Page:Harvard Law Review Volume 10.djvu/365

339 THE PLEDGE-IDEA. 339 tion of surplus had continued, and, even then, if the judicial process had remained the sole or usual cut-off method, no new problem would have arisen. But the old rule had been left be- hind, and the pledgee was by this time bound to restore on default the surplus value to the debtor (whether he kept or sold the res). So long as he resorted to the judge for achieving his cut-off, the duty of restoration was managed easily enough ; the judge declared the title of the pledgee absolute, either for keeping or for selling, on the terms, in the former case, that the 7'es was appraised and the excess value paid to the debtor, and, in the latter case, that the surplus money received was so paid over. But when the cut off came to be attainable (for landed property) by a resignatio-QX2^?>Q in advance, the pledgees soon found that this was an excellent method of evading the new rule about surplus restoration ; for the res QXi default became the absolute property of the pledgee without his going to court, and he could keep it all, which he could not do if he had had to apply to the court; hence the popularity of the clause. It will be seen that, in the examples cited in the preced- ing note, the clauses all provide that the res shall go in toto to the pledgee, without any provision for surplus restoration. Now until the old notion of forfeit or equivalency had been thoroughly cast aside, and until the rule about surplus restoration had become a solid and instinctive element in the legal thinking of the commu- nity (which in some places did not come till the 1400's), the com- munity would not be prepared to protest against this ingenious evasion of the rule by the use of the resigtiatio-QMS,Q. But when that time did come, the evasion would have to be stopped. It was not that there was anything to be said against the resign a tzo-cause in itself, i. e. as a cut-off; for this very cut-off was that to which the courts themselves had been accustomed for several centuries to aid pledgees. It was the abuse of this particular cut-off process in evading the surplus-restoration, that made it vicious. Now the enabling circumstance for the pledgee was that he got absolute title by operation of the deed, without going into court; and thus the obvious thing, by way of remedy, was to oblige him to do just what he had been used voluntarily to do under the old viittere in bannum proceeding, viz. come into court to get a complete title; for then the court itself could see that he accounted for the sur- plus. Thus the difference between his coming into court in the 900*8 and his coming into court in the I500*s was radical; then, he came voluntarily to get justice and have a defect of title cured ;