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inferendi; vel in sacro loco aedificari, vel in flumine publico ripave ejus aliquid fieri, quo pejus navigetur. Restitutoria sunt, quibus re'stitui aliquid jubet; veluti bonorum possessori possessionem eorum, quae quis pro haerede, aut pro possessore, possidet ex ea haereditate; aut cum jubet, ei, quivi de possessione dejectus sit, restitui possessionem. Exhibitoria sunt, per quae jubet exhiberi ; veluti eum, cujus delibertate agitur; autolibertum, cui patronus operas indicere velit; aut parenti liberos, qui in potestate ejus sunt. Sunt tamen, qui putent, interdicta ea propriè vocari, quae prohibitoria sunt; quia interdicere sit denuntiare et prohibere; restitutoria autem et exhibitoria propriè decreta vocari: sed tamen obtinuit, omnia interdicta appellari; quia inter duos dicuntur.
son who is burying another, where he hath a right; or when he forbids an edifice to be raised in a sacred place, or hinders a work from being erected in a public river, or on the banks which may render it less navigable. The restoratory, direct scimething to be restored, as the possession of goods to the universal successor, who has been kept out of possession by one, who hath no right; or when the praetor commands possession to be restored to him, who hath been forcibly ejected. And the exhibitory interdicts are those, by which the praetor commands some exhibit to be made, as of a slave, for example, concerning whose liberty a cause is depending; or of a freed-man, from whom a patron would exact the service due to him ; or of children to their parent, under whose power they are. Some nevertheless imagine, that interdicts can with propriety be only prohibitory, because the word interdicere signifies to denounce and prohibit;—and that the restoratory and exhibitory interdicts might more properly be called decrees : yet by usage they are all termed interdicts, because they are pronounced between two, [inter duos dicuntur, the demandant and the possessor.
HDe interdictis adipiscendae. § III. Adiniscendae possession. .
§ 3. An interdict for obtaining possession called Quorum Bonorum, is given to him, to whom the practor commits possession of the goods of a deceased person; and it obliges all persons, who retain goods as heirs or possessors, to restore such goods to those, to whom the possession
hath been committed by the magistrate; and note, that he is reputed
to possess as heir, who conceives himself so to be; and he is deemed the possessor, who without authority retains a part or the whole, of an inheritance, knowing the possession does not belong to him. An interdict of acquisition is so called, because, it is useful to him only, who first endeavours to acquire, the possession ; and therefore it would be useiss's to one, who had acquired a possession, and afterwards lost it. The Salvian interdict, is also appointed for the acquisition of possession; and is used by proprietors of farms, against goods which their tenants have pledged, for the payment of rent.
De interdictis retinendae.
§ IV. Retinendae possessionis causā comparatasunt interdicta, Uti possidetis, et titrubi ; cum ab utrāque parte de proprietate alicujus rei controversia sit, et ante quseratur, uter ex litigatoribus possideat, et uter petere debeat : namque, nisi ante exploratum fuerit, utrius corum possessio sit, non potest petitoria acto instituti; quia et civilis
§ 4. The interdicts Uti possidetis and Utrubi have been introduced for the purpose of retaining possession ; fo in a controversy, concerning property, it is necessary to inquire, which of the parties is in possession, and who ought to be plaintiff; for, until the possession be ascertained, an action of demand can not be instituted; and both civil and
vi, nec clam, nec precarió, nactus fuerat ab adversario possessionem : etiamsi alium vi expulerat, aut clám arripuerat alienam possessionem, aut precarië rogaverat aliquem, ut sibi possidere liceret. Utrubi veró interdicto is vincebat, qui majore parte anni nec vi, nec clám, nec precario, ab adversario possidebat. Hodie tamen aliter observatur; nam utriusque interdicti potestas (quantum ad possessionem pertinet) exaquata est, ut ille vincat et in re soli, et in remobili, qui possessionem nec vi, nec
natural law teach us, that, when one party is in possession, the other must be claimant: but as it is more advantageous to be possessor, than demandant, there is generally great contention for the possession ; for although the possessor is not in reality the true proprietor, yet the possession will still remain in him, if the plaintiff does not prove the thing in litigation to be his own ; and therefore, when the rights of parties are not clear, the sentence is always against the demandant. By the ?nterdict Uti possidetis, the possessian of a farm or house is contended for; and, by the interdict Utrubi, the possession of things moveable is disputed. These interdicts ancientby differed much in their force and effects; for, by Uti possidetis, the party in possession at the bringing of the interdict, prevailed, if he had not obtained the possession Jrom his adversary, by force, clandestinely, or precariously: but it was not material in what manner the possessor had obtained the possession from any other person; and, by the interdict Utrubi, that party prevailed who had been in possession for the greatest part of the year proceding the contest, if he had not acquired that possession clandestinely, precariously, or by force. But the present practice is otherwise; for the force of either interdict, as to pos
§ V. Possidere autem videtur quisque, non solum si ipse possideat, sed et si ejus nomine aliquis in possessione sit, licet is ejus juri subjectus non sit; qualis est colonus egoinquilinus. Per eos quoque, apud quos deposuerit quis, aut quibus commodaverit, ipse possidere videtur; et hoc est, quod dicitur, retinere possessionem posse aliquem per quemlibet, quis ejus nomime sit in possessione. Quinetiam animo quoque solo retiner, possessionem placet; id est, ut, quamvis neque ipse sit in possessione neque ejus nomine alius, tamen si hon relinquende possessionis animo, sed postea reversurus inde decesserit, retinere possessionem videatur. Adipisci vero possessionem per quos aliquis potest, secundo libro exposuimus; nec ulla dubitatio est, quin animo solo adipisci possessionem nemo possit.
§ 5. A man is considered in possession, not only when he is himself so, but when any other person, although not under his power, holds
possession in his name; as a farmer, .
or a tenant. A man may also possess, by means of those, to whom he hath committed the thing in litigation, either as a deposit or a loan; and this is meant when it is said that a man may retain possession by means of another, who possesses in his name. It is moreover held, that a possession may be retained, by the mere intention only; for, although a man is neither in possession himself, nor any other for him, but has quitted the possession of certain lands with an intent to return to them again, he shall nevertheless be deemed to continue in possession. We have already explained, in the second book, by what persons a man may acquire possession ; and, although it may be retained by intention only, yet this is not sufficient for the acquisition of possession.