1Papinianus, Opinions, Book XI. Ad Dig. 20,1,1 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 230, Note 8.A general agreement in pledging property, even such as is afterwards obtained, is valid. In a case, however, where an agreement has been made with reference to property belonging to another which was not due to him who pledged it, but the ownership of it is afterwards acquired by the debtor, the creditor will hardly be entitled to an equitable action, if he was not ignorant that the property belonged to someone else, but the retention of the property in his possession will be the better mode of procedure. 1Where a slave is given by way of pledge, the creditor cannot sell his peculium, unless an agreement has been expressly entered into on this point. It makes no difference when the slave or his master acquired the peculium. 2Ad Dig. 20,1,1,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Noten 12, 13.Where a tract of land is given in pledge, and it is expressly agreed that the crops thereof shall also be pledged and a bona fide purchaser has consumed said crops, he cannot be compelled to restore them by an equitable action under the Lex Servia; for it is held that the lien of the pledge is not removed by usucaption, as the question of the pledge is distinct from the intention of the owner. The case is unlike the one involving the crops, since they never belonged to the debtor. 3It was agreed in a contract that, if interest on a debt was not paid when due, the crops of the property hypothecated should be set off against the interest, to the limit of that which was lawful. Although matters of less importance were included in the stipulation when it was made, it is held that the agreement is not void; since, if the lower rate of interest should not be paid at the appointed time, the parties could properly agree to pay more than the legal rate of interest. 4Ad Dig. 20,1,1,4ROHGE, Bd. 25 (1880), Nr. 85, S. 358: Darlehn zur Bezahlung einer für den Ehemann übernommenen Schuld.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 485, Note 18.Where a woman had given a tract of land to her husband and he had pledged it, and after a divorce, the woman recovered possession of her land, and gave it in pledge to the creditor on account of the debt, in this instance the pledge seems to have been only properly made with reference to the money for which she was indebted to her husband for having improved the land; that is to say where he had incurred greater expense than the value of the crops which he had taken from it; for the woman is held only to have transacted her own business to that amount, and not to have undertaken to transact that of another.

2The Same, Opinions, Book III. Where a surety who has had pledges or mortgages assigned to him after he has paid a debt for money loaned, proceeds against the debtor by way of mandate, or brings suit against him on the ground of being his creditor; if he has been guilty of negligence with reference to the pledges, this must be taken into consideration. He cannot, however, sue him by means of the direct action on pledge.

3The Same, Questions, Book XX. Where a debtor who brought suit for his property lost his case because he did not prove that the property belonged to him; the Servian Action will also be granted to the creditor where he proves that the This applied to all loans of personal property where the return was made in specie, otherwise it was a sale. Property was in the hands of the debtor at the time that the contract for the pledge was made. Where, however, the debtor who claimed an estate is defeated, the judge who presides in the Servian Action without paying attention to the decision rendered with reference to the estate, must examine the grounds on which the property was pledged. It is held to be different in cases which have reference to legacies and freedmen, where a decision is rendered in favor of him who claimed a lawful inheritance. Still, a creditor cannot properly be compared in every respect with a legatee, since legacies, in fact, are not valid unless the will is also decided to be so; for it may happen that a pledge may be properly taken, and the suit with reference to the same be improperly brought. 1A man who brought suit for the recovery of his property was defeated by an unjust decision, and afterwards pledged the property. The creditor cannot have any more right in this property than the party who gave it in pledge; therefore he will be barred by an exception on the ground that the case has already been disposed of, although the party who gained the case can by no means institute proceedings to recover what is not his own, for in this instance it must be taken into consideration not what he did not have, but what right the debtor would have in the property pledged.

4Gaius, On the Hypothecary Formula. Hypothecation is contracted by means of an informal agreement, where a party consents that his property shall be encumbered under a mortgage on account of some obligation. It does not matter in what terms the agreement is stated, as is the case in obligations contracted by the consent of the parties; and hence, if it is agreed without an instrument in writing that property shall be hypothecated, and this can be proved, the property will be bound to the extent of the agreement. Documents are drawn up with reference to these matters to enable the intention of the parties to be the more easily established, and what was agreed to is valid without them if it can be proved, just as a marriage is valid although there may be no written evidence of the same.

