336 HARVARD LAW REVIEW. pledge is not practicable.^ Still others give an option either to re-pledge or to sell.^ (3) The proceeding which he took was the generic one for cut- ting off outstanding claims. The pledgee or other person applies to the judge to summon all who may have any claim to the res to come and make it known ; then the judge appoints a period for this, and at its end, by the expedient of mittere in bannunty declares the petitioner's title absolute.^ The notice in this case was : •* This pledge is to belong to this man, according to his right; if there be any one who would redeem it, let him take care to redeem it, as his right is " ; and the judgment was, that " he take the pledge to his own use, and be from the other quit and free " ; and the phrase for it was " eigenen," i. e. it was made his own.* In the case of personal property, where the periods of aiifbiettmg were short, — three weeks, for instance, in some customs, — and where the pledgee was usually in later times a professional money-lender, the process reduced itself in effect to a sale after notice, and the state- ment of the custom would briefly be that the pledgee was per- 1 E. g. : " Wei her [pledgor] is denne nicht loszen, so vorseczte her [pledgee] is vor sin gelt, ob her mac ; kan her is nicht vorseczCy so mag her is vorkouffe " (Koh- ler, 6). 2 Kohler, 7, 14. The reason for the pledgee's readiness to re-pledge seems to have been, as Kohler suggests (19), that as the risk of loss (both as bailee and as creditor) was upon him, he would naturally be anxious to get rid of the risk in any way. 8 Heusler (II, 85) describes the process; examples of terms of delay, etc., are given in Kohler, lofif. This ufbUen, atifhietung, or offering to the debtor for redemption, is not to be confused with the same process when made to cut off the claims of the heirs (or other persons having the retraktrechty retrait Ugiiager, or right of preferment in buying). In the periods and places where this survived, the cutting-ofif process might also have to be employed as against such persons ; yet by some customs the debtor was bound to have offered the res in pledge first of all to those persons, and thus there was no need for cutting off the right which they had previously renounced. The dif- ferent varieties of situations are illustrated in Amira, I, 221 ; Kohler, 116; Weisl, 42.
- That it was this generic process to which the pledgee resorted is clear : Meibom,
335; Heusler, II, 138; Stobbe, Priv. 270, 623, 627 ; Amira, I, 213. Its nature is well brought out in the case of the indefinite-period pledge ; for here the pledgee had to have two periods fixed. By one he merely got a time fixed for redemption, i. e. made it possible for a default to occur ; by the other he cured his defective title after default made; thus, from the Prague Stadtrecht : *' Si judaeus receperit a christiano pingnus, et per spacium ttnius anni tenuerit, si pingnoris valor mutuampecuniam non exces- serit, judaeus pingnus judici suo demonstrabit ut postea habet libertetem vendendi; si quod pingnus apud judaeum di^m et annum [i. e. additionally] remanserit, nulli postea desuper respondebit " (Meibom, 333) ; " [The pledgee] so sol z zu pfande haben jar und tag, [then a triple summons and offer, then] is der richter vor etlichen scheppfen disem [pledgee] ledicleychen antwurten [pronounce free], das er is vorsetzen und vor- kauffen muge und seines geldes doran bekomen" (Kohler, 8). For Scandinavia, see Amira, I, 203.
