restricted access 5. THE PRODUCTION OF DOCUMENTS
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ROOK FORTY-THREE/THE PRODUCTION O F DOCUMENTS 85 For it is penal; and it will not be granted against heirs and similar persons, except for what has come into their hands; but it will be granted in favor of heirs and similar persons. But when someone is prevented from obtaining possession to safeguard legacies or ,fideicommissa , then the action is perpetual and will be granted against the heir, because it is in the power of successors to escape the edict by providing security. 2 PAUL,Edzct, book 59: It makes no difference whether someone is prevented from taking possession in his own name or another's. For the words "for the value of the property" apply to the person of the owner. 1. Similarly, the person who prevented possession is liable, whether he did so in his own name or another's. 3 ULPIAN,Edict, book 68: If someone has been sent to take possession for the purpose of safeguarding ajdeicommissum and is not admitted, he is to be brought into possession by the power of the person who sent him; or if he wishes to employ the interdict, it will follow that the interdict must be said to lie. But it will be better to say that the authorities themselves should carry out their decree extra ordinern by right of their power, sometimes even by military force. 1. A constitzrtio of Antoninus ruled that in certain circumstances someone may even be awarded the goods of an heir. So if he is not admitted to these goods, it must be said that this action effectively lies in his favor. Otherwise, he can have recourse to execution extra ordinem. 2. The praetor can send an unborn child to take possession. This interdict is one both of prohibition and restitution. But if the woman wishes to make use of an actio infactum, after the manner of creditors, rathcr than the interdict, it is to be known that she may bring one. 3. If a woman is alleged to have come into possession by reason of a false claim on the grounds that she is not pregnant or not pregnant by such a one, or if something is alleged about the woman's status, then according to a letter of the deified Hadrian in conformity with the presumption of the Carbonian Edict, the praetor promises possession to the unborn child. 4 ULPIAN,Edict, book 69: Through an interdict the praetor also comes to the aid of someone whom he has sent to take possession on account of threatened damage, to prevent the use of force against him. 1. The penalty for someone who does not give a promise or security is that his adversary is sent to take possession. So if he gives a promise, or it is not his fault that he does not give one, the interdict will not hold, and the adversary who tries it will be barred by a defense. 2. Against someone who has given no cautio and has not allowed the person sent to take possession to take it, the praetor promises judgment for as much as he would have to pay if a cautio had been furnished in that matter. 3. But he has provided this action for another reason also, in case, at the time when he wished for missio in possessionem, it was impossible to attend the praetor's court, so that if damage was done in the meantime while it was impossible to attend the praetor's court, the sufferer from the damage should have an action. 4. Furthermore, it has been added that if someone sent to take possession is said to have been prevented from taking it for any other reason, he should be entitled to an actio infactum. 5 THE PRODUCTION OF DOCUMENTS 1 ULPIAN,Edict, book 68: The praetor says: "Such documents as Lucius Titius is said to have left relevant to the question of his will, if these are in your possession or you have fraudulently arranged for them to leave it, you must produce them for such a one. And if any memorandum or anything else is said to have been left, I shall include them in this decree." 1. If anyone should happen to admit that the will is in his possession, he is to be ordered to produce it, and time is to be given him if he cannot produce it at once. But if he says he cannot or should not produce it...


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