dict which forbids the erecting an edifice in a sacred place (sacrum).— Restitutory interdicts are those by which the Prætor directs the giving up of a thing: such is the interdict by which the Prætor commands a person in possession pro hærede or pro possessore of the goods of an hæreditas (1), to give the possession thereof to those entitled by the possessio bonorum: such also is the interdict commanding the restitution of a chattel carried away by force.-Exhibitory interdicts are those by which the Prætor commands the production of some thing or person; e.g., a person whose liberty is in question; a freedman who conceals himself to avoid rendering his patron the services to which he is entitled; a son whom a pater-familias claims as subject to his power, but whom a third party detains (2).

§ 2. It appears, then, that possession was the principal subject-matter regulated by interdicts: and accordingly they were divided as to possession into three classes. They were granted in order to obtain the possession (adipiscendæ possessionis), in order to retain it (retinendæ), or in order to recover it (recuperanda).

§ 3. Of those adipiscendæ possessionis the text mentions the interdictum quorum bonorum and the interdictum Salvianum.

§ 3. The interdict quorum bonorum derives its name from the first words of the formula appropriate to it, and was allowed to the possessores bonorum (B. 3, t. 9), in order that they might get the goods of a hæreditas out of the hands of one in possession thereof pro hærede or pro possessore. The use of this interdict is obvious, when we consider that the petitio hæreditas was available only for the hæredes (proper), i.e., hæredes of the Civil Law: hence the Prætor found it necessary to create this interdict as a means of putting the goods of the hæreditas into the hands of those whom he had nominated bonorum possessores. The interdict quorum bonorum was granted only to those claiming a possession which they had never had (3).

This Interdict was called restitutoria, because the word restituere does not mean simply to restore, but to put another in possession, whether such other acquires a thing for the first time, or recovers it back.

§ 3. The Interdictum Salvianum, called after Salvius, its author, was allowed to the proprietor of country-land (fundus ruralis), in order to his obtaining possession of every thing charged by the farmer as a

(1) He who believes himself, or at least claims to be hæres, by any title whatever, either by the jus civile, or the jus honororium, is possessor pro hærede: a possessor pro possessore is a possessor ut prædo; i. e., who claims no right of property, and has no other title than the mere fact of his

possession.

(2) As to the formula of interdictsprohibitory (D. 43, 8, 2, 20); restitutory, (D. 43, 13, 11); exhibitory (D. 43, 29, 1).

(3) Those who lost possession had recourse to the interdict unde vi.

security for the payment of his rent, quas (colonus) pro mercedibus fundi pignori futuras pepigisset (1).

The Prætor granted (comparata sunt) interdicts retinendæ possessionis in three cases, viz., when the possessor was disturbed and annoyed; when he had reason to fear disturbance; lastly, when he demanded possession during a suit affecting the property (2).

§ 4. An action claiming the property could not be framed (actio petitoria institui) until it was known to whom the possession did or ought to belong; for the vindicatio was required to be brought against the possessor by a person not in possession, but claiming to be proprietor. First, therefore the question of possession had to be settled. And this question was very important; for on it depended another, viz., who should be demandant and who should prove the case for the person allowed to hold possession being defendant in an action of vindicatio, had nothing to prove, and was secured in the possession by the mere fact that the demandant had shown no right to the property.

§ 4. The interdicta retinendæ possessionis in case of immoveables were the interdictum uti possidetis, and in case of moveables the interdict utrubi (3).

The Prætor granted the interdictum uti possidetis to the suitor who, at the time of granting the interdict, had, as against the other (ab adversario), possession non viciosa (4). Possession is viciosa as to the opposite party, when obtained from him by violent or clandestine means, or precario (5) (nec vi, nec clam nec precario).

§ 4. By the old law the interdict utrubi was granted to one who had had, during the greater part of a year, quiet, public, and non-precarious possession as against the opposite party (6). By the new law it was

(1) Probably the actio Serviana was a mere extension of the interdictum Salvianum. In like manner, the prætors seem to have paved the way for the actio Pauliana, by the interdict called fraudatorium, the object of both being the same. The use of exhibitory interdicts will probably account for the origin of the action ad exhibendum.

(2) Theophilus points out all three cases (ad princ. h. t.); Gaius (4, § 158), but the text (§ 4), mentions only the last probably because it was the principal one.

