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p639 Actio ad Exhibendum

Article by George Long, M.A., Fellow of Trinity College
on p639 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

EXHIBENDUM, ACTIO AD. This action was introduced mainly with respect to vindicationes or actions about property. "Exhibere" is defined to be "facere in publico potestatem, ut ei qui agat experiundi sit copia." This was a personal action, and he had the right of action who intended to bring an actio in rem. The actio ad exhibendum was against a person who was in possession of the thing in question, or had fraudulently parted with the possession of it; and the object was the production of the thing for the purpose of its being examined by the plaintiff. The thing, which was of course a movable thing, was to be produced at the place where it was at the commencement of the legal proceedings respecting it; but it was to be taken to the place where the action was tried, at the cost and expense of the plaintiff.

The action was extended to other cases: for instance, to cases when a man claimed the privilege of taking his property off another person's land, that other person not being legally bound to restore the thing, though bound by this action to allow the owner to take it; and to some cases where a man had in his possession something in which his own and the plaintiff's property were united, as a jewel set in the defendant's gold, in which case there might be an actio ad exhibendum for the purpose of separating the things (ut excludatur ad exhibendum agi potest, Dig. 10. tit. 4 s6).

If the thing was not produced when it ought to have been, the plaintiff might have damages for loss caused by such non-production. This action would lie to produce a slave, in order that he might be put to the torture to discover his confederates.

The ground of the right to the production of a thing, was either property in the thing or some interest; and it was the business of the judex to p511declare whether there was sufficient reason (justa et probabilis causa) for production. The word "interest" was obviously a word of doubtful import. Accordingly, it was a question if a man could bring this action for the production of his adversary's accounts, though it was a general rule of law that all persons might have this action who had an interest in the thing to be produced (quorum interest); but the opinion as given in the Digest (Dig. 10 tit. 4 s19) is not favourable to the production on the mere ground of its being for the plaintiff's advantage. A man might have this action though he had no vindicatio; as, for instance, if he had a legacy given to him of such a slave as Titius might choose, he had a right to the production of the testator's slaves in order that Titius might make the choice; when the choice was made, then the plaintiff might claim the slave as his property, though he had no power to make the choice. If a man wished to assert the freedom of a slave (in libertatem vindicare), he might have this action.

This action was, as it appears, generally in aid of another action, and for the purpose of obtaining evidence; in which respect it bears some resemblance to a Bill of Discovery in Equity.

(Mühlenbruch, Doctrina Pandectarum; Dig. 10 tit. 4).


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