5Marcianus, On the Hypothecary Formula. Ad Dig. 20,1,5 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 225, Note 6.It must be remembered that property can be hypothecated for any kind of an obligation whatsoever where money is lent, a dowry bestowed, a purchase or sale made, a leasing and hiring concluded, or a mandate given; also where the obligation is absolute, or where it is for a certain time, or under some condition, or where it is assumed in pursuance of an agreement, or to secure a present indebtedness, or one previously contracted. Property can also be hypothecated on account of an obligation to be contracted hereafter, it can be done not only to secure the payment of an entire sum of money but also only a portion of the same, and it is also available in civil or prætorian obligations, as well as in those which are merely natural. Hypothecation in a conditional obligation is not binding, however, unless the condition is complied with. 1The difference between a pledge and an hypothecation is only one of words. 2A party can hypothecate property not only for an obligation of his own, but also for that of another.

6Ulpianus, On the Edict, Book LXXIII. By a general obligation, affecting all property which the party now has or may have hereafter, those things are not included which it is probable that one would not have been likely to especially encumber, as for instance, household goods. Clothing must also be left with the debtor, and among the slaves those which he uses so much that it is certain that he would not have given them in pledge, because their services are very necessary to him, or he values them on account of the affection which he entertains toward them.

7Paulus, On the Edict, Book LXVIII. The Servian Action is not available with reference to articles which are in daily use.

8Ulpianus, On the Edict, Book LXXV. Finally, it is settled that a concubine, natural children, and apprentices, or any other attendants of this kind, are not included in a general obligation.

9Gaius, On the Provincial Edict, Book IX. This rule also should be observed with reference to property belonging to the debtor at the time when the agreement was made. 1Whatever is capable of purchase and sale can also be made the object of a pledge.

10Ulpianus, On the Edict, Book LXXV. Where a debtor pledges his property to two persons at the same time, so that it is entirely bound to each of them, both can avail themselves of the Servian Action for the entire amount against other persons. When a dispute arises between them, the condition of the possessor is the better one, and he will be entitled to the exception, “You could have the property, if it had not been agreed that it should also be pledged to me.” If, however, it was the intention of the parties that the property should be encumbered to each one equally, an equitable action will lie as between themselves and against third parties, by means of which they each may obtain possession of half the property.

11Marcianus, On the Hypothecary Formula. Where he who has charge of property belonging to the government borrows money for it, he can encumber the property. 1Where an agreement is entered into that the use of whatever is pledged can be made by the creditor, and some one is placed in charge of the land or of the house, he can retain possession of the same instead of the pledge, until the money is paid to him; since he can take the profits instead of interest, either by leasing them, or by himself collecting them, or by occupying the premises. Hence, if he should lose possession of the property, it is customary to make use of an action in factum. 2Ad Dig. 20,1,11,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 205, Note 4; Bd. I, § 239, Note 2.The question arose whether an usufruct can be given by way of pledge or mortgage, if the owner of the property agrees to this, or only he who is entitled to the usufruct gives his consent? Papinianus, in the Eleventh Book of Opinions, says “that the creditor must be protected, and if the proprietor desires to institute proceedings against him to prevent his using the right of usufruct against his consent, the Prætor will protect him by an exception, if it had not been agreed between the creditor and the party to whom the usufruct belonged, that the usufruct should be pledged; for as the Prætor protects the purchaser of the usufruct, why should he not also protect the creditor?” On the same principle, an exception can be filed against the debtor. 3Ad Dig. 20,1,11,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 227, Note 10.The servitudes of urban estates cannot be given in pledge, and therefore an agreement cannot be made for their hypothecation.

12Paulus, On the Edict, Book LXVIII. Pomponius says that it should be held that an agreement can be made to pledge a right of a pathway, and the right to drive cattle, or to conduct water in such terms that, if the money is not paid the creditor can make use of such servitudes, provided he has adjoining land; and if the money should not be paid within a certain time, he can sell said servitudes. This opinion should be adopted on account of its benefit to the contracting parties.

