328 HARVARD LAW REVIEW. analogy of the transaction which we now call personal suretyship. The fidejussor (as already mentioned) comes to the front in the development of the legal promise through the wadia^ and the notable thing about his function is that the wadia is first given, and then the giving of hQ fidejussor '^d.y'i, and frees the wadia ; as in the much discussed passage of Liutprand, 37 (Lombard): "si wadiam dederit, et antequam earn per fidejussorem liberit," etc. Furthermore, the whole notion of the fidejussor was that he freed the debtor, and stepped into his place jtist as a res would ; thus, in the Prankish law, the debtor " liber erit, si fidejussor moritur " ; the creditor could not sue the original debtor,^ and it was only in later times ^ that he had his choice between the debtor and the fidejussor; while the question whether he must first seek the debtor before suing the surety is an essentially modern one. Again, the fact that, in later times, when other debts were in- herited, the liability o{ X.e. fidejussor wdiS, not,^ (witness the maxim, "le pleige mort, la pleigerie meurt,") is apparently best explained by the notion that his person was simply paid over to the creditor, like a res, in liberation.* shall use it [the res], and the latter shall remain harmless, and the former shall sell the pledge, as is right " (Bayr. Landr. 240 ; quoted Meibom, 422). A Lombard commentary on the following formula, "Cujus placiti vadimonia (per usum) debent esse cum fidejussor ibus tacita pena," says: "[If the debtor does not come to trial as thus pledged,] non est intelligendum ... is rem unde agitur debeat amittere ; immo . . . intelligendum est quod penam wadie debeat solvere" (Val de Lievre, 142); and the pains thus taken by the later scribe to assert that the debtor could not get off by letting his pledge be forfeited show that the contrary notion had prevailed and was to be combated. 1 Esmein, 85 ; Heusler, II, § 126. Sohm (Eheschliessung, 38, n. 38) offers the forced explanation that " the surety, because he last received the wadium, is thus the first in liability " ; but it is clear that he admits in effect the fact of the liberatory func- tion, for he had already said (La Procedure de la Lex Salica, ed. Thevenin, App. I. and § 5) : " La contrainte procedurale, a laquelle donne lieu le refus, s'exerce principalement centre le fidejusseur, et non centre le debiteur " ; when, moreover, he says, " Le debiteur principal reste lie vis-a-vis du creancier ; mais Taction du creancier est dirigee contra le fidejusseur," the first statement can hardly be correct if the second is, and the law indorses the second. As late as the Schwabenspiegel (258 b, quoted in Stobbe) we find a rule that if a pledged animal dies, the creditor has no claim for the debt, unless there is a surety ; which shows how the surety was assimilated to a res substituted for the claim. 2 Stobbe, 124-126. 8 Esmein, 145 ; Stobbe, Vertr. 132, 195.
- Another significant notion of the Middle Ages is the " tavern right " ; by which the
tavern keeper was obliged to set out drink not only for money offered, but for pledges offered, provided they exceeded the drink value by a certain ratio; the pledge is pay- ment, and the tavern keeper " may re-pledge it for the claim, and shall notify the debtor that he may redeem it, if he wishes, at the place where it has been re-pledged " (Kohler, 13).
