Simple and double Interdicts.

331

sario: quod si aut vi aut clam aut precario possederit, impune deicitur. (155.) Interdum tamen etiam ei quem vi deiecerím, quamvis a me aut vi aut clam aut precario possideret, cogar rei restituere possessionem, velut si armis vi eum deiecerim : nam Praetor [desunt 4 lin.].

156. Tertia divisio interdictorum in hoc est, quod aut simplicia sunt aut duplicia: (157.) simplicia velut in quibus alter actor, alter reus est: qualia sunt omnia restitutoria aut exhibitoria. nam actor est qui desiderat aut exhiberi aut restitui, reus is est a quo desideratur ut exhibeat aut restituat. (158.) Prohibitoriorum autem interdictorum alia duplicia, alia simplicia sunt. (159.) Simplicia sunt veluti quibus prohibet Praetor in loco sacro aut in flumine publico ripave eius aliquid facere

but if he did get the possession by violence, clandestinity, or sufferance, he is ejected with impunity1. 155. Sometimes, however, I should be compelled to restore possession of the thing to a person whom I had ejected, even though he had got the possession from me by violence, clandestinity, or sufferance, for instance, if I ejected him forcibly with arms; for the Praetor3.

156. A third division of interdicts is based on the fact that they are simple or double. 157. Those are simple, for instance, where one party is plaintiff and the other defendant: of which kind are all restitutory or exhibitory interdicts. For the plaintiff is he who requires that the thing be produced or restored, and the defendant is he at whose hands the production or restoration is required. 158. But of prohibitory interdicts some are double, some are simple.

159. Those are simple, for instance, in which the Praetor prohibits the defendant from doing something in a sacred place, or in a public river, or on its bank: for here the plaintiff is he who

1 See Savigny's Treatise, p. 331. The possessor who was ejected by any of the three modes named, could immediately repossess himself, and his original possession was considered by the law to have never been disturbed. See Paulus, S. R. v. 6. 7.

2 See Savigny's Treatise, p. 344, Cic. pro Tullio, c. 44, Cic. pro Caec.

c. 32.

3 It is not improbable, as Heffter suggests, that Gaius in this lost part is speaking of the interdict unde vi being employed against the heirs of the wrong-doer. The word heredes does appear in the lacuna, and the fact that the heirs were liable is stated in D. 43. 16. 1. 48, D. 43. 16. 3. pr., D. 43. 16. 18.

332

Double Interdicts, Uti possidetis and Utrubi.

reum : nam actor est qui desiderat ne quid fiat, reus is qui aliquid facere conatur. (160.) Duplicia sunt, velut UTI POSSIDETIS interdictum et UTRUBI. ideo autem duplicia vocantur, quia par utriusque litigatoris in his condicio est, nec quisquam praecipue reus vel actor intelligitur, sed unusquisque tam rei quam actoris partes sustinet: quippe Praetor pari sermone cum utroque loquitur. nam summa conceptio eorum interdictorum haec est: UTI NUNC POSSIDETIS, QUOMINUS ITA POSSIDEATIS VIM FIERI VETO. item alterius: UTRUBI HIC HOMO DE QUO Agitur, APUD QUEM MAIORE PARTE HUIUS ANNI FUIT, QUOMINUS IS EUM DUCAT VIM FIERI VETO.

161. Expositis generibus interdictorum sequitur ut de ordine et de exitu eorum dispiciamus ; et incipiamus a simplicibus. (162.) Si igitur restitutorium vel exhibitorium interdictum redditur, velut ut restituatur ei possessio qui vi deiectus est, aut exhibeatur libertus cui patronus operas indicere vellet, modo desires that the thing be not done, and the defendant is he who attempts to do it. 160. The double are such as the interdicts Uti possidetis and Utrubi: which are called "double" from the fact that the position of each litigant in respect of them is the same, and that neither is regarded as being specially defendant or plaintiff, but each sustains the character of defendant and plaintiff at once, inasmuch as the Praetor addresses both in like language. For the general drawing of these interdicts is as follows: "I forbid violence to be employed to prevent you from possessing in the manner you now possess." So also in the case of the other interdict: I forbid violence to be employed to prevent that man, whether of the two he be, with whom the slave who is the matter of action has been during the greater part of this year, from taking possession of him."

66

161. Having now explained the different kinds of interdicts, our next task is to consider their process and result: and let us begin with the simple interdicts. 162. If then a

restitutory or exhibitory interdict be granted, for instance, that possession shall be restored to one who has been forcibly ejected, or that a libertus shall be produced' to whom his patron wishes to appoint his services, the matter is brought

1 Sc. by means of a special interdict, "de libero homine exhibendo," which, like our writ of Habeas Cor

pus, was a process for bringing up the body of a freeman who was under detention. "The special object of

Formula arbitraria.