13Ad Dig. 20,1,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 137, Note 8.Marcianus, On the Hypothecary Formula. Where a flock is liable by way of pledge, any future increase of the same will also be liable. If, however, the entire flock should be renewed through the death of those previously pledged, it will still be liable as pledged. 1A slave who is to be free conditionally can be pledged, although the right to the pledge, as security, will be extinguished as soon as the condition is fulfilled. 2Ad Dig. 20,1,13,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 239, Note 16.As it is held that property in pledge can also be encumbered by the creditor, so long as both debts are due the pledge will be bound to the second creditor, and an exception as well as an equitable action should be granted him. If, however, the owner should pay the debt, the pledge will also be released. It may be doubted, however, whether or not an equitable action should be granted to the creditor on the ground that money has been paid. For what if the obligation has been discharged? What Pomponius wrote in the Seventh Book of the Edict is correct, namely, that if he who gave the property in pledge owes money, after it has been collected he should pay his own creditor with it. If, however, he owed some article, and delivered it, it should remain with the second creditor by way of pledge. 3Ad Dig. 20,1,13,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 239, Note 2.A creditor can lawfully claim whatever stands upon the surface of the land, against any possessor whomsoever; whether a mere informal agreement with reference to its encumbrance was entered into, or whether possession of it was delivered which was subsequently lost. 4Ad Dig. 20,1,13,4ROHGE, Bd. 11 (1874), Nr. 27, S. 69: Natur der Judicatsklage. Unveränderter Charakter des Anspruchs.Even if the creditor obtains a judgment against his debtor, the mortgage still continues to exist, because an hypothecary action has its own condition; that is to say, it remains effective where the money is not paid or security given. If I institute proceedings personally against the defender of an action, even though he may have given me security and lost his case, the hypothecation still remains in force. With much more reason, therefore, where proceedings are instituted personally either against the principal debtor, or against the surety, or against both together, even though judgment has been rendered against them, the hypothecary obligation still continues operative. By this it appears that the creditor has not been satisfied, because he has obtained a right of action on the judgment. 5Ad Dig. 20,1,13,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 89, Note 13.Where property is conditionally encumbered on account of a debt, it must be held that proceedings cannot properly be brought before the condition has been fulfilled; since nothing is owing in the meantime. But where the condition upon which the debt is dependent arrives, if it had been contracted under a condition, the party can then bring suit. If, however, the debt is due immediately, and the hypothecation was made under a condition, and the creditor has brought the hypothecary action before the condition was fulfilled, it is, indeed, true that the money has not been paid, but it would be unjust for the lien to be released. Therefore, a bond should be executed by order of the court, providing that if the condition is fulfilled and the money is not paid, the property hypothecated should be given up, if it is in existence. 6If the hypothecation was made to secure the interest also, the interest should be paid. We say that the same rule applies with reference to a penalty.

14Ulpianus, On the Edict, Book LXXIII. The question arose whether it would be permitted, if the day of payment had not yet arrived, to take action with reference to the pledges? I think that permission to do this should be granted, because the party has an interest in doing so. Celsus also gives the same opinion. 1In those instances where a natural obligation exists, it is settled that the pledge remains encumbered.

15Gaius, On the Hypothecary Formula. Ad Dig. 20,1,15 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 230, Note 10.Property which is not yet in existence but which will come into existence hereafter, can be hypothecated, as for instance, fruits on the trees, the offspring of a female slave, the increase of flocks, and other things which may be produced, are subject to hypothecation. The same rule should be observed whether the owner of land makes an agreement either with reference to the usufruct of the same, or concerning anything which may come into existence thereon, or whether he who has the usufruct does so; as Julianus stated. 1When it is stated that the creditor must prove that the article in question was included in the effects of the debtor when the contract was made, this refers to an agreement expressly entered into, and not to the one which it is usual to insert into undertakings every day; namely, that where certain property has been specifically hypothecated, whatever else now remains in possession of the debtor, or whatever he may hereafter acquire, shall be liable; just as if the said property had been explicitly encumbered. 2Where parties who have already encumbered their property also bind themselves to a second creditor, in order that the risk may be avoided which those are accustomed to run who hypothecate the same thing several times, it is usual for them to provide that the property is hypothecated to no one else except Lucius Titius, for instance; and that it is liable to such an extent that the encumbrance will exceed the prior obligation, so that it will be pledged to the amount of the excess, or for the entire amount, when the property is released from the lien for the first debt. In this instance, it should be considered whether the property is thus encumbered if such an agreement has been made, or whether it has been simply agreed that only the surplus shall be subject to hypothecation. It is presumed that the entire property is included in the agreement after it has been released by the first creditor. Is there not still a portion of the same encumbered? The opinion which we have first stated is the better one.

