia et vindicare eas possum: nam cum charta mea sit, et quod scriptum est meum est: sed si charta mea non fuit, quia vindicare non possum, nec ad exhibendum experiri: in factum igitur mihi actionem conpetere. 15Sciendum est adversus possessorem hac actione agendum non solum eum qui civiliter, sed et eum qui naturaliter incumbat possessioni. denique creditorem, qui pignori rem accepit, ad exhibendum teneri placet:
3 Ulpianus, On the Edict, Book XXIV. In this proceeding the plaintiff ought to know everything, and to state all the facts relating to the property which is the subject of the action. 1A party litigant who institutes proceedings for the production of property does not, in fact, state that he is the owner, nor is he obliged to prove this, as there are many causes for bringing an action of this kind. 2Moreover, it should be noted in this action that where the defendant is contumacious, judgment based on the oath of the plaintiff may be rendered against him, the amount to be decided by the judge. 3This action is a personal one, and he is entitled to it who is about to bring a suit in rem, no matter what kind of a suit it may be, whether the Servian Action on a pledge, or an hypothecary action, both of which can be brought by creditors. 4Pomponius says, however, that where a man is about to bring suit for an usufruct he is entitled to an action for production. 5Moreover, where anyone who is about to apply for an interdict asks that the property be produced, he shall be heard. 6Moreover, if I desire to select a slave or any other property, the right to choose which has been bequeathed to me; it is established that I can bring an action for production, and when the property is produced, that I can bring suit for recovery of the same. 7Where anyone wishes to institute proceedings by means of a noxal action, an action for the production of the property is necessary; for, in fact, where the owner of the slave is ready to make a defence, and the plaintiff cannot designate the slave unless he is present, either because he does not recollect him, or does not have his name; is it not just that the entire body of slaves should be produced before him, in order that he may pick out the one who committed the offence? Therefore, this should be done, where proper cause is shown, in order that the party with reference to whom the action is brought may be designated after a survey of the slaves is taken. 8Where anyone besides the heir wishes the will, or the codicils, or anything else relating to the will to be produced, it should be held that this cannot be done by means of this action, since the interdicts relating to such matters will be sufficient for the party; and this was the opinion of Pomponius. 9It must be remembered, however, that not only those persons whom we have mentioned are entitled to the action for production, but also anyone who has an interest in having the production made; hence the judge ought to determine in the first place whether the party has an interest, and not whether he is the owner of the property in question; and he should then order it to be produced, or refuse to do so because the party has no interest in the matter. 10Julianus further states that if I have no right of action for recovery, I can still institute proceedings for production, because it is to my interest that this should be done; as, for instance, where a slave is left to me that Titius may choose, for I can bring an action for production, since I have an interest in its being done in order that Titius may make his selection; and I then have an action for recovery, even though I have no right to select a slave that may be produced. 11Where an action for the production of property is brought against me, I cannot bring one for the same purpose merely because I have been sued in the said action; even though it may be held that I am interested, as I am liable for the restoration of the slave. This, however, is not sufficient, for, otherwise, where anyone had managed to fraudulently relinquish possession, he could bring an action for production, even when he did not intend to bring one for recovery, or to proceed by means of an interdict; and either a thief or a robber could do this; which is by no means true. Therefore Neratius very properly states that the judge, in an application for production, must investigate carefully whether the party has a just and probable cause of action by reason of which he desires the property to be produced. 12Pomponius states that several parties may legally bring an action for the production of the identical slave; for instance, where a slave belongs to the first one, the usufruct of the same to the second, and the third contends that he has possession of him, and the fourth alleges that he was pledged to him; hence, all of them are entitled to an action for his production, because all of them have an interest in having the said slave produced. 13The same author adds that the judge, by reason of the authority vested in him on account of this action, can also examine any exceptions which the possessor may interpose, and if any of them shows clearly that the plaintiff is barred, then he who is in possession should be discharged; but if the exception should be obscure, or a more important matter be involved, this should be deferred until the trial takes place, and the property should be ordered to be produced. There are certain exceptions, however, which the judge who is to preside in the action for production should by all means himself determine; for instance, those based upon an informal agreement, on malicious fraud, on an oath, or on a judgment formerly rendered. 14Justice sometimes demands the production of the property so that, although an action for this purpose cannot be brought, an action in factum may be granted; a matter which Julianus refers to. He says a slave who belonged to my wife kept my accounts, you are in possession of said accounts, and I desire them to be produced. He says further if the said accounts are written upon my paper, there is ground for this action, because I can bring suit for said accounts, since if the paper is mine what is written thereon is mine also; but if the paper is not mine, as I cannot bring suit to recover it, I cannot institute proceedings for its production; hence an action in factum will lie in my favor. 15It must be remembered that by this action proceedings can be instituted against the possessor, and not only against him who has civil possession, but also against him who has possession naturally. Finally, it is established that a creditor who has received property in pledge can be compelled to produce the same:
