Page:Harvard Law Review Volume 10.djvu/101

75 A BRIEF SURVEY OF EQUITY JURISDICTION, 75 country. As to immovable property, however, it has never been admitted, /. e.y it has never been possible, either in England or in this country, to impose an obligation upon land in favor of a creditor by simply placing the latter in possession of it. The Roman hypothecation has been admitted into the admiralty law of all modern nations, so far as the limited jurisdiction of ad- miralty has rendered its admission practicable ; but it has been rejected by the English common law, except in those cases in which it is created by the law itself. What are such excepted cases? First, when the debt is created by judgment or other matter of record, the creditor has a general hypothecation upon all land belonging to the debtor when the debt is created, or which is after- wards acquired by him ; secondly, when the law permits a plaintifif, on bringing an action, to attach property, such plaintiff has a special hypothecation upon the property actually attached ; thirdly, by the law of England, and of many of our States, all movable property found upon leased land when rent becomes due, is hypothecated to the landlord to secure the payment of such rent. There is also a class of cases in our law in which debts are secured by movable property belonging to the debtor, and which have some of the characteristics of pledges, and some of the char- acteristics of hypothecations, but as to which it is doubtful whether they can be classed as either the one or the other, namely, cases in which the debts have been created by the performance of ser- vices by the creditor on the articles which furnish the security for the debts, and which articles have come into the possession of the creditor for the purpose of his performing such services upon them. The right of the creditor in all such cases is called a lien, and there is no doubt that all such liens are instances of real obliga- tions. Indeed, the constant use by English and American lawyers of the word *' lien " to designate the right of the creditor in these and other cases of real obligations ought to have been a reminder to them that there are such things as real obligations. What are the remedies afforded by our law in cases of pledges, hypothecations, and liens, and to what extent, if at all, does equity assume jurisdiction over them? In cases of hypothecations which come within the jurisdiction of admiralty, courts of admiralty afford the same remedy that was afforded by the Roman law, and in such cases equity has no occasion to interfere. In cases of pledge, our law affords no judicial remedy whatever, though our courts of law hold that a pledgee has a power by implication, if the debt is not