.
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]
Dictionary of Greek and Roman Antiquities
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