4 Pomponius libro sexto ad Sabinum. nam et cum eo, apud quem deposita vel cui commodata vel locata res sit, agi potest.
4 Pomponius, On Sabinus, Book VI. For the action can be brought against a party with whom property has been deposited, to whom it has been loaned, or by whom it has been rented.
5 Ulpianus libro vicensimo quarto ad edictum. Celsus scribit: si quis merces, quas exvehendas conduxit, in horreo posuit, cum conductore ad exhibendum agi potest: item si mortuo conductore heres existat, cum herede agendum: sed si nemo heres sit, cum horreario agendum: nam si a nullo, inquit, possidentur, verum est aut horrearium possidere aut certe ille est, qui possit exhibere. idem ait: quomodo autem possidet qui vehendas conduxit? an quia pignus tenet? — quae species ostendit etiam eos, qui facultatem exhibendi habent, ad exhibendum teneri. 1Iulianus autem ita scribit ad exhibendum actione teneri eum, qui rerum vel legatorum servandorum causa in possessione sit, sed et eum, qui usus fructus nomine rem teneat, quamvis nec hic utique possideat. inde Iulianus quaerit, quatenus hos oporteat exhibere: et ait priorem quidem sic, ut actor possessionem habeat, is autem cum quo agetur rei servandae causa sit in possessione: eum vero qui usum fructum habeat sic, ut actor rem possideat, is cum quo agetur utatur fruatur. 2Idem Iulianus scribit emptorem, qui ruta caesa non restituit, ad exhibendum teneri in quantum in litem iuravero: sed ibi adicit, si emptor possideat aut dolo fecit quo minus possideat. 3Item Celsus scribit stercus, quod in aream meam congessisti, per ad exhibendum actionem posse te consequi ut tollas, sic tamen ut totum tollas: ceterum alias non posse. 4Sed et si ratis delata sit vi fluminis in agrum alterius, posse eum conveniri ad exhibendum Neratius scribit. unde quaerit Neratius, utrum de futuro dumtaxat damno an et de praeterito domino agri cavendum sit, et ait etiam de praeterito caveri oportere. 5Sed et si de ruina aliquid in tuam aream vel in tuas aedes deciderit, teneberis ad exhibendum, licet non possideas. 6Item si quis facultatem restituendi non habeat, licet possideat, tamen ad exhibendum non tenebitur, ut puta si in fuga servus sit: ad hoc plane solum tenebitur, ut caveat se exhibiturum, si in potestatem eius pervenerit. sed et si non sit in fuga, permiseris autem ei ubi velit morari, idem erit dicendum, aut peregre a te missus sit, vel in praediis tuis agat, ad hoc solum teneberis, ut caveas.