(3) Gaius (4, § 160) has preserved the formula of the interdicts uti possidetis and utrubi, the names of which, like all the others, are derived from the first words of the formula. The former was thus framed uti nunc possidetis, quominus ita possideatis vim fieri veto: "I forbid violence being used, so as to prevent you still possessing as you now possess."

(4) It mattered not whether the posses

sion was viciosa, as to any other than the opposite party. Thus, I should not be refused an interdict against Titius, because I had taken the possession by violence from Mævius.

(5) The precarium was a contract whereby, on request, a grant was made to a man of the right of enjoyment of a thing, such grant being revocable at the grantor's pleasure. The grant being revoked, the holder of the thing was required to restore it, and he might be compelled so to do by the interdict recuperandæ possessionis, called de precario.

(6) The interdict utrubi was thus framed utrubi (with whichever of the two) hic homo, de quo agitur, apud quem majore parte hujus anni fuit, quominus is eum ducat, vim fieri veto (Gaius, 4, § 160). But how could the interdict utrubi be considered as one retinenda possessionis, when he to whom it was granted was not in possession at the time of action brought

granted, like the interdict uti possidetis, to one holding rightful (non viciosa) possession at the time of the action brought.

§ 5. But in order that a man might obtain these interdicts, it was not required that he should personally be holder: for a man was deemed. a possessor not only when he was in personal possession, but also when another held in his name, as in case of a farmer, or a depositarius (1). Possession may even be retained without actual holding, by mere intention, as where a man, though he ceases to hold a thing, retains an intention to return (animus revertendi), and the will not to abandon his possession. But it is clear that intention is never sufficient to transfer or invest a man with possession: there must always be an actual taking of possession, either by a man himself, or by another for him (B. 2, t. 1).

§ 6. As to the interdicts recuperandæ possessionis, the text mentions the interdict unde vi, granted to a man when dispossessed by violence (2). In order to obtain this interdict, the conditions were these:-1. The demandant must have been in possession at the time of the violence committed (ex possessione). 2. He must have lost such possession by an act of violence (3) (dejectus), committed by the opposite party himself or under his direction. 3. The thing possessed must have been an immoveable (fundi vel ædium); but after the Constitution of Valentinian I. (C. viii. 4, 7), which decreed that he, who had used violence to obtain possession of a thing moveable or immoveable, should give it up, and should lose his property therein if he had acquired it, or pay the value thereof, the interdict in question was extended to moveables (§ 6).

§ 6. But the man who used violence to dispossess another was exposed to further penalty. He was subject to the lex Julia (t. 18, 8, post), as to public and private violence.-It was private violence when committed without arms; public violence when committed with arms under arms we include not merely shields, swords, helmets, &c., but sticks and stones.

§ 6. Even if the person expelled had a mere viciosa possessio he was entitled to the interdict unde vi: although a man who obtained possession vi clam or precario was not entitled to the interdict retinendæ pos

Probably, because he who had been in possession during the larger portion of the year was, by a legal fiction, deemed in possession, even after having lost it by the acts of violence complained of.

(1) He who holds for another is in possessione, and not possessor; for a possessor must possess animo domini. Pussessio is threefold: 1. Civil, i. e., recognised by the Twelve Tables, and leading to usucapio. The possessor must have the

animus domini.

2. Prætorian, i. e., recognised by the prætors, and not leading to usucapio, but protected by interdict, e. g., a gift of a wife to a husband (D. 24, 1, 26). 3. Natural, i. e., mere physical holding.

(2) The formula began thus: unde tu illum vi dejecisti (Gaius, 4, § 154).

(3) Either physical or moral, as the threatening of serious and imminent danger.

sessionis. Formerly, where there had been ordinary violence (vis quotidiana), the interdict unde vi was not granted unless the possession had been obtained vi clam or precario from the opposite party; but where there had been vis armata, the interdict was always granted. But this distinction was abolished.

As to interdicts to secure the quasi possessio. The party molested in the exercise of a personal or real servitus had the interdicts uti possidetis, utrubi, unde vi; or special interdicts, e.g., de itinere actuque privato and de fonte, which corresponded with the interdict uti possidetis-the first as to the right of way, the second as to the right of drawing water. § 7. Again interdicts were divided into simple and double.

