Gaius 166-168.

entitled not only to be put in possession, but, as a mode of fine on his antagonist, to receive in addition a sum equivalent to the price advanced by himself. It will thus be seen that in the case of possessory interdicts there was a series of distinct judicial questions involved. There was, first, the question of rightful possession at the moment, that is, of possession not obtained by violence; secondly, that of the right of possession grounded on ownership or some good possessory title, as that of a mortgagee or hirer; and, thirdly, the question of the claim to intermediate proceeds.

(b) JUDICIAL SECURITY (Cautiones).

The summary powers in the hands of the Prætor were exercised in the exaction of security, both in the course of a pending action at law and on a mere ex parte process which might or might not develop into actual litigation. The ordinary case in which the Prætor intervened in this way was where the integrity of some existing right was endangered, though not yet violated, and in which it was necessary to secure an interested person against the consequences of damage which the person who occasioned them might, at a future time, be unable to make good. One familiar cause for requiring security of this sort was where proceedings were initiated by a representative or procurator, in which case the representative had to give security, proportioned in amount to the sum at stake, that the costs or damages following on an unsuccessful suit would be duly paid. The same class of security was required where the representative appeared in the character of a trustee, guardian, or agent acting under a general mandate, unless the fact of agency was publicly registered (actis insinuatum), or the principal himself appeared and gave security that he would ratify the acts of his agent (ratam rem dominum habiturum).

In Justinian's time, a defendant could not be compelled at the outset of an action, if he personally appeared, to give security for costs and damages. At the most he

could, unless he belonged to one of the privileged classes, be required to make an oath before the magistrate or a stipulatory promise that he would not desert the cause before it had reached its natural termination.

The most frequent occasion for requiring judicial security was where a person apprehended danger from his neighbour's acts and the Prætor held any delay to be so hazardous that he consented to intervene and require the neighbour to give personal security or pledges by a certain day that he would abstain from inflicting the injury.

The securities required by the Prætor might take a variety of forms, according to the value of the interest at stake, the apparent solvency and good faith of the person from whom it was exacted, or his personal claims to exceptional privileges. The security might be that of a mere formal promise, forming one side of D. (xlvi. 5). what was called a prætorian stipulation, or a promise accompanied by oath or personal security, attended with the intervention of sureties or the deposit of a material pledge. Where security would otherwise be required from the public treasury or a munici L. 9, D. pality a mere formal engagement was sufficient, (xxxvi. 3). as no doubt could be entertained of their general solvency.

(c) GRANT OF PROVISIONAL POSSESSION (Missiones).

One useful instrument of summary jurisdiction in the hands of the Prætor was that of according provisional possession to persons whose rights were likely to be seriously prejudiced through a delay occasioned by the acts or omissions of others or through unavoidable accident. To this head belonged the practice of according to a mother of a child not yet born, during the period. which intervened before its birth, possession of an estate passing by succession on a death. a death. For this purpose it was necessary that the birth should be expected on good grounds both at the time of the death and D. (xxxvi. 9). the time of entrance on the possession (ventris in possessionem missio). To the same general head

belonged the possession known as that granted under the edictum carbonianum, in which possession was given to a child under age, whose true civil status was matter of judicial controversy, and could not be settled till he became of age. This possession was only accorded in the case of intestate succession allowed in defiance of a testator's will. The case might occur of it being controverted whether a posthumous heir had or had not, according to the proper interpretation of the will, been disinherited; and it was held unfair to prejudice the claims of one under age by deciding against him peremptorily while only defended by a guardian.

This sort of provisional possession was largely resorted to for the purpose of merely obtaining effective security. Thus, where a debtor was supposed to be fraudulently hiding himself, or otherwise wasting or wrongfully disposing of his assets, the Prætor would give provisional possession to any creditor who applied for it and made out a primâ facie claim to it. The possession might reach either to the whole of the debtor's property or to specific things.