5 Ulpianus, On the Edict, Book XXIV. Celsus states that if anyone who agreed to remove merchandise places it in a warehouse, an action for production based on his contract can be brought against him; and, moreover, if the party making the agreement dies and leaves an heir, the action can be brought against the latter. Where, however, there is no heir, the action can be brought against the keeper of the warehouse; for, if the property is not in the possession of anyone, he says it is evident that either the keeper of the warehouse has it in his possession, or, at all events, it is certain that he can produce it. He also asks, “How can a party be in possession of property who agreed to remove it? Is this because he had a lien on it?” This example shows that even those persons who have the power to produce property are liable to an action for its production. 1Julianus, however, says that in accordance with this rule a person is liable to an action for the production who is in possession for the purpose of preserving property or legacies, as well as he who holds property by reason of an usufruct, even though, in this instance, he by no means has possession of it. Hence Julianus asks to what extent shall such parties produce said property? He answered that the former must do so to enable the plaintiff to have possession, but the party against whom the suit was brought must be in possession in order to preserve the property; and that he who has the usufruct must do so in order that the plaintiff may possess the property, but that he against whom the action is brought may use and enjoy the same. 2Moreover, Julianus says that a purchaser who does not return partially used materials, can be compelled to produce them; the damages being estimated according to the amount that I am willing to swear to; but he adds in the same place: “If the purchaser has possession, or has committed fraud in order to avoid having possession.” 3Celsus also says that if you have piled manure upon my unoccupied land, you can, by an action for production, obtain permission to remove it, on condition, however, that you remove the whole of it, otherwise you cannot do this. 4Moreover, if a boat should be carried by the force of a river upon the field of another party, Neratius holds that the latter can be sued for production. Wherefore, he asks whether the plaintiff must give security to the owner of the land merely with reference to future damage, or for past damage also; and he replies that it must also be given for the damage already committed. 5Where, however, if anything from a fallen building is thrown upon your land, or upon your house, you can be compelled to produce it, even though it may not be in your possession. 6Again, where anyone has not the power to deliver anything, even though he has possession of it, he will not be liable to an action for its production; as for instance, where a slave is a fugitive it is evident that the party will only be liable to give security to produce said slave if at any time he should come into his power. But where he has not taken to flight, but you permit him to live where he wishes, the same rule applies; or if you have sent him on a journey, or you employ him upon your land, you will only be compelled to furnish security.
6 Paulus libro quarto decimo ad Sabinum. Gemma inclusa auro alieno vel sigillum candelabro vindicari non potest, sed ut excludatur, ad exhibendum agi potest: aliter atque in tigno iuncto aedibus, de quo nec ad exhibendum agi potest, quia lex duodecim tabularum solvi vetaret: sed actione de tigno iuncto ex eadem lege in duplum agitur.
6 Paulus, On Sabinus, Book XIV. A jewel which is set in gold belonging to another, or any ornamentation attached to a candlestick belonging to another party cannot be demanded in an action for recovery, but an action can be brought for production in order to have it detached. The rule is different where material is used in a house, as, in this instance, even an action for production will not lie, because the Law of the Twelve Tables forbids the material from being separated; but an action on the ground of material used can be brought for double its value under the same law.
7 Ulpianus libro vicensimo quarto ad edictum. Tigni appellatione omnem materiam in lege duodecim tabularum accipimus, ut quibusdam recte videtur. 1Sed si rotam meam vehiculo aptaveris, teneberis ad exhibendum (et ita Pomponius scribit), quamvis tunc civiliter non possideas. 2Idem et si armario vel navi tabulam meam vel ansam scypho iunxeris vel emblemata phialae, vel purpuram vestimento intexeris, aut bracchium statuae coadunaveris. 3Item municipes ad exhibendum conveniri possunt, quia facultas est restituendi: nam et possidere et usucapere eos posse constat. idem et in collegiis ceterisque corporibus dicendum erit. 4Si quis non possideat litis contestatae tempore, sed postea ante sententiam possidere coeperit, oportere dici putamus debere condemnari, nisi restituat. 5Si quis, cum iudicii accepti tempore possideret, postea sine dolo malo possidere desierit, absolvi eum oportet: quamvis sit, inquit Pomponius, quod ei imputetur, cur non statim restituit, sed passus est secum litem contestari. 6Idem scribit, si quis litis contestatae tempore possederit, deinde desierit possidere, mox coeperit sive ex eadem causa sive ex alia, condemnari eum oportere, nisi restituat. 7Ibidem non male Pomponius iungit eius, qui ad exhibendum egit, utroque tempore interfuisse oportere rem ei restitui, hoc est et quo lis contestatur et quo fit condemnatio: et ita Labeoni placet.
