[ULPIANUS libro sexagensimo nono ad edictum. ] §43.16.3.prQuod est et si quis armis deiectus est, quia ex facinoribus defunctorum de eo, quod ad heredem peruenit, actio datur: sufficit enim non in lucro uersari eum heredem, non etiam damnum subire.
[ULPIANUS libro sexagensimo nono ad edictum.] This is also the case if someone has been ejected by force of arms, because on account of the wrongful acts of the deceased, an action is granted in respect of that which has come to the heir; for it is sufficient that the heir should not be in a position of gain, but not also that he should suffer loss.
§43.16.3.1Haec actio, quae aduersus heredem ceterosque successores pertinet, perpetuo competit, quia in ea rei persecutio continetur.
This action, which lies against the heir and other successors, is available perpetually, because it involves the pursuit of the thing.
§43.16.3.2Armis deiectum quomodo accipimus? arma sunt omnia tela, hoc est et fustes et lapides, non solum gladii hastae frameae, id est rhomphaeae.
How do we understand "ejected by force of arms"? "Arms" means all weapons, that is, both clubs and stones, not only swords, spears, and lances, that is, broadswords.
§43.16.3.3Plane et si unus uel alter fustem uel gladium tenuit, armis deiectus possessor uidetur.
Clearly, even if only one or two held a club or a sword, the possessor is deemed to have been ejected by force of arms.
§43.16.3.4Plus dicitur, et si inermes uenerant, si in ipsa concertatione qui inermes uenerant eo processerunt, ut fustes aut lapides sumerent, uis erit armata.
Further, even if they had come unarmed, if in the conflict itself those who had come unarmed went so far as to take up clubs or stones, it will be deemed armed force.
§43.16.3.5Qui armati uenerunt et si armis non sunt usi ad deiciendum, sed deiecerunt, armata uis facta esse uidetur: sufficit enim terror armorum, ut uideantur armis deiecisse.
Those who came armed, even if they did not use arms to eject but did eject, armed force is deemed to have occurred; for the terror of arms is sufficient for them to be deemed to have ejected by force of arms.
§43.16.3.6Si quis autem uisis armatis, qui alibi tendebant, metu hoc deterritus profugerit, non uidetur deiectus, quia non hoc animo fuerunt qui armati erant, sed alio tendebant.
If, however, someone, having seen armed men who were heading elsewhere, fled deterred by this fear, he is not deemed to have been ejected; because those who were armed did not have this intention, but were heading elsewhere.
§43.16.3.7Proinde et si, cum armatos audisset uenire, metu decesserit de possessione, siue uerum siue falsum audisset, dicendum est non esse eum armis deiectum, nisi possessio ab his fuerit occupata.
Accordingly, even if, on hearing that armed men were coming, he departed from possession out of fear, whether what he heard was true or false, it must be said that he was not ejected by force of arms, unless the possession was occupied by them.
§43.16.3.8Si autem, cum dominus ueniret in possessionem, armati eum prohibuerunt qui inuaserant possessionem, uideri eum armis deiectum.
If, however, when the owner was coming into possession, those who had invaded the possession prevented him with arms, he is deemed to have been ejected by force of arms.
§43.16.3.9Eum igitur, qui cum armis uenit, possumus armis repellere, sed hoc confestim, non ex interuallo, dummodo sciamus non solum resistere permissum, ne deiciatur, sed et si deiectus quis fuerit, eundem deicere non ex interuallo, sed ex continenti.
Therefore, we can repel with arms someone who comes with arms, but this must be done immediately, not after an interval; provided we know that it is permitted not only to resist so as not to be ejected, but also, if someone has been ejected, to eject him in turn, not after an interval, but immediately.
§43.16.3.10Cum procurator armatus uenit, et ipse dominus armis deiecisse uidetur, siue mandauit siue, ut Iulianus ait, ratum habuit.
When an agent comes armed, the principal himself is deemed to have ejected by force of arms, whether he ordered it or, as Julian says, ratified it.
§43.16.3.11Hoc et in familia dicendum est: nam cum familia sine me armata uenit, ego non uideor uenisse, sed familia, nisi iussi uel ratum habui.
This must also be said in the case of a household; for when the household comes armed without my knowledge, I am not deemed to have come, but the household is, unless I ordered it or ratified it.
§43.16.3.12Hoc interdictum etiam aduersus eum ponitur, qui dolo malo fecit, quo quis armis deiceretur: et post annum reddetur in id, quod peruenit ad eum qui prohibuit unde ui.
This interdict is also granted against him who maliciously brought it about that someone should be ejected by force of arms; and after a year it will be granted in respect of that which came to the hands of the person who barred the possession under the interdict "unde vi".
§43.16.3.13Interdictum necessarium fuisse fructuario apparet si prohibeatur uti frui usu fructu fundi.
It is clear that the interdict was necessary for the usufructuary, if he is prevented from using and enjoying the usufruct of the land.
§43.16.3.14Uti frui autem prohibuisse is uidetur, qui ui deiecit utentem et fruentem aut non admisit, cum ex fundo exisset non usus fructus deserendi causa.
Now, he is deemed to have prevented the use and enjoyment who has by force ejected the person using and enjoying, or has not admitted him when he had departed from the land without the intention of abandoning the usufruct.
ceterum si quis ab initio uolentem incipere uti frui prohibuit, hoc interdictum locum non habet.
But if anyone from the beginning prevented one who wished to begin using and enjoying, this interdict does not apply.
quid ergo est? debet fructuarius usum fructum uindicare.
What then is the remedy? The usufructuary must vindicate the usufruct.
§43.16.3.15Pertinet autem hoc interdictum ad eum, qui fundo uti frui prohibitus est: sed pertinebit etiam ad eum, qui aedificiis uti frui prohibetur.
Moreover, this interdict applies to him who has been prevented from using and enjoying land; but it will also apply to him who is prevented from using and enjoying buildings.
consequenter autem dicemus ad res mobiles hoc interdictum non pertinere, si quis uti frui prohibitus est re mobili, nisi si rei soli accedebant res mobiles: si igitur ibi fuerunt, dicendum est etiam ad eas referri hoc interdictum debere.
Consequently, we shall say that this interdict does not apply to movable things, if someone has been prevented from using and enjoying a movable thing, unless the movable things were accessories to the land. If, therefore, they were there, it must be said that this interdict ought also to be extended to them.
§43.16.3.16Item si non usus fructus, sed usus sit relictus, competit hoc interdictum.
Likewise, if not a usufruct, but a use has been bequeathed, this interdict is available.
ex quacumque enim causa constitutus est usus fructus uel usus, hoc interdictum locum habebit.
For from whatever cause the usufruct or use has been established, this interdict will apply.
§43.16.3.17Qui usus fructus nomine qualiterqualiter fuit quasi in possessione, utetur hoc interdicto.
Whoever, under the name of usufruct, was in quasi-possession in any way whatsoever, shall use this interdict.
sed si quis, posteaquam prohibitus est, capite minutus sit uel mortuus, recte dicitur heredibus et successoribus competere hoc interdictum, non ut in futurum constituatur usus fructus, sed ut praeterita causa et damnum praeteritum sarciatur.
But if someone, after he was prevented, has suffered a change of status or died, it is rightly said that this interdict is available to his heirs and successors, not so that the usufruct may be established for the future, but so that the past cause and past damage may be repaired.
§43.16.3.18Heres quoque simili modo debebit in factum actionem suscipere in id quod ad se peruenit.
The heir also, in like manner, must submit to an action on the facts in respect of that which has come to him.