PER PI´GNORIS CAPIO´NEM
PER PI´GNORIS CAPIO´NEM
This legis actio,
or form of statute process, was a legal mode of self-redress, by which
certain privileged creditors could distrain on the property of their debtors
who were in default. The obligations mentioned by Gaius (4.27, 28) as being
enforceable in this way, were of a religious or public character, and
probably did not give rise to any civil action (for a Greek parallel to
pignoris capio, see Plato, Legg.
xii. p. 54; Poste's Gaius,
4. § § 26-29, comm.).
Pignoris capio, Gaius says, depended in some cases on custom (moribus
), and in others on statute (lege
- 1. It was founded on custom in obligations relating to military
service. A soldier might seize as a pledge (pignus capere) anything belonging to his paymaster or
person who had to furnish the aes militare (qui
stipendium distribuebat), in case he did not make the
proper payments (Gel. 7.10; cf. Bruns,
Cession, p. 36; Karlowa, Der
Civilproc. p. 208 f.; Huschke, Multa, 401 f.): he might also make a seizure in respect
of the money due to him for the purchase of a horse (aes equestre) (Fest. s. v. Equestre;
Liv. 1.43; Cic.
Rep. 2.20, 36), and also in respect of
the allowance for the food of his horse (aes
hordearium, Fest. s. v. Hordearium) upon what belonged to the person whose duty
it was to make the payment. Originally such payments were fixed upon
particular persons, and not made out of the aerarium (Liv. 1.43; Gaius, 4.27).
- 2. The law of the Twelve Tables made liable to pignoris capio, on
default of payment, the buyer of a victim (hostia), and the hirer of a beast of burden, when the
hire money was intended for a sacrifice (in
dapem) (Huschke, Multa, p.
402). By a lex censoria the publicani had the right pignoris
capionis in respect of vectigalia publica which were due by any lex.
(Cic. Ver. 3.11, 28; cf. Degerkolb, Lex. Hieronica, 93; Karlowa, 212, &c.)
Some modern writers think that pignoris capio was also the process in the
case of damnum infectum (Gaius, 4.31; Bethmann-Hollweg, 1.204, Anm. 13;
Karlowa, p. 216). The thing was seized with certain formal words (as to the
importance of the formalities by which the right of distraint had to be
carried out and the wide extent of distress in primitive law, see Maine's
Lecture ix.), and for this reason pignoris
capio was generally considered to be a legis actio; but Gaius adds, that
some doubted whether it was so, since it was performed out of court (
“extra jus id est non apud praetorem” ), and in most cases
in the absence of the debtor, and moreover it could take place on a dies
nefastus, or day on which a legis actio could not be carried on.
Thus the distress itself was not an action in the ordinary sense, but a kind
of self-redress; it must, however, have very frequently given rise to an
action in court, where the right to distrain was disputed. Ihering even
suggests that the [p. 2.368]
distrainer was bound in all
cases to justify his proceeding before the praetor. Thus it is possible that
this subsequent action in court may have been the actual legis actio per
pignoris capionem, and not the preliminary distress.
There is no statement in Gaius or elsewhere as to the rights of the
distrainer in the thing he had taken as a pledge. Most modern writers
suppose that if the debtor did not redeem the pignus (reluere
) within two months (Dig. 42
) it became the
property of the distrainer, or that the latter had the right to sell it
Cic. de Or. 3.1
, 4; Tib.
4.13, 17). This right of distress came to an end with the abolition of the
legis actio procedure. The pignus in causa judicati captum of later times
was a means of execution carried out by officials under an order of the
court. (Gaius, 4. § § 26-29, 32; Keller, Der
§ 20; Bethmann-Hollweg,
vol. 1.95; Karlowa, Der röm. Civilprocess,
&c.; Bekker, Akt.
1, 44; Voigt, Zwölf
1.502; Ihering, Geist. d. r. R.