The Ancient Library

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case, the opposite party was required to make one also. In the case of Caecina (Cic. pro Caecin. 8) a sponsio had been made : Cicero says, addressing the recuperatores, " sponsio facia est: hac de spon-sione vobis judicandum est." In fact, when the matter came before a judex or arbiter, the form of proceedirg vas similar to the oidinary judicium.

The chief division of Interdicts has been stated. The various purposes to which they were appli­cable appear from the titles ; as, Interdictum de Aqua, de Arboribus caedendis, de Liberia exhi-bendis, de Rivis, de Superfieiebus, &c.

Another division of Interdicts was into those for the purpose of acquiring Possession, retaining pos­session, or recovering possession. (Gaiusv iv. 144.)

The Interdictum adipiscendae possessionis was given to him to whom the Bonorum possessio [bonorum possessio] was given, and it is referred to by the initial words Quorum bonorum. (Dig. 43. tit. 2. s.l.) Its operation was to compel a person, who had possession of the property of which the Bonorum possessio was granted to an­other, to give it up to such person, whether the person in possession of such property possessed it pro herede or pro possessore. The Bonorum Em tor [bonorum emtio] was also entitled to this In­terdict, which was sometimes called Possessorium. It was also granted to him who bought goods at public auction, and in such case was called Secto-rium, the name " Sectores " being applied to per­sons who bought property in such manner, (Cic. pro Rose. Am. 36.)

The Interdictum Salvianmn was granted to the owner of land, and enabled him to take possession of the goods of the colonus, who had agreed that his goods should be a security for his rent. (Dig. 43. tit. 3.)

This Interdict was not strictly a Possessorial Interdict, as Savigny has shown (Das Reclit des Besitzes^ p. 410 ; Puchta, Institutionen, &c. ii. § 225.) It did not, like the two other Interdicts, presuppose a lawful possession, that is, a Jus pos­sessionis acquired by the fact of a rightful posses­sion ; the complainant neither alleged an actual possession nor a former possession.

The Interdictum retinendae possessionis could only be granted to a person who had a rightful possessio, and he was intitled to it in respect of damages sustained by being disturbed in his pos­session, in respect of anticipated disturbance in his possession, and in the case of a dispute as to owner­ship in which the matter of possession was first to be inquired into. Its effect in the last case would be, as Gains states, to determine which of two litigant parties should possess, and be the defend­ant, and which should be tlie claimant, and have the burden of proof. There were two Interdicts of this class named respectively Uti Possidetis and Utrubi, from the initial words of the Edict. The Interdictum Uti Possidetis applied to land of houses, and the other to moveables. The Uti Possidetis protected the person who at the time of obtaining the Interdict was in actual possession, provided he had not obtained the possession against the other party (adversarius) vi, clam, or precario, which were the three vitia possessionis. (Festus, s. v. Possessio ; Gaius, iv. 160.) In the case of the Interdictum Utrubi, the possession of the movable thing-was by the Interdict declared to belong to him who had possessed the thing against the other !party during the greater part of that year, " nee vi



nee clam nee precario." There were some peculi­arities as to possessio of moveable things. (Gaius,

• i v i \ r>\~

iv. 151.)

The Interdictum recuperandae possessionis might be claimed by him who had been forcibly ejected (vi dejectus) from his possession of an immovable thing, and its effect was to compel the wrong­doer to restore the possession, and to make good all damage. The initial words of the Interdict were, Unde tu ilium vi dejecisti ; and the words of com­mand were, Eo restituas. (Cic. pro Caecin. 30, pro Tull. 4, 29, 44; Gaius, iv. 154; Dig. 43. tit. 16. s. 1.) There were two cases of Vis: one of Vis simply, to which the ordinary Interdict applied, which Cicero calls Quotidianum ; the other of Vis Armata, which had been obtained by Caecina against Aebutius. The plaintiff had to prove that he was in possession of the premises, and had been ejected by the defendant or his agents (familia or procurator, Cic. pro Tull. 29.) If the matter came before a judex the defendant might allege that he had complied with the Interdict, " restituisse," though he had not done so in fact ; but this was the form of the sponsio, and the defendant would succeed before the judex if he could show that he was not bound to restore the plaintiff to his pos­session. (Pro Caecin. 8, 32.)

The defendant might put in an answer (excepiio) to the plaintiff's claim for restitution: he might show that the plaintiff's possession commenced either vi, clam, or precario with respect to the defendant (pro Caecin. 32, pro TulL 44) ; but this exceptio was not allowed in the case of vis armata. (Pro Caecin. 8, 32.) The defendant might also plead that a year had elapsed since the violence complained of, and this was generally a good plea ; for the Interdict contained the words "in hoc anno." But if the defendant was still in possession after the year, he could not make this plea ; nor could he avail himself of it in a case of Vis Armata. (Cic. ad Fain. xv. 16.)

A clandestina possessio is a possessio in which the possessor takes a thing (which must of course be a movable thing) secretly {furtive} and without the knowledge of the person whose adverse claim to the possession he fears. Such a possessio, when it was a disturbance of a rightful possessio, gave the rightful possessor a title to have the Interdict de clandestina possessions for the recovery of his possession. All traces of this interdict are nearly lost ; but its- existence seems probable, and it must have had some resemblance to the Interdictum de vi. The exceptio clandestinae p-ossessionis was quite a different thing, inasmuch as a clandestina possessio dkl noli necessarily suppose the lawful possession of another party.

The Interdictum de Precaria possessione or de Precario applied to a case of Precarium. It is Pre-carium when as man permits another to exercise ownership over his property, but retains the right of demanding the property back when he pleases. It is called Precarium because the person who received surh permission usually obtained it by request (preee) ;• though request was not neces­sary to constitute P'recarimn, for it might arise by tacit permission. (Paulus, S. R. v. tit. 6. s. 11.) The person who received the detention of the thing, obtained at the same time a legal posses sion, unless provision to the contrary was made l»y agreement. In either case the permission could at any time be recalled, and the possessio, which in

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