Page:Black's Law Dictionary (Second Edition).djvu/593

From Wikisource
Jump to navigation Jump to search
This page needs to be proofread.


HYPOTHECA

that year, and over the cattle and stocking on the farm i'oi- the current years rent, which last continues for three months after the lust conventional term for the payment of the rent. Bell.

HYPOTHECA. “Hypotheca" was a term of the lloinan law, and denoted a pledge or Li]! ‘W .;.e As distinguished from the teim “,.- Mm " iu the S.ll.llO i.lW. it denoted a mort- , i. ., whether of luniis or of goods, in which the aLluJl:CI. in pled.e remained in the possew m of Hie moi1',,'agor or debtor: whereas in the p -nus the mortgu:-e or creditor as in the puss sion. Such an hypotheca might be eiih. ' e.\'press or implied; e_\pre-.;, where the 1i.iiI.ies upon the OCLASIOIJ of a loan entered into e.\piess agreement to that effect; or implied, as. c. g., in the case of the stock and uteusiis of a farmer, which were subject to the landlord's right as a creditor for rent; “hence the Scotch law of hypothee

The word has suggested the term “hypothecato." as used in the mercantile and ini1ritinie law of Engluml Thus. under the factoi's ii('L. goods are frequently said to be "hypoLhecated;" and a captain is said to li.1\"e a right to il)[)0l.ilL‘L‘ilt(3 his vessel for necessary repairs. Brown. See Mackeid. lwni. Law, §§ 334-359.

HYPOTHECARIA ACTIO.}} Lat. In the civil law An hyputhecziry action; an action for the enforcement of an llr1]f)OHl€C|1v, or right of moitgage; or to obtain the surrender of the thing mortgaged. Inst. 4, 6. 7; Maclieid Rom. Law. § 356. Adopted in the Civil Coiie of Louisiana. under the name of “Pac- iian Ii)/potliéoo~m'e," (translated, “action of inortg.ige.") Article 3361.

HYPOTHECARII CREDITORES. Lat. In the ciiii lau. Hypothecary creditors; those who loaned money on the security of an Iiypomccri. (:1. 71.) Calvin.

HYPOTHECARY ACTION. The name of inn action alioweii under the civil law for the enforcement of the claims of a credit- or by the contract or hypotheoa. Lovell v. Cru_-sin, LE6 U. S. 130. 10 Sup. Ct. 1024, 34 I. Ed. 372.

HYPOTHECATE. To pledge a thing without delivering the possession of it to the pied-gee. “The master, when abroad, and in the absence of the owner, may Il_7/Ilflthbfrltfl the ship, freight, and cargo, to raise money requisite for the completion of the voyage." 3 Kent. Comm. 171. See Spect v. Sport. 88 Cal. -137, 20 Pac. 203, 13 L. R. A. 137. 22 am. St. Rep. 314; Ogden v. Lathrop. 31 N. Y. Super. Ct. 651.

I-IYPOTHECATION. A term borrowed from the civil law. In so far as it is naturalized i.u English and American law, it means a contract of mortgage or pledge in

585

HYPOTHETICAL QUESTION

which the subject-inatter is not delivered into the possession of the pleiigee or pawuee; or, conveiseiy, a conventional light existing in one person over specific proiierty of an- other, whlch consists in the power to cause a sale of the sime. though it lie not in his DI -- ssiou. in order that a special claim of the creditor may be satisfied out of the proceeds.

The term is frequently used in our tert- books and reports. particularly upon the law of hottomry and maritime liens: thus :1 vessel is said to be hypothecated for the demand of one “ho has advanced money i'or supplies.

In the common law, there are lint few, if any. cases of bypotherntion, in the strict sense of the civil law; that is. a pledge without possession by the plcd_:i.e. The nearest uppromiies. per- haps, are cases of bottoiury bonds and claims of matcriiiiiucu, and of seamen for “ages; but these are liens and privileges, rather than hy- potliecations. Story, Bailm § 2358.

“liypothecatiou" is a term of (be civil law, and is that kind of pledge in which the possession of the thing pledged remains with the debt- or. (the obligation resting in more contract r\ithout deiivcry,) and in this respect distinguished from "pvi_1;iiii.s." in which possession is deiivered to the creditor or pain nee. \\ hitney v. Peuy, 21 Ark. 27. See 2 Bell, Comm. 2').

HYPOTHECATION BOND. A bond given in the contract of bottoniry or respondentin.

1-iizPo'ri-i}‘:QUi-:. In French law. Hy- pathecation; a mortgage on real property; the right vested in a creditor by the assignment to him of real estate as security for the payment of his debt, whether or not it be accompanied by possession. See Clv. Coda La. art. 3360.

It corresponds to the mortgage of real prop- erty i.u English law, and is a real charge. foliouing the DTODEITY into whosesoever hands it comes. it may be Iégalc, as in the ease of the charge which the state has over the lnuds of its arronutuuts, or which a married woman has over those of her husband: imliciaire, when it is the result of a jl'l(lL'i.liEl.|t of a. court of justice; uiid aannoeii.ii'oneIle, when it is the result of an flgl‘(.E'l.DeIlt of the parties. Brown.

I-IYPOTI-IESIS. A supposition, assumption, or theory; a theory set up by the prosecution. on a criminal trial, or by the defense, as an explanation of the facts in evi- dence, and a ground for inferring guilt or innocciice, as the case may be, or as indicating a probable or possible motive for the crime.

IIYPOTHETICAL QUESTION. A combination of assumed or proved facts and cir- cumstances. stated in such form as to constitute a coherent and specific situation or state of facts. upon which the opinion of an expert is asked, by way of evidence on a trial. Howard v. People. 135 111. 552. 57 N. F}. 44 People v. Durrant, 116 Cal. 216. 48 Pac. S Cowiev r. People. 83 N. 1‘. 46-1, 38 Am. Rep. 464; Stearns v. Field, 90 N. Y. 641.

K