4.1.239 to 4.1.241

(166a) Then, after the necessary formulas of all the promises and restipulations have been filed by both parties, the judge before whom the case is tried must examine the point introduced by the Prætor in the interdict; that is to say, which of the parties was in possession of the land or the house at the time when the interdict was issued, and that he did not obtain possession of it by violence, or clandestinely, or with the permission of the adverse party. When the judge has investigated this, and has, perhaps, decided in my favor, he condemns my adversary to pay the penal sums called for by the promise and the restipulation which I made with him, and in consequence discharges me from liability for the promise and restipulation which were made with me. Further, if my adversary had possession of the property for the reason that he made the highest bid for the profits of the same, and he does not restore possession to me, he can have judgment rendered against him in the action styled Cascellian or Secutorian. Original manuscript illegible. (167) Therefore, if he who is the highest bidder does not prove that he is entitled to possession, he is ordered to pay the sums mentioned in the promise and restipulation, as well as the amount he offered in his bid for the mesne profits at auction, by way of penalty, and to restore possession of the property; and, in addition to this, he must return the profits which, in the meantime he has collected; for the sum of money mentioned in the bid for the profits is not the price of the same, but is paid as a penalty because the party attempted to retain possession belonging to another, for this time, and also to enjoy the profits derived from the property.