action. If the interdict was restitutory or exhibitory, the action was arbitraria, and the judex issued his preliminary order against the party concerned, and, in the event of its not being obeyed, gave a condemnatio quanti ea res erat. (8, note.)

Those interdicts, which distinctly referred to the possessory rights of private persons, were given to acquire, to retain, or to recover possession, those to retain possession being prohibitory, and those to acquire or to restore being restitutory. (2.)

1. Adipiscendæ possessionis causa.-The chief interdict under this head was that known as quorum bonorum, given to secure the possession to those whom the prætor, contrary to the rules of civil law, treated as having a right to an inheritance. It was given against two classes of persons: (a) persons possessing pro herede, i.e. thinking themselves to be the real heirs; (b) persons possessing pro possessore (prædones), i.e. persons merely possessing without any claim of title. It was given against both classes, even if the term of usucapion had run in their favour, and also against them if they had through their own dolus malus ceased to possess. (3.)

This interdict was never given except to a person getting possession for the first time, so that restituas, the word in the formula, must be used (as well as the term restitutory applied to interdicts) in a very wide sense. (3.)

Under this head was also given the interdictum Salvianum, by which an owner of a rural estate got possession of the goods of the occupier (and probably even if they had passed into third hands) in case of non-payment of rent. This interdict was a step historically to the actio Serviana. (3.) 2. Retinendæ possessionis causa.- -The two main interdicts under this head were those uti possidetis and utrubi possidetis, the former applying to immoveables and the latter to moveables. The object of these interdicts was to determine which of two disputants as to ownership was entitled to the possession, and to have this point determined in his favour was of great advantage to a disputant, as he remained in possession if his adversary failed to show he was the real owner. The interdict uti possidetis had to be applied for within a year after the possession had been in any way threatened. Previously to Justinian the interdict utrubi possidetis was given to that disputant who himself, or by any one through whom he claimed, had been in possession during the greater part of the preceding year. Under Justinian possession was confirmed to the person in possession at the time of the litis contestatio, provided (which had always been a condition as to both interdicts) that he had not obtained his possession as against his adversary clam, vi, or precario, the last term meaning by permission of the adversary. (4.)

Only persons having civilis possessio or naturalis possessio, with the animus of ownership, could obtain these interdicts. Persons simply in possessione, detaining the thing without the animus possidendi, could not obtain them, but the person on behalf of whom such persons were in possessione, possessed through them: thus the owner possessed through

Q Q

the tenant, or the depositor through the depositary, or the lender through the borrower. Without the animus there can be no interdictory possession, but if a person has the animus he need not always have the corporeal detention, as, for example, if a man uses in the season an Alpine pasture and leaves it when the season is over with the intention of returning to it, he still possesses it. (5.)

3. Reciperandæ possessionis causa.-The main interdict under this head was that unde vi. Here, there having been an illegal use of violence, the wrongdoer had to restore possession, although the person to whom he restored it had himself got it from him clam, vi, or precario. In the days of the Republic there had been a distinction according to the kind of violence used. If the violence had been ordinary (quotidiana), the possession would only be restored if it had not been obtained by the applicant clam, vi, or precario, and the application must be made within a year. If the violence had been armata, the possession was restored, although obtained vi, clam, or precario, and there was no limit as to the time for asking for the interdict. This distinction, however, had become obsolete before the time when the formula of the interdict was shaped as it is found in the Digest.

The interdict unde vi only applied to immoveables. But by a constitution of A.D. 389 it was provided that any one who seized on anything with violence should lose the ownership if it was his, or give it up, and also pay its value, if it was not. This constitution applied to moveables as well as immoveables. (6.)

Previously to this constitution, possession of moveables had been recovered by the interdict utrubi, and both this and the interdict uti may be looked on as means of recovering as well as of retaining possession. But the employment of the interdict unde vi had, as compared with that uti possidetis, the following advantages: (a) it could be used when a third person was in possession; (b) it gave the fructus from the time of ejectment, not that of the commencement of proceedings; (c) it was given although the possession had been obtained as against the adversary vi, clam, or precario; (d) it included moveables on the estate. (6, note.)

