CHAPTER X, Interdicts. BOOK WE now come to the subject of Interdicts, which IV. had their origin in the Jus honorarium. They emanated from the Imperium of the Prætor, and exhibited in a striking manner the fulness of his equitable jurisdiction. Interdicts. Exhibitoria. Restitutoria. Prohibi toria. Difference terdicts and The term interdictum, from inter and dico, signifies the adjudging some point in dispute between contending parties. Interdicts were actions, for Ulpian says, interdicta quoque actionis verbo continentur1. They were called Decreta when any thing was ordered to be done, as that something should be exhibited, or restored; and Interdicta when any thing was forbidden to be done; whence they were classed under three heads, Exhibitoria, restitutoria and prohibitoria. The distinction between an action and an inbetween In- terdict was a wide one. In the former the Prætor Actions. made no order upon the subject in dispute. He declared judex esto, if sufficient cause of action were proved, and left it to the judex to try the case; but in an Interdict the Prætor made a definite and specific order that some particular thing should be done, or should not be done. The party applying for relief must show sufficient cause, i. e. prove to the satisfaction of the Prætor that his case came within the Edict. If he failed, there was an end of the case; but if he succeeded, the Prætor pronounced his Interdictum; e. g. Exhibeas, or Restituas, or Vim fieri veto, as the case might be; and though further proceedings might 1 D. XLIV. 7. 37. X. be necessary, they only went to execute the Prætor's CHAP. order. If the Reus thought it just and prudent to comply at once with the terms of the Interdict, there was an end of the case. But suppose the Reus should show cause why the Interdict should not be put in execution against him, here the dispute was not terminated with the order of the Prætor, and he would accordingly appoint a judex, or an arbiter, whom he would direct to inquire into the facts of the case, as whether any thing had been done contrary to the Edict, or whether the Interdict had been fully obeyed'. But the Reus must appeal at once, ante quam a Prætore discedit, or the Interdict was conclusive. In prohibitory Edicts there was always a sponsio by way of security, entered into by both parties, the payment of which fell upon him against whom the judex decided, but the sponsio was not always Sponsio. required in those Interdicts which were exhibitory or restitutoryR. If we take as an example the proceedings in the prohibitory Interdict uti possidetis, it was the duty of the judex to investigate and settle the dispute; viz. which of the claimants was entitled to the undisturbed possession. In such a case it was usual for one of the claimants to get possession of the fructus, the growing crops, by bidding against the other, licitationes, these being handed over to him qui plurimum licitando alterum superasset, to abide the decision of the judex; and then he against whom the decision of the judex was given was obliged to surrender the property, to pay the sponsio, and the sum at which he had taken the crops, and any intermediate profits which had arisen. Gaius classes Interdicts under three heads: 1. Prohibitoria. 2. Restitutoria. 3. Exhibitoria. 1 Gai. IV. 141. 2 Id. 164. 3 Id. 141. 4 Because while the matter was in dispute these might perish. 5 Id. 166-7. 6 Hein. Ant. IV. 15. 6. IV. and Du plicia. BOOK Or retinendæ possessionis-recuperandæ and adipiscendæ. He also distinguishes them as simplicia Simplicia and duplicia'. With regard to this last division he describes his meaning thus: Simplicia sunt velut in quibus alter actor, alter reus est, qualia sunt omnia restitutoria, aut exhibitoria, nam actor est qui desiderat aut exhiberi, aut restitui, reus est a quo desideratur ut exhibeat, aut restituat. But the prohibitory Edicts were occasionally duplicia, because both parties stood at the same time in the position of Actor and Reus, of which kind were the Interdicts uti possidetis, and utrubi, where both claimed the same thing3. Retinendæ possessionis. As instances of Interdicts, 1. Retinendæ possessionis, 2. Recuperandæ, and 3. Adipiscendæ, we may take the following examples : I. The Interdicts retinenda possessionis, or for quiet enjoyment, were principally those called uti possidetis and utrubis, the former relating to