7 Ulpianus, On the Edict, Book XXIV. By the term tignum we understand in the Law of the Twelve Tables every description of material; as is very properly held by certain authorities. 1If you attach my wheel to a vehicle of yours, you can be compelled to produce it—and this was stated by Pomponius—although, strictly speaking, it is not legally in your possession. 2The same rule applies where you attach my plank to your chest or ship, or my handle to your cup, or my ornaments to your bowl, or use my purple for your clothing, or join to your statue an arm which is mine. 3Moreover, a municipality can be sued for production because it has the power of delivery; for it has been settled that it can hold possession and acquire by usucaption. The same rule must be held to apply to societies and other corporate bodies. 4Where the party is not in possession at the time issue is joined, but comes into possession before the decree has been rendered; we think it should be held that judgment should be pronounced against him unless he restores the property. 5Where anyone has possession at the time that issue is joined, and afterwards ceases to have possession without fraudulent intent, he should be discharged; even though, (as Pomponius says) he is to blame because he did not at once make restitution, but permitted issue to be joined against him. 6The same author states that where a party in possession at the time when issue was joined afterwards ceased to have possession, and then came into possession again, either by reason of the same title or of another one; judgment must be rendered against him, unless he delivers up the property. 7Pomponius not improperly adds that the party who brings suit for production must have an interest at both times in the property being delivered to him; that is to say, at the time when issue is joined and when the decision is rendered. This opinion is also held by Labeo.
8 Iulianus libro nono digestorum. Si ad exhibendum actum est cum eo, qui neque possidebat neque dolo malo fecerat quo minus possideret, deinde eo defuncto heres eius possidet rem, exhibere eam cogendus erit. nam si fundum vel hominem petiero et heres ex eadem causa possidere coeperit, restituere cogitur.
8 Julianus, Digest, Book IX. Where an action for production is brought against the party who was neither in possession nor was guilty of fraud to avoid having possession, and after his death his heir has possession of the property, the latter can be compelled to produce it; for if I bring suit against a man for a tract of land, and his heir comes into possession of it under the same title, he can be compelled to surrender it.
9 Ulpianus libro vicensimo quarto ad edictum. Iulianus scribit: si quis hominem quem possidebat occiderit sive ad alium transtulerit possessionem sive ita rem corruperit ne haberi possit, ad exhibendum tenebitur, quia dolo fecit quo minus possideret. proinde et si vinum vel oleum vel quid aliud effuderit vel confregerit, ad exhibendum tenebitur. 1Glans ex arbore tua in fundum meum decidit, eam ego immisso pecore depasco: qua actione possum teneri? Pomponius scribit competere actionem ad exhibendum, si dolo pecus immissi, ut glandem comederet: nam et si glans extaret nec patieris me tollere, ad exhibendum teneberis, quemadmodum si materiam meam delatam in agrum suum quis auferre non pateretur. et placet nobis Pomponii sententia, sive glans extet sive consumpta sit. sed si extet, etiam interdicto de glande legenda, ut mihi tertio quoque die legendae glandis facultas esset, uti potero, si damni infecti cavero. 2Si quis rem fecit ad alium pervenire, videtur dolo fecisse quo minus possideat, si modo hoc dolose fecerit. 3Sed si quis rem deteriorem exhibuerit, aeque ad exhibendum eum teneri Sabinus ait. sed hoc ibi utique verum est, si dolo malo in aliud corpus res sit translata, veluti si ex scypho massa facta sit: quamquam enim massam exhibeat, ad exhibendum tenebitur, nam mutata forma prope interemit substantiam rei. 4Marcellus scribit, si tibi decem nomismata sint sub condicione legata et mihi decem usus fructus pure, deinde heres pendente condicione non exacta cautione decem fructuario solverit, ad exhibendum eum actione teneri, quasi dolo fecerit quo minus possideret: dolus autem in eo est, quod cautionem exigere supersedit a fructuario effectumque, ut legatum tuum evanesceret, cum iam nummos vindicare non possis. ita demum autem locum habebit ad exhibendum actio, si condicio extiterit legati. potuisti tamen tibi prospicere stipulatione legatorum et, si prospexisti, non erit tibi necessaria ad exhibendum actio. si tamen ignarus legati tui a fructuario satis non exegit, dicit Marcellus cessare ad exhibendum, scilicet quia nullus dolus est: succurrendum tamen legatario in factum adversus fructuarium actione ait. 5Quantum autem ad hanc actionem attinet, exhibere est in eadem causa praestare, in qua fuit, cum iudicium acciperetur, ut quis copiam rei habens possit exsequi actione quam destinavit in nullo casu quam intendit laesa, quamvis non de restituendo, sed de exhibendo agatur. 6Proinde si post litem contestatam usucaptum exhibeat, non videtur exhibuisse, cum petitor intentionem suam perdiderit, et ideo absolvi eum non oportere, nisi paratus sit repetita die intentionem suscipere, ita ut fructus secundum legem aestimentur. 7Quia tamen causa petitori in hac actione restituitur, Sabinus putavit partum quoque restituendum, sive praegnas fuerit mulier sive postea conceperit: quam sententiam et Pomponius probat. 8Praeterea utilitates, si quae amissae sunt ob hoc quod non exhibetur vel tardius quid exhibetur, aestimandae a iudice sunt: et ideo Neratius ait utilitatem actoris venire in aestimationem, non quanti res sit, quae utilitas, inquit, interdum minoris erit quam res erit.