Simple, double Interdicts.—The interdicts uti possidetis and utrubi may be said to be double, i.e. each party is at once plaintiff and defendant, as opposed to other interdicts, where one party claims and the other defends. (7.)

Two points with regard to the proceedings in actions remain to be noticed 1, the checks on reckless litigation; 2, the duty of the judge.

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1. CHECKS ON RECKLESS LITIGATION.-A summary is given at page 495 of the checks on reckless bringing or defending actions in the time of Gaius. Under Justinian, both parties were obliged to swear, the plaintiff de calumnia, that he was not bringing an action vexatiously or without cause, the defendant that it was from a belief in the justness of his cause that he resisted the demand of the plaintiff; and the advocates of both parties had also to take an oath. The plaintiff was liable to pay damages and costs. (Tit. 16. 1.)

The defendant was restrained (a) by the action sometimes being in duplum (the Institutes add in triplum, but no instances are known) when there was a denial on the part of the defendant, as in cases of damni injuriæ and legacies left to holy places; (b) by the action being for more than the single value, as in the case of theft (1); (c) by infamy, which attends condemnation in an action tutela, mandati or depositi if direct, and pro socio (which is direct for both parties), and which attends not only condemnatio, but an agreement to commit the offence, in actions furti, vi bonorum raptorum, injuriarum, and de dolo. (2.)

The first step in an action was the vocatio in jus, the summons to the defendant to appear before the magistrate. Children, however, cannot summon ascendants, nor freedmen patrons or the children or ascendants of patrons, without having first received the permission of the prætor. If they act without this permission, they are liable to a fine of fifty solidi. (3.)

2. THE OFFICE OF THE JUDGE.-The Institutes first lay down the general duty of the judge, which is to judge according to the law, the constitutions, or customary usage. (Tit. 17. pr.) If the judge gave a sentence wrong on the face of it, or fixed the condemnation below what the prætor had fixed it, the sentence was void, and no appeal was necessary. If the judge was supposed to be wrong otherwise, notice of appeal had to be given within two days (or, if the defendant had appeared by a procurator, three days), enlarged by Justinian to ten days. The Emperor was the final judge of appeal, but Hadrian made the decisions of the Senate final, and Constantine those of the prætorian præfect.

Secondly, the Institutes point out what judgment ought to be given in certain actions:

(a) In a noxal action the judge ought to state the condemnation by ordering a sum to be paid, or the noxa abandoned. (2.)

(b) In a real action, if he determines against the claimant, he ought to absolve the possessor; if against the possessor, he ought to order the thing and its fruits to be given up, and, after the time of Hadrian, all the fruits consumed had to be accounted for, whether the possession was bona fide or mala fide, if the thing possessed was an inheritance. Before Hadrian as to inheritance, and before and after his time as to single objects, the rule was that a bona fide possessor had to account for fruits after the bringing of the action, the mala fide possessor for all. If the possessor showed that he could not give up the possession at once, he obtained a delay on giving security to give up within a time allowed him.

(c) In an action ad exhibendum the defendant must exhibit the thing and everything derived from it, as e.g. the fruits, since the bringing the action; nor will usucapion accomplished subsequently avail him. If he states that he cannot exhibit at once, he can obtain a delay on giving security, but if he neither exhibits nor gives security, he is to be condemned in an amount representing the interest of the plaintiff in having the thing exhibited at once.

(d, e, f) In the actions familia erciscundæ, communi dividundo, and

finium regundorum, the judge ought, if he gives one more than another, and one thus receives more than another, to make this favoured person pay a pecuniary equivalent. (4, 5, 6.) In the action finium regundorum, a person ought to be condemned who has destroyed boundary marks, or opposed, in defiance of the judge's order, the measurement of the land. (6.) In all these three actions anything adjudged becomes at once the property of the person to whom it is adjudged. (7.)

CRIMES.-The subject of public prosecutions being altogether outside the general subject of the Institutes, which treat of private law (Tit. 18. pr.), may be omitted here. A sketch of Roman criminal law is given in the last section of the Introduction.