Page:Harvard Law Review Volume 10.djvu/423

397 THE PLEDGE-IDEA, 397 In the next stage the presumption has changed, and the imputa- tion of some surplus of profits on the claim is deemed to be so generally understood that it is now for the pledgee to secure him- self by stipulating that it shall not be made.^ Finally comes the stage of modern law, when the pledgee is compelled invariably to submit to such a reduction. The terms were various, most of them involving the notion either of ** striking off" something from or " reckoning " something upon the principal claim, — ** totslak," " abslahung," " absleg," " abslag," ** afslach," " rekenynge," " rechenschaft," and in French and Latin sources, " acquitatio," " acquit," " computatione in sor- tem."2 -j-j^g method of computation was often by the valuation of experts,^ often by a court.* It might take place without special prearrangement^ or at fixed times.^ Where the amount of the abschlag was not left to crop contingencies, but was fixed before- hand, the periods were of course thus supplied, and there was no resort to third parties for valuation. 2 a. The profits might of course be reckoned off by various schemes. ( i ) First, and presumably earliest, was the scheme most favorable to the pledgee ; he was to take out first a fixed amount (whether called "interest" or not), and only the contingent sur- plus was to be reckoned against the principal sum.' (2) Secondly, 1 A special clause might be used : " nee computare. . . nobis tenebitur," or a phrase might suffice : " ane," '* one," " on," " sonder," " sine," (all meaning " without,") fol- lowed by one of the words mentioned in the text : Kohler, 133, 108. Another form, having exactly the same purpose, but more usual in the south, was : " et quicquit fruc- tus quos inde tollere potuerimus, de super et de subtus, inclitum illut novis aveamus faciendi ex eo quicquit voluerimus "; " quid de fructum exierit, quicquit facere volue- rimus " (Kohler, 87, 88, 89, 91). ' ^ Kohler, 258, 133, 309. Todsate was the phrase for the species of satzunsr. The French phrase vifgage will be later explained. 8 *' Sub testimonio Ijonorum virorum " (Kohler, 105). ^ " Allodium meum. ., pro pignore exposui. . . quousque prefata ecclesia dictas XXXII libras plene et integraliter sub testimonio bonorum virorum receperit " (Kohler, 105). deme markede to derne Berge eynis Sunabindes vor und eynes Sunabindes na sente mychahelis dage " (Kohler, 108). "' A house is pledged for 10 marks ; the pledgee " de conductione domus unam mar- cam tollat pro censu, et residuum deputabit de decern marces quousque suas decern marcas deputabit " (Kohler, 106) ; pledge of land for a debt of 600 marks, " until they [pledgees] from the above mentioned use and fruits, over and above the 60 marks which they shall each year receive from the said, etc. .. . have paid themselves the said 600 marks," etc. (Kohler, 132) ; pledge of a village for a debt of 1500 gulden at the 53
 * " Als oft auch ein totslak in dem obgenanten gericht geschee " (Kohler, 258).
 * " Dat sullet se alle yar myt uns rekennen als dat korn gemeynliken gyldet up