9 Ulpianus, On the Edict, Book XXIV. Julianus says that if anyone should kill a slave who is in his possession, or should transfer the possession to another, or should spoil property in such a way that it cannot be held; he will be liable to an action for production of the same, because he acted fraudulently to avoid being in possession. Hence, if he spills or destroys wine, oil, or anything else, he will be liable to this action. 1Acorns from your tree fall upon my land and I turn cattle thereon to pasture them. To what action am I liable? Pomponius states that an action for production will lie if I turned the cattle out with fraudulent design so that they might feed upon the acorns; for even if the acorns were still there, and I should not permit you to remove them, I will be liable to an action for production, just as if anyone were not permitted to remove materials which had been placed upon my land; and we accept the opinion of Pomponius, whether the acorns are still there, or they have been consumed. If they are still there, I will be entitled to an interdict to permit me to gather acorns, so that I may have the power to gather every third day, if I furnish security against threatened injury. 2Where anyone has caused property to come into the possession of another, he is held to have acted fraudulently in order to avoid being in possession; provided he committed the act with malicious intent. 3Where anyone produces property which is in a worse condition than it was previously, Sabinus says that he is still liable to an action for production. This is certainly true where the property was fraudulently changed into another form; as, for instance, where an ingot of metal is made out of a cup; for even though he produces the ingot, he will be liable to the action for production, as the form having been changed, he almost destroys the substance of the property. 4Marcellus states that if ten aurei are bequeathed to you under a certain condition, and the usufruct of the same to me absolutely, and then the heir, while the condition is still pending, and without requiring security, pays the said ten aurei to me, the usufructuary; he will be liable to an action for production, as having acted fraudulently to avoid being in possession. The fraud consists in his neglecting to exact security from the usufructuary, and the result was that your legacy was lost, since you now are not able to bring an action to recover the money. The action for production, however, could only be available if the condition on which the legacy depends takes place. You might, however, have protected yourself by means of a stipulation for the payment of the legacy, and, if you did so, you will have no need of the action for production. If, however, the heir, not being aware that a legacy had been bequeathed to you, did not exact security from the usufructuary, Marcellus says that an action for production will not lie, of course because there was no fraud; but the legatee will be entitled to relief by means of an action in factum against the usufructuary. 5To “produce,” so far as this section is concerned, is to exhibit something in the same condition in which it was when issue was joined, so that the party, having full power to examine the property, can proceed with the action which he intended to bring without the property which he claimed being in any respect injured; even though the suit was brought, not for the purpose of restitution, but for production. 6Hence, if when the party produces the property it has become his by usucaption after issue has been joined, he cannot be considered to have produced it at all, because the plaintiff has lost his case, and therefore the defendant must not be discharged; unless he is ready to answer the claim as referred back to the original day, so that the profit may be estimated in accordance with law. 7For the reason that in this action the plaintiff obtains everything depending upon the property which is the object of the suit, Sabinus holds that the offspring of a female slave should likewise be delivered, whether she was pregnant at the time, or conceived subsequently; and this opinion is also approved by Pomponius. 8In addition to this, any advantages which may have been lost on account of the property not having been produced, or because it was produced too late, should also be considered by the judge; hence Neratius says that the advantage to the plaintiff, and not the actual value of the property, should be estimated, and this advantage, he says, is sometimes of less value than that of the property itself.
