BOOK IV. Chapter II. nation in double the amount, in order to escape Cf. Gai. iis. 127; §§ 133 Gai. iv. §§ 21-5: Per manus iniectionem de 182, 204. his rebus agebatur, de quibus ut ita ageretur, lege aliqua cautum est, velut iudicati lege XII tabularum; quae actio talis erat: qui agebat, sic dicebat: QVOD TV MIHI IVDICATVS (sive DAMNATVS) ES SESTERTIVM X MILIA, QVANDO NON SOLVISTI, OB EAM REM EGO TIBI SESTERTIVM X MILIVM IVDICATI MANVM INICIO, et simul aliquam partem corporis eius prendebat; nec licebat iudicato manum sibi depellere et pro se lege agere, sed vindicem dabat qui pro se causam agere solebat; qui vindicem non dabat, domum ducebatur ab actore et vinciebatur. § Postea quaedam leges ex aliis quibusdam causis pro iudicato manus iniectionem in quosdam dederunt, sicut lex Publilia in eum, pro quo sponsor dependisset, si in sex mensibus proximis, quam pro eo depensum esset, non solvisset sponsori pecuniam; item lex Furia de sponsu adversus eum, qui a sponsore plus quam virilem partem exegisset. Sed aliae leges in multis causis constituerunt quasdam actiones per manus iniectionem, sed puram, i.e. non pro iudicato, veluti lex Furia testamentaria. . . § Ex quibus legibus cum agebatur manum sibi depellere et pro se lege agere reo licebat; nam et actor in ipsa legis actione non adiiciebat hoc verbum PRO IVDICATO, sed nominata causa, ex qua agebat, ita dicebat: OB EAM REM EGO TIBI MANVM INICIO. § Sed postea lege Valliad excepto a ? Valeria. iudicato et eo pro quo depensum est, ceteris omnibus, cum quibus per manus iniectionem iii. 121. But see Muirhead on Gai. BOOK IV. Chapter 11. 1 agebatur, permissum est, sibi manum depellere et pro se lege agere.' Gell. xx. 1, §§ 42-49: Confessi aeris ac debiti iudicatis triginta dies sunt dati conquirendae pecuniae causa .. eosque dies decemviri iustos appellaverunt, velut quoddam iustitium, i.e. iuris inter eos quasi interstitionem quandam et cessationem, quibus diebus nihil cum his agi iure posset. Post deinde nisi dissolverent, ad praetorem vocabantur et ab eo quibus erant iudicati addicebantur, nervo quoque et compedibus vincie Similarly an action by way of arrest lay for those cases in respect of which this remedy was provided by any lex, as in the case of an action upon a judgment resulting from the Law of the Twelve Tables, and that action was of the following nature. The party suing spoke as follows: Whereas you have been adjudicated (or condemned) to pay me 10,000 sesterces, and seeing that you have made default in payment, I therefore lay hands upon you for the judgment-debt of 10,000 sesterces,” and at the same time he laid hold of some part of his body. The person against whom judgment had been given was not allowed to remove the hand and act for himself in the suit, but he furnished a protector, who, as the custom was, conducted the case for him. He that did not furnish a protector was led away by the plaintiff to his house and put in chains. § Afterwards certain leges allowed the action per manus iniectionem upon a judgment against some specified persons under other particular circumstances; for example, the l. Publilia, against him for whom a surety had paid money, if he had not repaid it to the surety within six months next after it was paid on his behalf; so, again, the 1. Furia de sponsu against him who had exacted from a surety more than his proportion. . . . § But other leges in many cases established actions per man. iniect., but pura (simple), i.e., not as upon a judgment'; for example the 1. Furia testamentaria. § When an action was brought upon these and other similar leges, the defendant was at liberty to remove the hand of the plaintiff, and conduct the action for himself; for the plaintiff did not in the legis actio add the phrase 'pro iudicato,' but stating the case, went on thus: On that account I lay my hand on you.' . . . § But afterwards leave was given by the l. Vallia to all other persons, save a judgment-debtor and him for whom money had been paid when sued per man. iniect., to remove the hand and conduct the action for themselves. bantur. Sic enim sunt, opinor, verba legis " Chapter II. larum. AERIS CONFESSI REBVSQVE IVRE IVDICATIS TRIGINTA 1 Parties against whom judgment was given for an admitted debt were granted thirty days for the purpose of raising the money. . . and those days were by the decemvirs called 'lawful,' as a sort of iustitium, i.e., a certain interval and cessation of law between them, so to speak, during which days no proceedings could be taken against them. After that, if pay. ment were not made, the debtors were summoned before the Praetor and by him delivered to those to whom they had been adjudged, and were bound in stocks and fetters. The words of the lex [i.e., of the Twelve Tables] are, 'Thirty days shall be the lawful limit of an acknowledged debt, and for matters decided in court in respect of an admitted debt. After that, let his person be seized, let him be brought before the magistrate. Unless he satisfy the judgment debt, or some one appears in court on his behalf as vinder, let the creditor take him home.' -But there was power in the meantime to compromise the matter; and unless such compromise were made by them, the debtors were held in chains for sixty days. During such period, upon every third consecutive market-day, they were exhibited before the Praetor in the comitium, and proclamation was made of the amount of the judgment-debt against them. On the third market-day they were put to death, or sold into slavery beyond the Tiber. If there were several persons to whom the defendant was adjudged, they were allowed, if they chose, to cut and divide the body of the man adjudged to them. Indeed I will mention the very words of the lex: Let them on BOOK IV. Chapter 11. 