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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 Early Inst. 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, 1, 31) it became the property of the distrainer, or that the latter had the right to sell it (caedere pignus, 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 röm. Civilprocess, § 20; Bethmann-Hollweg, vol. 1.95; Karlowa, Der röm. Civilprocess, 201, &c.; Bekker, Akt. 1, 44; Voigt, Zwölf Taf. 1.502; Ihering, Geist. d. r. R. 1.11 c; Muirhead, Introduction, &100.37.)

[E.A.W]

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