10 Paulus libro vicensimo sexto ad edictum. Si optione intra certum tempus data iudicium in id tempus extractum est, quo frustra exhibetur, utilitas petitoris conservetur: quod si per heredem non stetit quo minus exhiberet tempore iudicii accipiendi, absolvendus est heres.
10 Paulus, On the Edict, Book XXVI. Where a right of choice is granted within a certain time, and the trial has been protracted so long that the production will be of no avail, the advantage to which the plaintiff is entitled must be preserved; but if the heir was not to blame because he did not produce the property at the time when issue was joined, he should be discharged.
11 Ulpianus libro vicensimo quarto ad edictum. Sed et si hereditas amissa sit ob hoc, quod servus non exhibeatur, aequissimum est aestimari officio iudicis damnum hereditatis. 1Quo autem loco exhiberi rem oporteat vel cuius sumptibus, videamus. et Labeo ait ibi exhibendum, ubi fuerit cum lis contestaretur, periculo et inpendiis actoris perferendam perducendamve eo loci ubi actum sit. pascere plane servum vestire curare possessorem oportere ait. ego autem arbitror interdum etiam haec actorem agnoscere oportere, si forte ipse servus ex operis vel artificio suo solebat se exhibere, nunc vero cogitur vacare. proinde et si apud officium fuerit depositus exhibendus, cibaria debebit adgnoscere qui exhiberi desideravit, si non solebat possessor servum pascere: nam si solebat, sicuti pascit, ita et cibaria potest non recusare. interdum tamen eo loci exhibere debet suis sumptibus, si forte proponas data opera eum in locum abditum res contulisse, ut actori incommodior esset exhibitio: nam in hunc casum suis sumptibus et periculo debebit exhibere in eum locum ubi agatur, ne ei calliditas sua prosit. 2Si de pluribus rebus quis conveniatur et litis contestatae tempore omnes possedit, licet postea quasdam desierit quamvis sine dolo malo possidere, damnandum, nisi exhibeat eas quas potest.
11 Ulpianus, On the Edict, Book XXIV. But where an estate is lost on account of a slave not being produced, it will be perfectly just for the judge, in the assessment of damages, to take into consideration the injury done to the estate. 1Let us consider where the property must be produced, and at whose expense this shall be done. Labeo says that it should be produced where it was at the time when issue was joined, but it must be transported or led to the place where the proceedings were instituted, at the risk and expense of the plaintiff. He says that it is evident that the party in possession of a slave must furnish him with food and clothing, and take care of him. I hold that sometimes the plaintiff must do this also; where, for example, a slave was accustomed to support himself either by manual labor, or by some trade, and is now compelled to be idle. In like manner, where the slave who is to be produced is placed in charge of the Court, the party who desired him to be produced must be responsible for his food, if his possessor was not accustomed to provide him with it; for if he had been accustomed to do so, then he can not refuse to pay for his maintenance. Sometimes the party in possession is required to produce him at his own expense; as, for instance, where he has placed property in some secret place so that the production of the same might be more inconvenient for the plaintiff; for, in this instance, he must produce the property at his own expense and risk in the place where the proceedings have been instituted, so that his bad faith may not benefit him. 2Where anyone is sued with reference to several things, and was in possession of all of them at the time when issue was joined, even though he may afterwards have relinquished possession of some of them without fraudulent intent; judgment must be given against him, unless he produces all that he can.