res immobiles, the latter to chattels. With respect to the former, the Prætor decided in favour of him who nec vi, nec clam, nec precario ab adversario possidebat. In the Interdict utrubi hic homo, &c. the question was, in the time of Gaius, which of the claimants had had the longer possession, hoc anno, during the preceding year, nec vi, nec clam, nec precario. The time was reckoned backwards (retrorsus): therefore if one party had possessed the thing for five months, and the other for seven, possession was granted to the latter. Moreover it was allowed an heir, or a purchaser, to include the preceding justa possessio of the deceased, or the vendor. Nor need possession be a continuous corporeal possession that of a tenant, or of some one to whom the thing had been lent was sufficient; and absence with the animus retinendi would satisfy the Edict". 1 Gai. IV. 156. 3 Id. 160. 2 Id. 157. 4 D. XLIII. 17. 6 Gai. IV. 150. 5 Id. 31. X. 2. The Interdict recuperandæ possessionis is CHAP. illustrated by that called Unde tu illum vi dejecisti1, which provided a remedy for those who had been Recupeforcibly deprived of possession, by compelling the rando. restitution, provided he who had suffered ejectment had not possessed vi, or clam, or precario from the ejector2. It applied only to real property, res immobiles, and the ejector was liable for the violent acts of all who acted under his authority express or implied3. 3. Of the Interdicts adipiscendæ possessionis Adipiscenwe may take as an example that Quorum bono- dæ. rum, by which the bonorum possessor acquired possession of the property adjudged to him by the Prætor. It applied also to a purchaser where the vendor refused to deliver possession. Also the Interdictum Salvianums, which was for the relief of landlords for obtaining so much of the tenant's crop as should cover the rent; and was, therefore, in the nature of a distraint. The reader should consult the forty-third Book of the Digest de Interdictis. There are two subjects connected with the Prætor's interdictorial power which it will be well to notice more particularly, viz. Nunciatio novi operis and De damno infecto. In the case of Nunciatio novi operis the Præ- Nunciatio. tor's jurisdiction was prohibitory in the highest novi operis. degree, because it went to restrain the owner of property from prosecuting some work on his estate. Nunciatio novi operis means a notice calling on a party to desist from, or even not to begin, a novum opus on his own property, on the ground that the nuncians will be damaged thereby. It applies therefore to prospective damage, that which is doing, but not yet done. The object of the BOOK nunciatio is to compel the party to desist, or to give security for consequential damages. IV. If the nunciatus proceed with his work after the nunciatio, though he may have a right to do that which is objected, still if he proceed in the face of the Prætor's interdict he will be compelled to desist, and to demolish the work, so imperative was the interdict, for Ulpian says: Qui facit, etsi jus faciendi habuit, tamen contra edictum prætoris facere videtur, et ideo hoc destruere cogitur'. The words of the edict are imperative, quod factum est restituat. And so matters must remain until the nunciatus shewed that the nuncians had no right to impede his novum opus. But if the nunciatus offered security to the nuncians for repairing any damage which might arise he could then proceed, and the Prætor protected him in the progress of his work, quo minus illi in eo loco opus facere liceat vim fieri veto3. Damnum infectum. This proceeding would arise between the proprietors of adjoining property where an injury would be occasioned to one by the acts done by the other on his own estate, and involved the principle sic utere tuo ut alienum non ladas. The security was given by stipulation; and if the nunciatus wished to proceed he must bind himself in a sufficient sum to meet the damage likely to accrue to the nuncians1. Damnum infectum est damnum nondum factum quod futurum veremur5. This edict has in view damage not done, whereas all other actions, and especially those arising from the Lex Aquilia, regard only damage done. The case of the plaintiff was of that nature that it required the most prompt attention, and therefore the Prætor frequently delegated his authority in such matters to the municipal magistrates'. |