[ULPIANUS libro tertio de officio consulis. ] §42.1.15.prA diuo Pio rescriptum est magistratibus populi Romani, ut iudicum a se datorum uel arbitrorum sententiam exsequantur hi qui eos dederunt.
[ULPIANUS in the third book on the Office of Consul.] A rescript was issued by the deified Pius to the magistrates of the Roman people, that those who appointed judges or arbitrators should themselves execute their judgment.
§42.1.15.1Sententiam Romae dictam etiam in prouinciis posse praesides, si hoc iussi fuerint, ad finem persequi imperator noster cum patre rescripsit.
Our Emperor and his father replied by rescript that the governors of provinces can also carry into effect in the provinces a judgment pronounced at Rome, if they have been ordered to do so.
§42.1.15.2In uenditione itaque pignorum captorum facienda primo quidem res mobiles et animales pignori capi iubent, mox distrahi: quarum pretium si suffecerit, bene est.
Therefore, in conducting the sale of seized pledges, they first order movable property and animals to be taken as a pledge, and then to be sold; if the price of these is sufficient, it is well.
si non suffecerit, etiam soli pignora capi iubent et distrahi.
If it is not sufficient, they order pledges of land also to be taken and sold.
quod si nulla mouentia sint, a pignoribus soli initium faciunt: sic denique interloqui solent, si mouentia non sint, ut soli quoque capiantur: nam a pignoribus soli initium faciendum non est.
But if there are no movables, they begin with pledges of land; thus they are accustomed to decree interlocutarily, if there are no movables, that land also should be taken; for a beginning must not be made with pledges of land.
quod si nec quae soli sunt sufficiant uel nulla sint soli pignora, tunc peruenietur etiam ad iura.
But if even those things which belong to the land are not sufficient, or if there are no pledges of land, then they will proceed even to rights.
exsequuntur itaque rem iudicatam praesides isto modo.
In this manner, therefore, governors execute a judgment.
§42.1.15.3Si pignora, quae capta sunt, emptorem non inueniant, rescriptum est ab imperatore nostro et diuo patre eius, ut addicantur ipsi, cui quis condemnatus est, addicantur autem utique ea quantitate quae debetur.
If the pledges which have been taken do not find a buyer, it was replied by rescript by our Emperor and his deified father, that they should be adjudged to the person himself to whom anyone was condemned, but they should certainly be adjudged at the amount which is owed.
nam si creditor maluerit pignora in creditum possidere isque esse contentus, rescriptum est non posse eum quod amplius sibi debetur petere, quia uelut pacto transegisse de credito uidetur, qui contentus fuit pignora possidere, nec posse eum in quantitatem certam pignora tenere et superfluum petere.
For if the creditor preferred to possess the pledges for the debt and to be content therewith, it was replied by rescript that he cannot demand what is further owed to him, because he who was content to possess the pledges is deemed to have settled the debt as if by a pact, and he cannot hold the pledges for a certain amount and demand the excess.
§42.1.15.4Si rerum, quae pignoris iure captae sunt, controuersia fiat, constitutum est ab imperatore nostro ipsos, qui rem iudicatam exsequuntur, cognoscere debere de proprietate: et si cognouerint eius fuisse qui condemnatus est, rem iudicatam exsequentur.
If a controversy arises concerning things which have been taken by right of pledge, it has been established by our Emperor that those who execute the judgment themselves ought to try the question of ownership; and if they find that the property belonged to the person condemned, they shall execute the judgment.
sed sciendum est summatim eos cognoscere debere nec sententiam eorum posse debitori praeiudicare, si forte hi dimittendam eam rem putauerint, quasi eius sit, qui controuersiam mouit, non eius, cuius nomine capta est: nec eum, cui restituta est, statim habere per sententiam debere, si forte iure ordinario coeperit ab eo res peti.
But it must be known that they ought to try the matter summarily, and their decision cannot prejudice the debtor, if by chance they think that the thing should be released, as if it belonged to the person who raised the controversy, and not to the person in whose name it was taken; nor ought the person to whom it was restored to be considered as immediately having it by virtue of the decision, if by chance the thing should begin to be claimed from him by ordinary process of law.
sic euenit, ut omnibus integris tantum capioni res iudicata proficiat.
Thus it happens that, with all rights preserved, the judgment is of advantage only to the seizure.
sed illud debet dici, ubi controuersia est de pignore, id dimitti debere et capi aliud, si quod est sine controuersia.
But it must be said that where there is a controversy concerning a pledge, it ought to be released, and another taken, if there is any without controversy.
§42.1.15.5Quod si res sit pignerata, quae pignori capta est, uidendum est, an sic distrahi possit, ut dimisso creditore superfluum in causam iudicati conuertatur.
But if the thing which has been taken as a pledge is already pledged, it must be considered whether it can be sold in such a way that, the creditor being paid off, the surplus may be turned to the cause of the judgment.
et quamquam non cogatur creditor rem, quam pignori accepit, distrahere: tamen in iudicati exsecutione seruatur, ut, si emptorem inuenerit res quae capta est, qui dimisso priore creditore superfluum soluere sit paratus, admittenda sit huius quoque rei distractio.
And although the creditor is not compelled to sell the thing which he received as a pledge, nevertheless in the execution of a judgment it is observed that, if the thing taken finds a buyer who is ready to pay off the prior creditor and to pay the surplus, the sale of this thing also must be admitted.
nec uidetur deterior condicio creditoris fieri suum consecuturi nec prius ius pignoris dimissuri, quam si ei fuerit satisfactum.
Nor does the condition of the creditor seem to be made worse, since he will obtain his own, and will not release his right of pledge until he has been satisfied.