L. 16, D.

A frequent case for which the Prætor made special provision in his edict was that of putting a suitor into provisional possession of the matter in controversy when his opponent, who had given security for his (xxxvi. 4). L. appearance, yet neither appeared in person nor 3, C. (vi. 33). was defended by any representative. A special rescript of Antoninus Pius allowed legatees and persons claiming under a trust to be put in possession of a testator's estate if the heir, within six months, did not give proper security. Similarly, by an edict of Hadrian's, amended by Justinian, an heir might be put into possession of the inheritance during the time that his claim was under controversy.

Where a person was thus allowed provisional possession, he had the full right and duty to manage the property. Where he was a creditor, he was thereby constituted at mortgagee in possession, and if the debtor fraudulently withdrew himself, he might acquire a right of sale.

(4) REINSTATEMENT (Restitutio in integrum). There was, as the Roman lawyers themselves well recognized, no more important department of the Prætor's summary jurisdiction, or rather right, of executive intervention than that by which he was prepared in certain cases to reinstate in his rights and legal position one who, through his own acts or the acts of others, had inadvertently lost them.

The Prætor's Edict defined certain special cases in which he was prepared to accord this relief,—such were youth and inexperience, unavoidable absence from home, or the absence of an antagonist in a law suit, or the fraud or violence of others resulting in the performance, contrary to a true intent, of prejudicial acts. But besides these special cases, there was a general clause in the edict in which the Prætor reserved to himself the right of reinstating on any ground whatever that commended itself to his sense of justice, provided that no law, written or unwritten, forbade it.

The customary period within which application for reinstatement might be made had been the period of the Prætor's office, that is, one year; but the year was counted from the time of the altered legal position, or, rather, from the moment at which the person who suffered from it first acquired the capacity of bringing forward his application. Constantine altered the period to five years in Rome or four years in Italy; and Justinian enacted that, in the special cases of an impaired legal position through the inexperience of youth, or through absence, or through the causes enumerated in the comprehensive section of the edict, the application must be made within four years, counting from the time when the person whose rights were impaired L. 7, C. (ii. was first competent and free to sue for redress. 53). In the case of a loss of rights through fraud, a reinstatement must be applied for in all cases within two L. 8, C. (ii. years of the commission of the fraudulent offence. 21). In the case of loss of rights through violence, or threat of violence, there was no limit to the time for applying for

reinstatement; but if property wrongfully obtained were not restored within a year from the time of the wrong-doing, and application for reinstatement were made within the same year, fourfold damages could be obtained, all payments made by the applicant being paid back to him.

The reinstatement was effected with the greatest possible efficiency and fulness which the case admitted of, the acquired rights of innocent third persons being respected. All intermediate gains, profits, accessions, fruits, and the like, with the proper interest on capital, had to be made good to the person who would have been entitled to them if the change of legal relationship complained of had not occurred. In calculating these intermediate profits it mattered somewhat whether the person who had already come into possession of them, or might have come into possession of them if he had used due diligence, had been himself acting fraudulently or bonâ fide. In the latter case, he was only liable to make good actual receipts, and the person who claimed to be righted was bound to make good all expenses advanced on behalf of the property.

There was one peculiar case in which the Prætor rescinded an act of transfer which did not seem to fall under the general head of fraud. It was where a person alienated property in such a way as to entail on a litigant the consequence of having a more powerful antagonist in the suit or a less favourable tribunal. In this case not only was the act of transfer annulled, but the person who perpetrated it was liable in an action to make good to his adversary the amount of interest that he had in maintaining the state of things as it originally was. This did not prevent a person without fraudulent intention taking steps. to pass over his rights of action to another, on the ground of his own ill health or pre-occupations. But even in this case, though the act of transfer would be good, yet the Prætor might see cause to intervene with his interdict, and might oblige the party who wished to rid himself of the suit to employ a representative agent.

There were a few cases in which the Prætor's functions in granting reinstatement, especially on the ground of