16Marcianus, On the Hypothecary Formula. Where land which has been hypothecated is afterwards increased by an alluvial deposit, it is all liable. 1If property is hypothecated without the knowledge of the owner, and the latter afterwards ratifies the transaction, it must be held that what he ratified he intended to have a retroactive effect to the time of the agreement; but the wishes of those only will be observed who have a right to pledge the property. 2Where property is hypothecated, and its form is afterwards changed, an hypothecary action will still lie; just as where a house is hypothecated, and its site afterwards becomes a garden. The same rule applies where the agreement was made with reference to a vacant lot, and a house is subsequently built upon it; or where vines have been planted upon ground which was without them when it was hypothecated. 3The question is asked, where an action is brought for the recovery of a pledge, whether he who is sued is in possession of the property which is the subject of the action. For, if he is not in possession of it, and has not committed fraud to avoid being in possession, he should be discharged. If, however, he should be in possession, and either pays the debt, or surrenders the property, he should also be discharged, but if he does neither of these things, judgment should be rendered against him. Where he is willing to give it up, but cannot do so because it is not at hand, or is at a distance, or in a province, it is customary for security to be furnished, since, if the party should give security to deliver it, he will be discharged. But if he has ceased to hold possession through fraud, and though, having made every exertion, he is unable to deliver the property, judgment shall be rendered against him for the amount to which the plaintiff will swear in court, as in other real actions; for if judgment should be rendered against him for the amount that is due, of what advantage would a real action be, as he could recover the same amount by bringing a personal one? 4The judge should sometimes decide with reference to the profits obtained by the person from the property which is the subject of the action, and render judgment against him for the profits from the time that issue was joined. But what if the land should be of less value than the debt? For he could not decide anything with reference to the profits previously obtained, unless they were still in existence, and the property was not sufficient to satisfy the claim. 5The question is asked, “How can a creditor obtain for himself the property hypothecated which has been adjudged to him by a decree of court?” He cannot bring an action to recover its ownership, but he can bring an hypothecary action; and if he is met by the possessor with an exception on the ground that the case has already been decided, he can reply that “that decision is favorable to me.” 6Ad Dig. 20,1,16,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 235, Note 8.Where a debtor has had judgment rendered against him for a larger sum than the principal and interest together, because he refused to surrender the pledge; and if he only pays the amount of the debt, will the hypothecation be released? I do not approve of this, so far as it relates to the subtlety of the law and the authority of the opinion; for the entire obligation seems to be transferred to the decision, and hence the money is due; but I think it is more equitable for the hypothecation to be released, if the party only pays the amount which he actually owes. 7The property of another can be legally hypothecated under the condition that it will become the property of the debtor. 8Where two creditors enter into an agreement with reference to hypothecated property, the question arises to what extent has each one a lien on the same; whether for the entire amount of the debt, or for an equal portion with the other? It is the better opinion that each one has a lien on the pledge for the amount of the debt. But how would it be if both of them should institute proceedings against the possessor; will the property be encumbered for the amount due to each one, or for the entire amount, as if it was bound for the whole to each of them? It must be held that they can only bring an action for a portion, if the property was pledged separately to both of them on the same day. If, however, the understanding was that it should be encumbered to both of them at the same time, each of them can legally proceed with reference to the entire property; otherwise each one can only bring suit with reference to a share of it. 9A pledge or an hypothecation can be made as follows, “If the debt is not paid within a certain time, the creditor may hold possession of the property by the right of a purchaser, and an estimate of the value of the same must then be made at a just price.” In this instance the transaction is held to be a species of conditional sale. The Divine Severus and Antoninus stated this in a Rescript.

17Ulpianus, On the Edict, Book XV. The right to avail himself of his pledge gives the creditor an action in rem.

18Paulus, On the Edict, Book XIX. If I receive property in pledge from anyone who can make use of the Publician Action, because he has not the ownership of the same, the Prætor will protect me by the Servian Action to the same extent as he will the debtor by the Publician.

19Ulpianus, On the Edict, Book XXI. Where a party receives several articles in pledge, he is not compelled to release one of them, unless he receives the entire amount that is due to him.

20The Same, On the Edict, Book LXIII. When it is agreed that a party who has lent money for the repair of a house shall receive from the rents, by way of pledge, the money which was loaned, he also is entitled to an equitable action against the tenants; just as in the case of security which the debtor has given to the creditor by way of pledge.

