hypothecation

It is not necessary to the existence of the hypothecation that there should be in terms any express pledge of the vessel, or any stipulation that the credit shall be given on her account. The presumption arises that such is the fact from the necessities of the vessel, and the position of the parties considered with reference to the motives which generally govern the conduct of individuals.

A right which a creditor has over a thing belonging to another, and which consists in a power to cause it to be sold, in order to be paid his claim out of the proceeds. There are two species of hypothecation, one called "pledge" (pignus), and the other properly denominated "hypothecation." Pledge is that species of hypothecation which is contracted by the delivery by the debtor to the creditor of the thing hypothecated. Hypothecation, properly so called, is that which is contracted without delivery of the thing hypothecated. 2 Bell, Comm. (5th Ed.) 25. In the common law, cases of hypothecation, in the strict sense of the civil law, — that is, of a pledge of a chattel without claims for seamen's wages against ships are the nearest approach to it; but these are liens and privileges, rather than hypothecations. Story, Bailm. § 288. It seems that chattels not in existence, though they cannot be pledged, can be hypothecated, so that the lien will attach as soon as the chattel has been produced. 14 Pick. (Mass.) 497. (1) Conventional hypothecations are those which arise by agreement of the parties. Dig. 20. 1. 5. (2) General hypothecations are those by which the debtor hypothecates to his creditor all his estate which he has or may have. (3) Legal hypothecations are those which arise without any contract therefor between the parties, express or implied. (4) Special hypothecations are hypothecations of a particular estate. (5) Tacit hypothecations are such as the law gives in certain cases, without the consent of the parties, to secure the creditor. They are a species of legal hypothecation. Thus, the public treasury has a lien over the property of public debtors. Code, 8. 15. 1. The landlord has a lien on the goods in the house leased, for the payment of his rent. Dig. 20. 2. 2; Code, 8. 15. 7. The builder has a lien, for his bill, on the house he has built. Dig. 20. 1. The pupil has a lien on the property of the guardian for the balance of his account. Dig. 46. 6. 22; Code, 5. 37. 20. There is hypothecation of the goods of a testator for the security of the legacy. Code, 6. 43. 1. See, generally, Poth. de I'Hyp.; Poth. Cont. (Gushing Ed.) 145, note 26; Merlin, Repert.; 2 Brown, Civ. Law, 196; Abb. Shipp.; Pars. Mar. Law.

A pledge without I. An abbreviation of institutes. II In old English law. A hunhnndredor.

In English law. The freeholder of a hundred. law. A person fixed or settled in a kind of sledge, on which felons were to a woman in wedlock. Husband legally bound to one another in wedlaw. Husbandry. law. The head of a fainily, employed in House-breaking, or burglary. law. A house servant, or domestic; a; an earl's man, or vassal. One who held a house and land; a a fixed habitation. old law. House rent; a tax or tribute

A term borrowed from the civil Jaw. In so far as it is naturalized in English and American law, it into the possession of the pledgee or pawnee; or, conversely, a conventional right existing in one person over specific property of another, whieh consists in the power to cause asale of the same, though it be not in his possession, in order that a specific elaim of the creditor may be satisfied out of the proeceds. 5 The term is frequently used in our textbooks and reports, particularly upon the law of bottomry and maritime liens; thus a vessel is said to be hypothecated for the demand of one who has advanced money for supplies. In the common law, there are but few, if any, cases of hypothecation, in the strict sense of the civil law; that is, a pledge without possession by the pledgee. The nearest approaches, perhaps, are cases of bottomry bonds and claims of materialmen, and of seamen for wages; but these are liens and privileges, ratherthan hypothecations. Story, Baiim. § 288, “Hypothecation” is a term of the civil law, and is that kind of pledge in which the possession of the thing pledged remains with the debtor, (the obligation resting in mere contract without delivery;) and in this respect distinguished from “ pignus,” in which possession is delivered to the creditor orpawnee. 24 Ark. 27, See 2 Bell, Comm. 25.

