propter eam pecuniam licebat pignus capere ex qua equus emendus erat quae pecunia dicebatur aes equestre. item propter eam pecuniam ex qua hordeum equis erat conparandum; quae pecunia dicebatur aes hordiarium.

§ 28. Lege autem introducta est pignoris capio velut lege XII tabularum adversus eum qui hostiam emisset, nec pretium redderet : item adversus eum qui mercedem non redderet pro eo iumento quod quis ideo locasset, ut inde pecuniam acceptam in dapem, id est in sacrificium impenderet. item lege toria data est pignoris captio publicanis vectigalium publicorum populi Romani adversus eos qui aliqua lege vectigalia deberent.

§ 29. Ex omnibus autem istis causis certis verbis pignus capiebatur; et ob id plerisque placebat hanc quoque actionem legis actionem esse. quibusdam autem non placebat: primum quod pignoris captio extra ius peragebatur, id est non aput Praetorem, plerumque etiam absente adversario, cum alioquin ceteris actionibus non aliter uti possent quam aput Praetorem praesente adversario: praeterea nefasto quoque die, id est quo non licebat lege agere, pignus capi poterat.

money to buy barley for his horse called aes hordearium.

§ 28. The law of the Twelve Tables rendered liable to distress on default of payment the buyer of a victim and the hirer of a beast of burden lent to raise money for a sacrifice. The lex praediatoria gave the power of distress to the farmers of the public revenue.

§ 29. As in all these cases the distreinor used a set form of words, the proceeding was generally considered a form of statute process. Some, however, held otherwise, because it was performed in the absence of the praetor and generally of the debtor; whereas, the other forms of statute process could only be enacted in the presence of the praetor and the adversary; besides, it could take place in the juridical vacation (2 § 279), that is, in days unavailable for statute process.

Distress in English law bears a certain resemblance to Execution. Each is the application of constraint to a defendant's will by seizure of his goods. But making a distress is the act of a private person, and precedes the commencement of an action: execution follows after judgment obtained in an action, and is the act of the executive at the command of the sovereign. The pignoris capio of the older Roman law corresponded to distress; the pignoris captio of the formulary system generally was a mode of execution.

Perhaps pignoris capio, like manus injectio, was originally an act of Self-redress, and did not amount to legis actio unless it led to a suit in which the distreinor was plaintiff.

Pignoris capio in the older system was a remedy allowed in cases of a public character, that is, in claims relating to military service, to religion, or to the revenue. In the first case the remedy was established by custom, that is, was anterior to the Twelve Tables; in the second case it was given by the Twelve Tables; in the third case it was created by law subsequent to the Twelve Tables.

We have mention of the aes hordearium, § 27, in Livy's account of the Servian constitution: Ad equos emendos dena millia aeris ex publico data et, quibus equos alerent, viduae attributae, quae bina millia aeris in singulos annos penderent, Livy 1. 43. Each soldier received ten thousand asses for the purchase of a horse, and for its maintenance a widow was assigned, who was bound to pay two thousand asses a year.'

The institution appears to have been transplanted from Greece. Cicero mentions it as in force at Corinth: Deinde equitatum ad hunc morem constituit, qui usque adhuc est retentus. Atque etiam Corinthios video publicis equis assignandis et alendis orborum et viduarum tributis fuisse quondam diligentes, De Republica, 2, 20. Tarquinius Priscus instituted the present organization of the cavalry. At Corinth, whence he came, there was a practice of allotting horses at the public expense and taxing the childless and widows for their maintenance.' The private persons thus appointed military paymasters appear to have been called tribuni aerarii, Gellius 7, 10. In later times soldiers were paid by the Quaestors from the public treasury.

We have something similar in the Laws of Plato: tepì dè ... λειτουργιῶν, ὁπόσα περὶ θυσίας εἰρηνικῆς ἢ πολεμικῶν εἰσφορῶν εἵνεκα, πάντων τῶν τοιούτων τὴν πρώτην ἀνάγκην ἰατὴν εἶναι τῆς ζημίας τοῖς [δὲ] μὴ πειθομένοις, ἐνεχυρασίαν τούτοις οἷς ἂν πόλις ἅμα καὶ νόμος εἰσπράττειν προστάττῃ, τῶν δὲ ἀπειθούντων ταῖς ἐνεχυρασίαις πρᾶσιν τῶν ἐνεχύρων εἶναι, τὸ δὲ νόμισμα γίγνεσθαι τῇ πόλει, Laws, 12, 4. If a public duty relating to religion or war is unperformed, the first stage of constraint shall be defeasible of penality by submission of the defaulter, and his goods shall be merely taken in distress by the lawfully appointed official; but if he continue contumacious, the distress shall be sold and the proceeds shall be confiscated.'

§ 28. Raising money for a sacrifice by letting out a beast of burden seems such an exceptional circumstance that we may conjecture it was only a fictitious averment permitted for the purpose of grounding an action. Compare the fictitious averment, permitted

for the purpose of grounding the jurisdiction of the court of Exchequer that the plaintiff was the king's debtor and, by reason of the defendant's default, was unable to pay his debt to the king.

A praediator is defined by Gaius, qui mercatur a populo, above, 2 § 61. Cicero speaks of jus praediatorium, Pro Balbo, 20. A lex praediatoria is mentioned by Suetonius: Ad eas rei familiaris angustias decidit, ut cum obligatam aerariis fidem liberare non posset, in vacuum lege praediatoria venalis pependerit sub edicto praefectorum, Claudius 9. 'He was so impoverished, that he could not discharge his obligation to the treasury, and his goods were declared vacant by the lex praediatoria, and advertised for sale by the edict of the prefects.'

DE FICTIONIBUS.

§ 30. Sed istae omnes legis actiones paulatim in odium venerunt. namque ex nimia subtilitate veterum qui tunc iura condiderunt eo res perducta est, ut vel qui minimum errasset litem perderet. itaque per legem Aebutiam et duas Iulias sublatae sunt istae legis actiones effectumque est, ut per concepta verba, id est per formulas litigaremus.

§ 31. Tantum ex duabus causis permissum est lege agere damni infecti, et si centumvirale iudicium fit. proinde vel hodie cum ad centumviros itur, ante lege agitur sacramento aput Praetorem urbanum vel peregrinum. propter damni vero infecti nemo vult lege agere, sed potius stipulatione quae in edicto proposita est obligat adversarium per magistratum, quod et commodius ius et plenius est. per pignoris [desunt 24 lin.] apparet.

§ 32. Item in ea forma quae publicano proponitur talis fictio est, ut quanta pecunia olim, si pignus

§ 30. But all these branches of statute process fell gradually into great discredit because the excessive literalism of the ancient jurists made the slightest error fatal; and they were abolished by the lex Aebutia and the two leges Juliae, which introduced in their stead the system of formulas or variable written instructions of the praetor to the judex.

§ 31. Two cases only were reserved for statute process, apprehended damage and centumviral causes. The latter are still preceded by statute process of sacramentum before the praetor urbanus or peregrinus, as may happen. For protection against apprehended damage a

plaintiff no longer resorts to statute process, but with the aid of the [municipal] magistrate [who in this matter for the sake of celerity exercises as delegate the jurisdiction of the praetor, Dig. 39, 2, 1] stipulates to be indemnified by the defendant in the manner provided by the edict, whereby he is put to less trouble and obtains ampler redress.

§ 32. The formula provided for the farmer of the revenue directs the debtor to be condemned in the Ll