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p835 Per Pignoris Capionem

Article by George Long, M.A., Fellow of Trinity College
on pp835‑836 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

PER PI′GNORIS CAPIO′NEM. This was one of the Legis Actiones or old Forms of procedure, which in some cases was founded on custom (mos), in others on enactments (lex). It was founded on military usage in the following cases. A soldier might seize as a pledge (pignus capere) anything belonging to the person who had to furnish the aes militare, in case he did not make the proper payments; he might also make a seizure in respect of the money due p836to him for the purchase of a horse (aes equestre), and also in respect of the allowance for the food of his horse (aes 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. I.43; Gaius, IV.27). The Law of the Twelve Tables allowed a pignoris capio in respect of pay due for the hire of a beast, when the hire money was intended for a sacrifice. By a special law (the name is not legible in the MS. of Gaius) the publicani had the right pignoris capionis in respect of vectigalia publica which were due by any lex. The thing was seized (pignus capiebatur) with certain formal words, and for this reason it was by some considered to be a legis actio. Others did not allow it to be a legis actio, because the proceeding was extra jus, that is, not before the Praetor, and generally also in the absence of the person whose property was seized. The pignus could also be seized on a dies nefastus, or one on which a legis actio was not permitted.

It appears from a passage of Gaius, in which he speaks of the legal fiction that was afterwards introduced into the Formula by which the publicani recovered the vectigalia, that the thing seized was only taken as a security and was redeemed by payment of the sum of money in respect of which it was seized. In case of non-payment, there must however have been a power of sale, and accordingly this pignoris capio resembled in all respects a pignus proper, except as to the want of consent on the part of the person whose property was seized. It does not appear whether this legis actio was the origin of the law of pledge, as subsequently developed; but it seems not improbable. (Gaius, IV.26, &c.; Cic. Verr. III.11; Pignoris capio, Gell. VI.10.)º


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