4.1.242 to 4.1.245

(168) Moreover, if he who made a lower bid for the profits at the auction does not prove that he is entitled to possession, he should only be required to pay the amount of the promise and restipulation by way of penalty. (169) We should observe, however, that the unsuccessful bidder, without availing himself of the stipulation for the enjoyment of the profits, has a right to bring an action on the sale at auction, just as by the Cascellian or Secutorian action he can sue for the recovery of possession. A special action has been introduced for this purpose, which is called "fructuary," by means of which the plaintiff receives satisfaction for his judgment. This action is also called Secutorian, because it follows the advantage of the promise, but it is not also called Cascellian. (170) But, for the reason that, after an interdict has been issued, some of the parties are unwilling to institute other proceedings under it, and on this account matters cannot be expedited, the Prætor made provision for a case of this kind, and introduced interdicts which we call "secondary"; because they are issued in the second place, under such circumstances. The force and effect of these is that he who does not institute further proceedings under the interdict, for example, one who does not forcibly eject the other party; or does not make a bid for the mesne profits of the property; or does not furnish security for the same; or does not participate in the promise, or defend the case; shall, if he is in possession of the property, restore it to his adversary; for if he is not in possession, he shall not use violence against the other party who is. Hence, although, otherwise, he might have been able to succeed under the interdict Uti Possidetis ,if he could have complied with the other requirements imposed by it, and did not do so, he will still lose his case by means of a secondary interdict . . . . [1] (171) For the purpose of avoiding vexatious litigation, the parties are sometimes deterred by pecuniary penalties, and sometimes by an oath which is imposed by the Prætor. In certain cases an action for double damages is brought against a defendant; for instance, in the collection of a judgment debt, or for money expended for a principal, or for unlawful damage to property, or where proceedings are instituted to collect legacies left by condemnation. In some instances, the deposit of a forfeit is permitted to be made, for example, in an action