21The Same, On the Edict, Book LXXIII. Ad Dig. 20,1,21 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 73, Note 12.If an agreement is made between a tenant and my agent with reference to a pledge, and I ratify the agreement, or direct it to be made; it is held that it is entered into between the tenant and myself. 1Where a debtor purchases in good faith a slave from some one who is not his master, and pledges him, and retains possession of him, there is ground for the Servian Action; and if the creditor proceeds against him, he can meet the exception by a reply on the ground of fraud. This was the opinion of Julianus, and it is reasonable. 2Ad Dig. 20,1,21,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 382, Note 11.Any other advantage or disadvantage accidentally arising with reference to the pledge must be enjoyed, or sustained by the debtor. 3If the property pledged is not returned, damages must be assessed in court against the possessor; but it is evident that the amount will not be the same where the proceeding is instituted against the debtor, as where this is done against any other possessor; for, so far as the debtor is concerned, a creditor cannot collect more than the former owes, because he has no greater interest, but from other possessors he can recover the value of the pledge over and above the amount of the debt, and he must return the same to the debtor, if an action on pledge is brought against him.

22Ad Dig. 20,1,22Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 26, Note 3; Bd. I, § 230, Note 9.Modestinus, Differences, Book VII. Where anyone, without my knowledge, pledges my property to Titius, his creditor, and I become the heir of Titius, the pledge, which indeed was not valid at first, does not immediately become so, but an equitable action on pledge will be granted to the creditor.

23The Same, Rules, Book III. A creditor can legally lease lands hypothecated to him by way of pledge. 1The obligation of pledge can also legally be contracted between parties who are absent.

24The Same, Rules, Book V. Where anyone is forbidden to purchase property within certain limits, he is not prohibited from receiving such property in pledge.

25The Same, Opinions, Book VIII. Where the contract for a pledge is void or worthless, there is no ground for the retention of the pledge by the creditor, not even if the property of the latter belongs to the Treasury.

26The Same, Opinions, Book IV. A surety obtained permission from the court that, before he paid the debt, he could obtain possession of the pledges, provided he satisfied the creditors. He did not satisfy them, and then the heir of the debtor offered to pay the creditors. I ask whether the surety can be compelled to return the pledges; and Modestinus answered that he can be compelled to do so. 1A father easily persuaded his emancipated son, Seius, who has borrowed a sum of money from Septicius, to write an acknowledgment of indebtedness with his own hand, because he himself was unable to do so at the time, for the purpose of giving a house belonging to his said son by way of pledge to his creditor. The question arose whether Seius could legally retain possession of this house with his other property, since he had renounced the estate of his father, and could be interfered with for the sole reason that he had written the said document with his own hand, by the direction of his father, as he did not give his consent to his father either under his own seal or by any other statement in writing. Modestinus answered that when Seius wrote with his own hand that his house would be hypothecated, it was evident that he gave his consent to the obligation. 2Lucius Titius hypothecated certain lands and the slaves that were attached to them. His heirs having divided the lands between them, substituted other slaves for those who died. The creditor afterwards sold the land together with the slaves; and the question arose whether the purchaser could properly bring an action to recover the slaves which had recently been placed upon the land. Modestinus answered that if the slaves were not themselves pledged, and were not the offspring of female slaves who had been encumbered, they were, by no means, bound to the creditor.

27Ad Dig. 20,1,27Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 129, Note 7; Bd. I, § 249, Note 5.Marcellus, Digest, Book V. A certain man gave a slave in pledge, and then placed him in chains for some trifling offence, and afterwards released him; and, because the debtor did not pay the debt, the creditor sold the slave for a lower price than he was worth when pledged. Can an action be brought by the creditor against the debtor because the suit on the loan was not sufficient to enable him to recover the deficiency? What if the debtor should have killed or blinded the slave? If he had killed him, he would be bound to produce him in court, but if he had blinded him, we should grant an action for malicious injury to the amount of the interest of the creditor; because by disabling or confining the slave the debtor had diminished the value of the pledge. Let us suppose that no action will lie on the ground of a loan, for the reason that the case has been lost. I do not think that the matter is unworthy of the attention and assistance of the Prætor. Ulpianus says, in a note, that if the debtor put the slave in chains in order to injure the creditor, he will be liable; but if he did so because he deserved punishment, he will not be.

28Paulus, Questions, Book III. Where a legacy was left to a son under paternal control on a certain condition, his father received his own property from the heir by way of pledge. The father being dead, or the son emancipated, and the condition upon which the legacy was based having been fulfilled, the legacy becomes due to the son. The father could not legally bring an action to recover the pledge, nor could the son, who had now begun proceedings for that purpose, do so; nor could he have any right to the pledge which was acquired during the preceding time; just as has been stated in the case of a surety.