12 Paulus libro vicensimo sexto ad edictum. De eo exhibendo, quem quis in libertatem vindicare velit, huic actioni locus esse potest. 1Et filius familias ea actione tenetur, si facultatem rei exhibendae habet. 2Saepius ad exhibendum agenti, si ex eadem causa agat, obstaturam exceptionem Iulianus ait: novam autem causam intervenire, si is, qui vindicandi gratia egisset, post acceptum iudicium eam ab aliquo accepit, et ideo exceptionem ei non officere. item si ei, qui furti acturus ad exhibendum egisset, iterum furtum factum sit. denique si quis optandi gratia ad exhibendum egisset et post litem contestatam alterius testamento optio data sit, ad exhibendum agere potest. 3Si quis ex uvis meis mustum fecerit vel ex olivis oleum vel ex lana vestimenta, cum sciret haec aliena esse, utriusque nomine ad exhibendum actione tenebitur, quia quod ex re nostra fit nostrum esse verius est. 4Si post iudicium acceptum homo mortuus sit, quamvis sine dolo malo et culpa possessoris, tamen interdum tanti damnandus est, quanti actoris interfuerit per eum non effectum, quo minus tunc cum iudicium acciperetur homo exhiberetur: tanto magis si apparebit eo casu mortuum esse, qui non incidisset, si tum exhibitus fuisset. 5Si iusta ex causa statim exhiberi res non possit, iussu iudicis cavere debebit se illo die exhibiturum. 6Heres non quasi heres, sed suo nomine hac actione uti potest: item heres possessoris suo nomine tenetur: igitur non procedit quaerere, an heredi et in heredem danda sit. plane ex dolo defuncti danda est in heredem haec actio, si locupletior hereditas eo nomine facta sit, veluti quod pretium rei consecutus sit.
12 Paulus, On the Edict, Book XXXVI. There is ground for this action where a party is to be produced whose freedom anyone wishes to have established. 1A son under paternal authority is liable to this action, if he has power to produce the property. 2Julianus says that where several actions are brought for production of the same property, and this is done for the same reason, an exception can be pleaded. Where, however, a party brings suit for the recovery of property, and after issue has been joined he receives the property from another person, a new cause of action is introduced, and therefore he cannot avail himself of an exception. Again, where anyone is about to bring suit against a party for theft and institutes proceedings for production, and the property is stolen a second time, the same principle will apply. Finally, where a party institutes proceedings for production in order that a choice may be made, and after issue has been joined the right to choose is given to him by the will of some one else, he can bring another action for production. 3Where anyone makes must out of my grapes, or oil out of my olives, or clothing out of my wool, being aware that these things belong to another; he will be liable to an action for production with reference to both, because what is made out of our property is certainly ours. 4Where a slave dies after issue has been joined, even though this happens without the malicious fraud or negligence of the possessor; still, judgment sometimes should be rendered against him to an amount equal to the benefit which would have accrued to the plaintiff if nothing should be done by the possessor to prevent the slave from being produced in court when issue was joined; and so much the more is this the case if it appears that he died on account of some accident which would not have happened if he had been produced at the time. 5Where property cannot be produced immediately for some good reason, the party must furnish security by order of court, that he will produce it upon a specified day. 6An heir can make use of this proceeding in his own name, but not while acting as heir. The heir of a possessor is also liable on his own account. Hence, it is not worth while to ask whether the action can be granted either to an heir or against one. It is evident that this action should be granted against an heir where the deceased had been guilty of fraud, if the estate has become more valuable on this account; for instance, where the heir obtained the price of the property.
13 Gaius libro ad edictum praetoris urbani titulo de liberali causa. Si liber homo detineri ab aliquo dicatur, interdictum adversus eum, qui detinere dicitur, de exhibendo eo potest quis habere: nam ad exhibendum actio in eam rem inutilis videtur, quia haec actio ei creditur competere, cuius pecuniariter interest.
13 Gaius, On the Edict of the Urban Prætor; Title, Cases Relating to Liberty. Where a freeman is said to be detained by anyone, an interdict is available against him who is said to detain him for the purpose of compelling him to produce him; as an action for his production is held to be of no force in a case of this kind, because it is considered to lie only in favor of one who has a pecuniary interest.
14 Pomponius libro quarto decimo ad Sabinum. Si vir nummos ab uxore sibi donatos, sciens suos factos non esse, pro re empta dederit, dolo malo fecit quo minus possideat et ideo ad exhibendum actione tenetur.
14 Pomponius, On Sabinus, Book XV. Where a husband has received money as a gift from his wife, and, knowing that it did not become his, paid it out for the purchase of some article, he acted fraudulently to avoid being in possession, and therefore is liable to an action for production.
