[ULPIANUS libro uicensimo quarto ad edictum. ] §10.4.5.prCelsus scribit: si quis merces, quas exuehendas 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, uerum est aut horrearium possidere aut certe ille est, qui possit exhibere.
[Ulpian in the twenty-fourth book on the Edict.] Celsus writes: if anyone has placed in a warehouse goods which he hired to be carried away, an action for production can be brought against the hirer; likewise, if upon the death of the hirer an heir exists, the action must be brought against the heir; but if there is no heir, it must be brought against the warehouseman; for if, he says, they are possessed by no one, it is true either that the warehouseman possesses them, or at least he is the one who can produce them.
idem ait: quomodo autem possidet qui uehendas conduxit? an quia pignus tenet? — quae species ostendit etiam eos, qui facultatem exhibendi habent, ad exhibendum teneri.
The same writer says: but how does he who hired goods to be carried possess them? Is it because he holds a pledge? — which case shows that even those who have the capacity to produce are held liable to produce.
§10.4.5.1Iulianus autem ita scribit ad exhibendum actione teneri eum, qui rerum uel legatorum seruandorum causa in possessione sit, sed et eum, qui usus fructus nomine rem teneat, quamuis nec hic utique possideat.
Julian, however, writes thus: that he is held liable to the action for production who is in possession for the purpose of preserving goods or legacies, and also he who holds the thing in the name of a usufruct, although even the latter does not strictly possess it.
inde Iulianus quaerit, quatenus hos oporteat exhibere: et ait priorem quidem sic, ut actor possessionem habeat, is autem cum quo agetur rei seruandae causa sit in possessione: eum uero qui usum fructum habeat sic, ut actor rem possideat, is cum quo agetur utatur fruatur.
Hence Julian asks to what extent these persons ought to produce; and he says that the former indeed should do so in such a way that the plaintiff has the possession, while the one against whom the action is brought is in possession for the purpose of preserving the thing; but he who has the usufruct should do so in such a way that the plaintiff possesses the thing, while the one against whom the action is brought uses and enjoys it.
§10.4.5.2Idem Iulianus scribit emptorem, qui ruta caesa non restituit, ad exhibendum teneri in quantum in litem iurauero: sed ibi adicit, si emptor possideat aut dolo fecit quo minus possideat.
The same Julian writes that a buyer who has not restored the "ruta caesa" is held liable for production up to the amount that I shall have sworn to in the lawsuit; but he adds there: if the buyer possesses them or has acted with fraud so as not to possess them.
§10.4.5.3Item 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.
Likewise, Celsus writes that concerning the manure which you have piled up on my vacant lot, you can through the action for production achieve that you take it away, provided however that you take it all away; but otherwise you cannot.
§10.4.5.4Sed et si ratis delata sit ui fluminis in agrum alterius, posse eum conueniri ad exhibendum Neratius scribit.
But also, if a raft has been carried down by the force of a river onto the land of another, Neratius writes that the landowner can be sued for production.
unde quaerit Neratius, utrum de futuro dumtaxat damno an et de praeterito domino agri cauendum sit, et ait etiam de praeterito caueri oportere.
Wherefore Neratius asks whether security must be given to the owner of the land only for future damage or also for past damage, and he says that security ought to be given also for past damage.
§10.4.5.5Sed et si de ruina aliquid in tuam aream uel in tuas aedes deciderit, teneberis ad exhibendum, licet non possideas.
But also, if anything has fallen from a collapse onto your vacant lot or into your house, you will be held liable for production, even though you do not possess it.
§10.4.5.6Item si quis facultatem restituendi non habeat, licet possideat, tamen ad exhibendum non tenebitur, ut puta si in fuga seruus sit: ad hoc plane solum tenebitur, ut caueat se exhibiturum, si in potestatem eius peruenerit.
Likewise, if anyone does not have the capacity to restore, even though he possesses, he will nevertheless not be held liable for production, as for example if a slave is in flight; clearly, he will be held liable only to this extent, to give security that he will produce him if he comes into his power.
sed et si non sit in fuga, permiseris autem ei ubi uelit morari, idem erit dicendum, aut peregre a te missus sit, uel in praediis tuis agat, ad hoc solum teneberis, ut caueas.
But also if the slave is not in flight, but you have permitted him to stay wherever he wishes, or if he has been sent abroad by you, or is active on your estates, the same must be said, and you will be held liable only to this extent, to give security.