2 In Roman law, a pledge without possession by the pledgee, — the possession remaining in the pledgor. ^ A security whereby realty or personalty is appropriated or pledged for the discharge of a debt or engagement, with no transfer of property or of possession, the debt being viewed as tacked to and following the thing.< There is no pure hypotheca in our law. ^ppreaches to it are, bottomry bonds, maritime liens of material -men, and seaman's wages. ^ Hypothecary; hypothecator. One who proposes and makes a contract of hypothecation. Hypothecation bond. A bottomry or respondentia bond. Evidences a marine hypothecation of a vessel or its cargo, for necessary repairs or supplies.* The hypothecation of a vessel is authorized by the necessity of obtaining the means to prosecute the voyage, and inability to get the required funds in any other way.' Established rules as to marine hypothecation are: 1. Liens for repaii-s and supplies, or for funds to pay for th^ same, are enforceable only upon proof that the same were necessary, or believed to be necessary. 2. Where proof is made of the necessity, and of credit given to the ship, a presumption arises of a necessity for the credit. 3. Necessity is proven when such circumstances of urgency are shown as would induce a prudent owner, if present, to order the repairs or supplies, or to provide funds for the cost on the security of the ship. 4. An order by the master is sufficient proof of such necessity to support an implied hypoth- ■See Code, 1887, §3072. "L. hypotheca: Gk. hypo, under; tith-, to place; to obligate, charge. » See 2 BI. Com. 159. < See Herman, Mortgages, §§ 8, 1; Taylor v. Hudgins, 42 Tex. 247 (1875). = [Stoiy, Bailm., 9 ed., § 288; The Young.Mechanic, 2 Curtis, 410 (1855). « The Grapeshot, 9 Wall. 140-41 (1869), Chase, C. J.; The Julia Blake, 107 U. S. 418 (1882), oases, Waite, C. J.; 16 Blatch. 472. ' Delaware Mut. Safety Ins. Co. v. Gossler, 96 U. S. ecation in favor of a material-man or lender of money who acts in good faith. 5. To support an hypothecation by bottomry, evidence of actual necessity is required. If the fact of necessity is left unproved, evidence is required of due inquiry and of reasonable ground of belief that the necessity was real and exigent' It communication with the owner is practicable, that must first be had.' Hypothecation bonds must be recorded by collectors of customs.' See Bottomry; Eespondkntia.

civil law. This term is used principally in the civil law; it is defined to be a right which a creditor has over a thing belonging to another, and which consists in the power to cause it to be sold, in order, out of the proceeds, to be paid his claim. There are two species of hypothecation, one called pledge, yignus, and the other properly denominated hypothecation. Pledge is that species of hypothecation which is contracted by the delivery by the debtor to the creditor, of the thing hypothecated. Hypothecation properly so called is that which is contracted without delivery of the thing hypothecated. Hypothecation is further divided into general and special. When the debtor hypothecates to his creditor all his estate and property, which he has, or may have, the ‘ hypothecation is confined to a particular estate, it is special. Hypothecations are also distinguished into conventional, legal and tacit. 1. Conventional hypothecations are those which arise by the agreement of the parties. Dig. 20, 1,5.—2. Legal hypothecation is that which has not been agreed upon by any contract, express or implied; such as arises from the effect of judgments and executions.—3. A tacit, which is also a legal hypothecation, is that which the law gives in certain cases, without the consent of the parties, to secure the creditor, such as, lst, the lien which the public treasury has over the property of public debtors. Code, 8, 15, 1.—2d. The landlord has a lien on the goods in the house leased, for the payment of his rent. Dig. 20, 2, 2; Code, 8, 15, 7.—3d. The builder has a lien, for his bill, on the house he has built, Dig. 20, 1.—4th. The pupil has a lien on the property of the guardian for the balance of his account. Dig. 46, 6, 22; Code,