EXHIBENDUM
EXHIBENDUM,
ACTIO AD, was a praetorian action
in personam (
Inst. 4.6, 31),
usually of a preliminary character, by which a plaintiff who was unable to
pursue his right by legal process without the production of a thing could
enforce such production upon any person who was able to make it (
“exhibere est facere in publico potestatem, ut ei, qui agat,
experiundi sit copia,”
Dig. 10,
4,
2); and it was immaterial whether that person was
owner, or had civil or merely natural possession, of the thing in question
(Dig. ib. 3, 15), or had fraudulently parted with the possession of it (ib.
5, 2); but it was essential that the plaintiff should have a pecuniary or
proprietary interest in the production, or else the action would not lie:
“haec actio ei creditur competere, cujus pecuniariter
interest,” Dig. ib. 13. The right to which the
actio ad exhibendum was subsidiary might be
in personam, as where a plaintiff wishes to bring a
noxal action on a delict (such as theft) committed by a slave, but is not
sure of the precise slave who committed the offence (ib. 3, 7): but usually
it was
in rem: e.g. a legatee has a choice
under a will from several similar objects, which he wants to see before he
can choose (ib. 3, 6): the plaintiff's property is on the land of another
who will not allow him to enter and remove it (ib. 5, 4); or it is connected
or mixed with a
res aliena (e.g. a jewel set in
the defendant's gold) and must be separated before he can bring his real
action (ib. 6, 7).
In default of production the defendant would be condemned in damages (Gaius,
4.51); the action was one of those known as
arbitrariae; i.e. under the formulary system of procedure, the
judge, having found that the plaintiff was entitled to production, would
tell the defendant that if he did not do what was required he would have to
pay such sum as the plaintiff deposed on oath the production was worth to
him (
jus jurandum in litem); but under the
later law, if it was in the power of the defendant to produce the required
object, he would be compelled to do so
manu
militari. It was a question whether a man could bring this action
for the production of his adversary's accounts, though the opinion given by
Paulus in
Dig. 10,
4,
19, is not favourable to it, on the mere ground of
its being for the plaintiff's advantage.
In general the
actio ad exhibendum was (as has
been said) preliminary and auxiliary to another; and from this point of view
it bears some resemblance to the old Bill of Discovery in English Courts of
Equity. In some cases, however, it gave by itself full satisfaction to the
plaintiff: viz. where the thing was not forthcoming, and the plaintiff got
damages equivalent to any advantage which the production could have given
him; and where the plaintiff's property was on land of the defendant, who
did not deny his right to it, but merely refused to let him in for the
purpose of removal (
Dig. 19,
1,
5,
2-
5;
19,
5,
16).
(
Dig. 10,
4; Cod. 3, 42;
Einert,
Tract. de act. ad exhib., Lips., 1816; Buhler,
Die Actio ad exhibendum, Leipzig, 1859;
Demelius,
Exhibitionspflicht; Von Weveld,
Zur Lehre
vom gerichtlichen Augenschein; Vangerow,
Lehrbuch der
Pandekten, vol. 3.707.)
[
J.B.M]