[§ 7. Of Pledges and Mortgages.]

Pledges and mortgages are certain securities for the payment of debts. At first they could not be claimed as real rights, though afterwards the law considered them as such. Pledges properly regard moveable subjects, and mortgages immoveable; if a pledge be not redeemed at a certain time, it is forfeited. As people in bad circumstances are naturally slothful, the negligence of debtors among the Romans gave occasion to the lex commissaria, by which the creditor was empowered to seize the pledge, and return the overplus if there was any. By the English law, if no day be named, the pledge falls to the pawntaker on the death of the pawner2. In immoveables, lands are mortgaged but not delivered, and in case of failure they are forfeited. The Roman law and ours are much the same on this head. If payment be not made within some few months after demand, the creditor adjudges the land for the whole sum and the penalty incurred; but his property is not secure without long possession, for the proprietor has a power of redeeming it within a reasonable time; but, as upon redemption much trouble must be Edition: current; Page: [129] occasioned in examining old accounts and the like, the law1 has made twenty years the stated time in England for redeeming mortgages.

Hypothecs are another kind of pledges really arising from contract, but made real rights by the civil law. By them anciently the landlord was empowered to detain the furniture and whole stock of the tenant if he turned bankrupt, and could claim them a quocumque possessore. This arose from the practice of keeping tenants by steel-bow, by which the whole stock in the farm was the landlord’s. At present the landlord has only a right of preference, and we have not so many hypothecs as the Romans had.

All pledges are naturally personal rights, and are only made real by the civil law.