4.1.231 to 4.1.234

(162) Therefore, if an interdict for the restitution or the production of property is issued; for instance, for the restitution of possession to one who has been forcibly ejected, or for the production of a freedman whose services his patron desires to claim, the proceedings are sometimes brought to a conclusion without the risk of incurring the penalty, and sometimes with that risk. (163) For, if he against whom the case is brought should demand an arbiter, he receives the formula which is called "arbitrary," and if, by the award of the judge, he is required to restore or produce any property, he either produces or restores it without any penalty, and thus is discharged from liability; or if he does not restore or produce it, he is compelled to indemnify the plaintiff for the loss sustained through his disobedience. The plaintiff, however, can, without incurring a penalty, bring an action against one who is not required to produce or restore any property, unless an action for vexatious litigation is brought against him to recover the tenth part of the property in question; although it is said to have been held by Proculus that an action for vexatious litigation should be refused to him who demands arbitration, because he is considered to have, as it were, admitted that he ought to restore or produce the property. We, however, make use of another rule, and very properly; for anyone who demands an arbiter rather shows his intention to litigate in a more moderate manner, than for the reason that he admits the validity of the claim of his adversary. (164) It should be observed that he who desires to demand an arbiter must do so before leaving court, that is before he departs from the tribunal of the Prætor, for if such a demand is made later it will not be granted.