29The Same, Opinions, Book V. Paulus was of the opinion that a general agreement covering all the property of the debtor was sufficient to establish the obligation of pledge; but that such property as was not included in that of the deceased, but was afterwards acquired by the heir in some other manner, could not be recovered in an action by a creditor of the testator. 1Where female slaves are pledged, the children born of them are also considered to be encumbered. Still, what we have stated with reference to their children being liable, whether an express agreement was made with reference to them or not, only applies where their ownership is acquired by the person who encumbered them, or to his heir. If, however, the children were born while the female slaves were in the possession of another master, no liability will attach to them under the pledge. 2A house which was given in pledge was burned; Lucius Titius purchased the ground on which it had stood, and erected a building thereon. The question arose as to what became of the pledge? Paulus answered that the right to the pledge still remained, and therefore the right of the soil was held to follow the usufruct; that is to say, so far as the right of pledge was concerned; but the bona fide possessors will not be compelled to surrender the house, unless the builder should receive the expenses incurred in its construction, to the extent that the property was rendered more valuable. 3Where a slave, with the knowledge and consent of his master, enters into an agreement that all the property of the latter shall be hypothecated, the slave himself, who made the contract, will form part of the property pledged.

30The Same, Opinions, Book VI. The risk of a claim secured by pledge which is sold by the creditor, must be assumed by the purchaser, if the former proves that the property was actually encumbered.

31Scævola, Opinions, Book I. The condition under which certain land subject to the payment of rent to the State was, that if, after a certain time, the rent should not be paid, the land would revert to the owner. It was afterwards given in pledge by the possessor, and the question arose whether this could legally be done? The answer was that the pledge was good where the payment of money was involved. 1It was also asked where the debtor, as well as the creditor, were in default for the payment of the rent, and for this reason a judicial decree had been rendered that the land belonged to the owner in compliance with the terms of the contract, whose position was preferable? The answer was that, according to the facts stated, as the rent had been paid, the owner might avail himself of his privilege, and the right to the pledge was extinguished.

32The Same, Opinions, Book V. A debtor agreed that everything belonging to his land and everything added to it, placed upon it, brought to it, born upon it, or derived from it, should be encumbered. A portion of the said land was without tenants, and the debtor, for this reason, gave it to his steward to be cultivated, and furnished him at the same time with the slaves necessary for that purpose. The question arises, whether the slave, Stichus, who was the steward, and the other slaves designated for the cultivation of the land, as well as the underslaves of Stichus, were encumbered. The answer was that only those who were brought there with the intention of the master that they should remain permanently, and not such as were employed temporarily, were subject to the pledge.

33Tryphoninus, Disputations, Book VIII. Where anyone promises to pay either you or Titius, he cannot recover what he has paid to Titius; but if he has given him a pledge, and the latter received it before payment, he can recover it.

34Ad Dig. 20,1,34Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 137, Note 8.Scævola, Digest, Book XXVII. Where a debtor gave a shop in pledge to his creditor, the question arose whether the transaction was void, or whether it should be held that under the designation of “shop” all of the property contained therein was pledged. And if the party should sell the said merchandise, from time to time, and purchase other goods and place them in said shop, and then should die, could the creditor recover by an hypothecary action everything found there, as the merchandise had been changed, and other articles substituted? The answer was that whatever was found in the shop at the time of the death of the debtor was held to have been pledged. 1It was also asked, where a letter, such as the following, was sent, namely: “When I borrowed five hundred denarii of you, I requested you not to take a surety but to accept a pledge from me, for you know absolutely and with certainty that my shop and my slaves are not encumbered to anyone else but yourself, and that you have confidence in me as an honest man.” Is the obligation of a pledge incurred? Or is this letter of no force, because it has no date, and no reference to the consul? The answer was that, as an agreement with reference to pledges seems to have been made, the obligation derived from a pledge is not void, merely for the reason that the date and the name of the consul do not appear, and no seals are attached to the document. 2A creditor accepted from a debtor, by way of pledge, all the property which he had or might have subsequently. The question arose whether the money which the said debtor had borrowed from the other party, as it was included in his property, would be bound to the creditor by way of pledge? The answer was that it would.

35Labeo, Probabilities of the Epitomes, by Paulus, Book I. If a house which you have a right to sell under the terms of a contract of pledge is consumed by fire, and is afterwards rebuilt by your debtor, you will have the right with reference to the new building.