333

sine periculo res ad exitum perducitur, modo cum periculo. (163.) namque si arbitrum postulaverit is cum quo agitur, accipit formulam quae appellatur arbitraria. nam iudicis arbitrio si quid restitui vel exhiberi debeat, id sine poena exhibet vel restituit, et ita absolvitur : quod si nec restituat neque exhibeat, quanti ea res est condemnatur. sed actor quoque sine poena experitur cum eo quem neque exhibere neque restituere quicquam oportet, nisi calumniae iudicium ei oppositum fuerit. diversae quidem scholae auctoribus placet prohibendum calumniae iudicio eum qui arbitrum postulaverit, quasi hoc ipso confessus videatur, restituere se vel exhibere debere. sed alio iure utimur, et recte: namque sine ullo timore ne superetur, arbitrum quisque postulare potest. (164.) Ceterum observare debet is qui volet arbitrum petere, ut statim petat, antequam ex iure exeat, id est antequam a Praetore discedat: sero enim petentibus non indulgebitur. (165.) Itaque si arbitrum non petierit, sed to a result sometimes without risk, sometimes with risk. 163. For if the defendant have demanded an arbiter, he receives the formula of the kind called arbitraria; and then, if by the award of the judex he be bound to restore or produce something, he restores or produces it without any penalty, and so is freed from liability: but if he do not restore or produce it, he is condemned to pay its value. The plaintiff, too, takes proceedings against a man who is not under obligation to produce or restore anything without making himself liable to any penalty, unless a suit for calumnia' be instituted against him. The authorities of the opposite school think, however, that a defendant who has demanded an arbiter is barred from instituting a suit for calumnia, since by the very fact (of demanding an arbiter) he seems to have made admission that he ought to restore or produce something. But we very properly follow the other rule, for a man may demand an arbiter without being under any apprehension of losing his case. 164. He who wishes to demand an arbiter, ought to be careful to do so before going out of court, that is, before he leaves the Praetor's presence; for if people make the demand at a later stage, it will not be granted. 165. Hence,

tacitus de iure exierit, cum periculo res ad exitum perducitur. nam actor provocat adversarium sponsione: Ni contra edictum Praetoris non exhibuerit aut non restituerit: ille autem adversus sponsionem adversarii restipulatur. deinde actor quidem sponsionis formulam edit adversario; ille huic invicem restipulationis. sed actor sponsionis formulae subicit et aliud iudicium de re restituenda vel exhibenda, ut si sponsione vicerit, nisi ei res exhibeatur aut restituatur adversarius quanti ea res sit condemnetur—[desunt 48 lineae].

166. Postquam igitur Praetor interdictum reddidit, primum litigatorum alterutrius res ab eo fructum licitando rei tantisper in possessione constituitur, si modo adversario suo fructuaria stipu

if the defendant do not ask for an arbiter, but go out of court without speaking, the matter is carried on to its issue "with risk." For the plaintiff challenges his opponent with a sponsion: "Unless he have not failed to produce or restore in violation of the Praetor's edict:" and the latter again makes a restipulation in reply to his adversary's sponsion. Then the plaintiff serves his opponent with a formula in claim of his sponsion; and the defendant in his turn serves the other with a formula in claim of his restipulation. But the plaintiff tacks on to the formula in claim of the sponsion another precept for an issue to decide on the obligation (of the defendant) to restore or produce, so that if he succeed in his sponsion, and the thing be not produced or restored, [his opponent shall be condemned for the value of the thing]'.

166. Now after the Praetor has granted an interdict, first of all the matter in dispute is put for the interim into the possession of one or other of the litigants according to the

1 Hollweg suggests the reading which we have translated within the brackets: it is obvious that the sentence must have ended in some such manner.

It will be observed that the proceedings are identical with those described in IV. 93 the sponsio being in both cases prejudicial only and intended to lead up to a decision on the stipulation, pro praede litis et vindiciarum in the one case, de re restituenda vel exhibenda in the other,

which stipulations were tacked on to the sponsions and really contained the gist of the case.

Hence in his Treatise on Possession (Book IV. § 36), Savigny says that unless the defendant on an interdict admitted the plaintiff's demand, the process on the interdict became identical with that in an ordinary action.

53.

See Cic. pro Caecina, 8, pro Tull.

latione satisdat, cuius potestas haec est, ut si contra ipsum esset postea pronuntiatum, fructus duplum praestet. nam inter adversarios qui Praetore auctore certant, dum contentio fructus licitationis est, scilicet quia possessorem interim esse interest, rei possessionem ei Praetor vendit, qui plus licetur. postea alter alterum sponsione provocat: NISI ADVERSUS EDICTUM PRAETORIS POSSIDENTIBUS NOBIS VIS FACTA ESSET. invicem ambo restipulantur adversus sponsionem vel [4 lineae]. iudex aput quem de ea re agitur illud scilicet requirit quod Praetor interdicto complexus est, id est uter eorum eum fundum easve aedes per id tempus quo interdictum redditur nec vi nec clam nec precario possideret. cum iudex id exploraverit, et forte secun

result of their bidding for the grant of the fruits by the Praetor, provided only the successful bidder gives security to his opponent by the "fructuary stipulation," the force and effect of which is, that if the decision subsequently go against him, he pays twice the value of the fruits'. For since there is a rivalry between the litigants who are contending one against the other with the Praetor's sanction, because it is an advantage to be interim-possessor, therefore the Praetor sells the possession of the subject to the one who makes the highest bid for it. After this one of them challenges the other with a sponsion running thus: "Unless violence has been done to us contrary to the Praetor's edict whilst we were in possession. Both in their turn restipulate against the sponsion............the judex before whom the suit on the subject is conducted proceeds of course to investigate the point which the Praetor dealt with in his interdict, viz. which of the parties was in possession of the land or house at the time when the interdict was granted, holding such possession without violence, clandestinity, or sufferance. When the judex has investigated this point, and his decision has been, we will suppose, in my favour,

1 The text adopted here is that of Huschke. Heffter's varies considerably from it verbally, but only slightly in sense the chief difference being that, instead of fructus duplum praestet, Heffter suggests possessio restituatur, and inclines to translate ab eo in the earlier part of the pas sige "from his opponent," not "iro.n

the Praetor." For tantisper in the sense of interim see D. 9. 3. I. 9, D 37. 10. 3. 13, and Gaius, I. 188.

2 This paragraph is corrupt, and none of the conjectures made by the editors of the text seem happy enough to merit insertion.

3 IV. 150.