4 Cf. Early sine. (3) The anomalous legis actio per pignoris capionema was a solemn private distraint introduced for certain claims privileged because of their sacral or public nature, upon the further course of which we possess no information, Gai. iv. §§ 26-9: Per pignoris capionem lege agebatur de quibusdam rebus moribus, de quibusdam lege. § Introducta est moribus rei militaris: nam et propter stipendium licebat militi ab eo qui id distribuebat, nisi daret, pignus capere (dicebatur autem ea pecunia . . . aes militare); item propter eam pecuniam licebat pignus capere, ex qua equus emendus erat, quae pecunia dicebatur aes equestre; item propter eam pecuniam, ex qua hordeum equis erit comparandum, quae pecunia dicebatur aes hordiarium. § Lege autem introducta est pignoris capio veluti lege XII tabularum adversus eum qui hostiam emisset nec pretium redderet, . . . item lege censoria data est pignoris capio publicanis vectigalium publicorum populi Romani adversus eos, qui aliqua lege vectigalia deberent. § Ex omnibus autem istis causis certis verbis pignus capiebatur et ob id plerisque placebat, hanc quoque actionem legis actionem esse; quibusdam autem placebat legis actionem non esse, primum quod pignoris capio extra ius peragebatur, i.e. non apud praetorem, plerumque etiam absente adversario, cum alioquin ceteris actionibus non aliter uti possent, quam apud praetorem praesente adversario, praeterea quod nefasto quoque die, i.e. quo non licebat lege agere, pignus capi poterat.' the third market-day divide their shares; if they have cut too much or too little, it shall not prejudice them.' 1 The legis actio by pignoris capio (distress) originated from custom in respect of some matters, from statute in respect of others. That which dealt with matters affecting the army was brought in by custom. For a soldier was allowed to distrain upon the paymaster in respect of his pay. (Such money (4) The legis actio per iudicis arbitrive postulationem, which is scarcely known more than by name, it is supposed, was intended for such matters as, according to their nature, required a more independent position and a more arbitrary opinion in the judge, as especially matters of partition (e.g., arbitrium familiae erciscundae, actio aquae pluviae arcendae, actio rei uxoriae). BOOK IV. Chapter 11. a The a. r. u. is questionable. (5) The legis actio per condictionem was a new and more simple form of procedure which took the place of the unwieldy sacramenti actio, for strictly unilateral claims relating to a certum,' and introduced the transition to proceedings 'per formulas.' It consisted in a summons to the defendant, which probably connected itself with the claim and denial of debt in iure-unless the plaintiff preferred to tender an oath to the defendant upon the debt; this was, to appear again on the thirtieth day for the appointment of a iudicium, to which, it is supposed, attached a penale sponsio et restipulatio Whether one tertiae partis' of the sum in dispute.d b с § 27. in pecuniary claims was at the same time pre-judicial is very doubtful. was called 'aes militare.) So, too, it was lawful for a soldier to distrain for payment of the sum required for the purchase of a cf. § 206 a horse; and this money was called 'aes equestre.' So again, he could take a pledge for the money to be provided for the purchase of forage for his horse, and this was called 'aes hordiarium.' § Pignoris capio was introduced by statute; as for instance, by a law of the Twelve Tables, against a man who bought a victim for sacrifice and failed to pay the price. So also a pign. cap. was given by a lex censoria to farmers of the public revenues of the Roman people against those who were liable for taxes under any statute. § In all these cases the pledge was seized with a set form of words; and hence a majority held that this was a leg. act. too; but some thought that it should not be so regarded: first, because the pign. cap. took place out of court, i.e., not before the Praetor, and besides generally in the absence of the opponent, whereas the plaintiff could not put actions of the law in operation except before the Praetor and in the presence of his opponent; and further, because the pledge might be seized even on a dies nefastus, that is, on a day when it is not lawful to proceed by an action at law. |