Page:Harvard Law Review Volume 10.djvu/102

76 •je HARVARD LAW REVIEW. paid when it becomes due, to sell the pledge on giving due notice to the pledgor; ^ and this remedy sufficiently answers the needs of the pledgee in the great majority of cases.^ In cases of liens, not only does our law afford the creditor no judicial remedy, but our courts hold that he has no power of sale ; ^ and thus there is held to be an important difference between pledges and liens; nor will this be a cause for surprise when it is remembered that pledges are always made by the owners of the property pledged, while liens are created by the law alone, and that the implied power of sale, in the case of a pledge, is given by the pledgor. In the case of common law hypothecations, all of which, as has been seen, are created by the law alone, the same law which creates them also provides one or more remedies for their enforcement, and these remedies have, except under special circumstances,* been found sufficient. Will equity afford a remedy in the case of pledges or liens, either to the creditor or the owner of the property, when a judicial remedy is necessary? In respect to the creditor, it should be premised that, in all cases where a creditor has real security for the payment of his debt, whether his title to such security be legal or equitable, and whether it consists of ownership of the property which consti- tutes the security, or of an obligation upon it, equity, if it enforces the security at all, has one uniform mode of doing so, unless (as in the case of ordinary mortgages) such a mode of enforcing the se- curity is thought to be excluded by the agreement of the parties, namely, the Roman mode of directing a sale of the property, and a payment of the debt out of the proceeds of the sale. Moreover, this is precisely the mode of enforcing the security which is called for by every consideration of justice and convenience in the case of pledges and liens. It would seem to be a case, therefore, in which there is a legal right without any legal remedy, and in which equity has a remedy which is perfect as well as easy ; and therefore equity should afford such remedy, unless a power of sale in the creditor be thought to render a judicial sale unnecessary, or the amount involved be too small to warrant the interference of equity. i Pigot V. Cubley, 15 C. B., n. s. 701. 2 This is evident from the dearth of direct authority upon the subject of judicial sales, under decrees in equity, at the suit of pledgees. See infra, p. 77, n. i, 3 Doane v. Russell, 3 Gray, 382 ; Briggs v. B. «& L. R. Co., 6 Allen, 252 ; Busfield v. Wheeler, 14 Allen, 139, 143. 4 For an instance in which equity will direct a sale of land to satisfy a lien thereon by judgment or recognizance, see Vol. IV. pp. 125, 126.