15 Idem libro octavo decimo ad Sabinum. Thensaurus meus in tuo fundo est nec eum pateris me effodere: cum eum loco non moveris, furti quidem aut ad exhibendum eo nomine agere recte non posse me Labeo ait, quia neque possideres eum neque dolo feceris quo minus possideres, utpote cum fieri possit, ut nescias eum thensaurum in tuo fundo esse. non esse autem iniquum iuranti mihi non calumniae causa id postulare vel interdictum vel iudicium ita dari, ut, si per me non stetit, quo minus damni infecti tibi operis nomine caveatur, ne vim facias mihi, quo minus eum thensaurum effodiam tollam exportem. quod si etiam furtivus iste thensaurus est, etiam furti agi potest.
15 The Same, On Sabinus, Book XVIII. Treasure which belongs to me is buried in your land and you will not permit me to dig it up. So long as you do not remove it from the place in which it is, Labeo says that I am not legally entitled to an action for theft, or to one for production on this account, because you were not in possession of the said treasure, nor have you acted fraudulently in order to avoid having possession of the same, since it may be that you do not know that the treasure is in your land. It is not unjust, however, where I make oath that I do not assert this claim for purpose of annoyance, if an interdict or a judgment should be granted to the effect that you shall not employ force against me to hinder me from digging up, raising, and removing the said treasure, if I take no steps to prevent security for the avoidance of threatened injury being furnished you, on account of my acts. Where, however, the treasure is stolen property, I am entitled to an action for theft.
16 Paulus libro decimo ad Sabinum. Cum servus tenet aliquid, dominus ad exhibendum suo nomine tenetur: si autem servus citra scientiam domini dolo fecit quo minus habeat, vel furti actio vel de dolo malo noxalis servi nomine danda est, ad exhibendum autem utilis nulla constituenda est.
16 Paulus, On Sabinus, Book X. Where a slave has anything in his possession, his owner is liable in his own name to an action for production; but if the slave without the knowledge of his owner, is guilty of fraud to avoid being in possession, a noxal action for theft, or one for malicious fraud should be granted on account of the slave, but no prætorian action can be brought for production.
17 Ulpianus libro nono de omnibus tribunalibus. Si quis hominem debilitatum exhibeat vel eluscatum, ad exhibendum quidem absolvi debet: exhibuit enim et nihil impedit directam actionem talis exhibitio, poterit tamen agere actor ex lege Aquilia de hoc damno.
17 Ulpianus, On All Tribunals, Book IX. Where a party produces a slave who is disabled or blind, he should be discharged from liability under this action, for he has produced him, and a production of this kind is no impediment to a direct action, for the plaintiff can still bring suit under the Lex Aquilia for the damage sustained.
18 Idem libro sexto opinionum. Solutione chirographo inani facto et pignoribus liberatis nihilo minus creditor, ut instrumenta ad eum contractum pertinentia ab alio quam debitore exhibeantur, agere potest.
18 The Same, Opinions, Book VI. Where a note becomes worthless through payment and pledges are released, the creditor can, nevertheless, bring suit for the production of documents relating to the contract against anyone else than the debtor.
19 Paulus libro quarto epitomarum Alfeni. Ad exhibendum possunt agere omnes quorum interest. sed quidam consuluit, an possit efficere haec actio, ut rationes adversarii sibi exhiberentur, quas exhiberi magni eius interesset. respondit non oportere ius civile calumniari neque verba captari, sed qua mente quid diceretur, animadvertere convenire. nam illa ratione etiam studiosum alicuius doctrinae posse dicere sua interesse illos aut illos libros sibi exhiberi, quia, si essent exhibiti, cum eos legisset, doctior et melior futurus esset.
19 Paulus, Epitomes of Alfenus, Book IV. Any one who is interested can bring an action for production. A certain person, however, made inquiry as to whether this action was available to compel the production of the accounts of his adversary for his inspection, as he alleged had a great interest in having the same produced. The answer was that the law should not be employed to cause annoyance, and that terms ought not to be captiously construed, but that it was proper to consider with what intention the words were uttered; for, in accordance with this principle, if anyone was desirous of studying some branch of knowledge, he might state that he had an interest in such and such books being produced for his benefit, because if they were produced, after he had read them he would become a more learned and a better man.
20 Ulpianus libro secundo regularum. Quaestionis habendae causa ad exhibendum agitur ex delictis servorum ad vindicandos conscios suos.
20 Ulpianus, Rules, Book II. Where an action for production is brought on account of the offences of slaves, torture may be employed for the purpose of making them reveal their accomplices.