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Interdict

court, interdictum, courts, law, proceedings and granted

INTERDICT, in the law of Scotland, a judicial prohibition of injurious illegal proceedings. Although both the term and the practice have been derived from the interdictum of the Romans, the process has much more analogy with the " injunction" of the English Equity Courts. It has to be kept in view, how ever, that in Scotland neither a real nor a nominal conflict between courts ad ministering the law of civil rights is known, and therefore there is nothing analogous to an injunction in a court of equity against proceedings in a court of law. Interdicts granted by the ordinary law courts against proceedings in the ecclesiastical courts are however not un common, and in the late discussions which produced the secession of the " Free Church," many interdicts were granted by the Court of Session against the exe cution of proceedings of the ecclesiastical courts which were supposed to interfere with the rights of individuals. The Court of Session and the local courts of the sheriffs can grant interdicts. The prac tice is, when a case of immediate danger from any anticipated proceeding can be made out, to grant an interim interdict on an ex parte application, the other party being heard before it is made final. Where no case of immediate urgency is made out, the court appoints parties to be heard on the merits, or technically "passes the vote to try the question." In the Court of Session interdicts are ap plied for to the Lord Ordinary on the bills, and his decision may be carried to the inner house. On a late occasion, some persons having contracted with the proprietors of a grave-yard in Edinburgh for a site on which a public monument should be erected to the memory of "The political martyrs of 1793-4," some per sons who had family burial places in the grave-yard applied for interdict, on the plea that the proposed monument was offensive to them. The interdict was granted by the Lord Ordinary on the bills, but recalled by the Inner House. INTERDICTUM. In the Roman law the general distinction between an action (actio) and an interdict (interdictum) is this. In the case of an action, the prestor,

upon the application of a complainant, if he saw no objection, granted him an action in these terms :judicium dabo, or actionem dabo. A judex was then ap pointed, whose business it was to examine into the matter pursuant to the prtetor's formula, and to decide or pronounce a judgment. In the case of an interdict, when application was made to the prestor by a complaining party, if a sufficient case was made out, the prtetor imme diately made an order, which varied ac cording to the case, and was indicated by one of these words : restituas, exhibeas, veto. The general description of the praetor's interdictum is this: it ordered a certain thing to be done, or it forbade a certain thing to be done. When the or der was to produce (exhibere) a certain thing, or to make some restitution (resti tuere) as to a certain thing, the order was properly called a decretum. When the order forbade a certain thing, as for in stance, to disturb a man fairly (bona fide) in possession of a thing, it was properly called an interdictum. But the term interdictum was also applied as a general term to both kind of orders.

The prestor's order might in some cases settle the matter in dispute. If the de fendant submitted, no farther proceeding would be necessary. If further proceed ings were necessary, the interdict must be viewed merely as the commencement of judicial proceedings, which were compre hended under the term actio in its wider sense. The matter in dispute was brought before a court (judex, or recuperatores) mined by the prestor.

As to the exact nature of the Roman interdict, there is some difference of opinion. The question is, whether the interdict was merely a summary process, or whether it was (originally) a mode of giving relief when there was no other mode.

The authorities for the Roman inter dict are Gains iv., 138-170; Paulus, Sea tentiae Receptae, v., tit. 6 ; Dig. 43 ; See also Savigny, Das Recht des Besitzes, p. 403-516, 5th ed. ; Puchta, bestitutionen, 138.