§ 7. By simple interdicts are meant those in which one only of the parties is demandant and the other is defendant; e.g., the interdicts restitutoria and exhibitoria: for in them he who demands that the thing shall be given up or produced is alone the demandant.

§ 7. By double interdicts are meant those in which each party to the suit is both demandant and defendant (1). Among prohibitory interdicts, some are simple, others double. Amongst the former we find those interdicts whereby the Prætor forbids anything to be done in a sacred (sacrum) place, in a public river, or on the bank (B. 2, t. 1). Amongst the latter we find the interdicts uti possidetis and utrubi. For he who opposes the grant of such interdict, contending that the demandant has no right to keep possession, or, indeed, that he has no such possession as he claims, of necessity implies a demand to be himself put into or kept in possession.

§ 8. The proceeding by interdict was not used during the latter times of the law. Interdicts were abolished by the new organisation of the judicial powers under the Lower Empire. After the magistrates, instead of remitting questions to the judex, themselves went into the whole case and pronounced judgment—in short, after all judicia became extraordinaria-the parties were entitled to judgment to recover possession, or generally to any other remedy obtainable by interdict or otherwise.

TITLE XVI.-OF THE PENALTY IMPOSED ON RASH SUITORS.

Pr. The rashness of suitors was restrained by oaths, by a pecuniary penalty, and by infamia (2).

(1) Such interdicts are called double, just as some actions are called mixed.

(2) To prevent citizens bringing suits too hastily, there had always existed penalties. In the time of the legis actiones, the sacramentum effected this

(t. 6). Under the formula system the sacramentum was replaced by the sponsio and restipulatio-contracts by which one party bound himself to pay the other a fixed sum in case he did not succeed. In the end, however, these stipulations became

§ 1. By a Constitution of Justinian, the suitors had to swear that they believed they had good cause of action: and their advocates had to do likewise.

§ 1. He who lost his suit was condemned to pay the other the damages and the costs (impensas litis) incurred. Moreover, in some cases an obstinate defendant was condemned to the double or triple value (duplum aut triplum): as where a man denied (inficiantem) the fact of a deposit having been made ex quibusdam casibus, or denied a damnum injuria, or delayed paying legacies made to religious houses until he was sued (1).

§ 2. Infamia was incurred by a rash suitor when, for instance, the defendant was condemned in an actio furti, or vi bonorum raptorum, or injuria, or de dolo, or when he was condemned in direct (2) actions of tutela, mandatum, depositum, and partnership. Observe, however, that in these last cases infamy was incurred only by judgment of condemnatio having been pronounced: whereas, if the action arose out of theft, rapina or injuria, the infamy which in such cases resulted, rather from the wrongful act than from the judgment, was incurred by the mere agreement (pacti) to commit the offence: for as the text says, there is a great difference between the case of a man who is a debtor by a contract and him who is a debtor by a delict.

An infamous person could not be a witness, nor receive public honours, nor bring forward a public accusation, nor, before Justinian's time, postulare in jure, for another (t. 13, § 11) (3).

§ 3 We may also consider, as one means of restraining rash suits, the fact that the Prætor prohibited certain persons being sued (in jus) without his permission: thus, under a penalty of fifty solidi, he forbad children to sue their ancestors, and freedmen to summon their patrons without his permission (B. 4, t. 6).

mere forms. But a custom was introduced of requiring from the opposite party, juramentum calumniæ, and even of having recourse to a special action, judicium calumniæ, by which, if a man could prove that a suit had been brought merely for vexatious purposes, he was entitled to condemnatio for damages equal to a tenth, or a fourth, of the subject of dispute. This action was disused, but the juramentum became general, and Justinian made it, as we shall see (§ 1), the necessary preliminary to every suit (C. ii. 59, 2).

(1) That which a plaintiff was bound to give in case of plus petitio, was a kind

of pecuniary penalty against the demand

ant.

(2) Actiones contrariæ of tutela, mandatum, and depositum (i. e., actions by the tutor against the pupillus, by the mandatarius against the mandator, by the depositarius against the depositor), were not punished with infamy.

(3) When existimatio was very seriously impaired, the offender was said to incur infamia, in cases of less gravity, turpi tudo; if the offending person was in an inferior grade, he was branded with a levis nota.