and certainly they make out a very good case for the plaintiff. But we should have been glad to see, what sort of a case could be made on the other side. Onetor's speech, whether he was right or wrong, would have been a highly interesting document. Among the remains of antiquity there is much that is neither instructive nor amusing, which might have perished with the Alexandrian library, and the world would have sustained no loss. But I own, I do wish, that we had a few more speeches on the side against Demosthenes preserved to us. A better lesson of rhetoric there could not be, than comparing him with his adversary.

NOTE 20.

MORTGAGES.

WHEN a man lends money, and requires better security than the good faith of the borrower, it is usual to give him something valuable as a pledge, which he is bound to restore when the money is repaid. The pledge is either put into the hands of the lender, as when you deposit your watch with a pawnbroker; or it is not. In the latter case, it is secured to him by some token or symbol of ownership; as in the case of land, by conveyance or delivery of the title deeds; in the case of goods on board a ship, by giving him a bill of lading, which entitles the holder to receive them on their arrival. The pledge delivered is the pignus of the Romans, the pledge not delivered hypotheca1.

Pignoris appellatione eam proprie rem contineri dicimus, quæ simul etiam traditur creditori. At eam, quæ sine traditione nudâ conventione tenetur, proprie hypothecæ appellatione contineri dicimus.

The same distinction existed between ενεχυρον and υποθηκη, but is not invariably preserved.

There is no advantage in making the debtor part with his property, if the creditor can be otherwise secured. The watch, that lies in the pawnbroker's shop, tells not the hours either to him or to me. I may desire to mortgage my house and furniture, and yet to live in the one, and have the use of the other. The mortgagee desires only to have his principal and interest repaid. If the security be of such a nature, that it cannot be removed or destroyed, (as land,) there is no difficulty about leaving it in possession of the mortgagor, provided some means be taken to prevent his alienation. The Athenians effected this object by setting up stone pillars or tablets on the land, on which were inscribed the name of the mortgagee, the money lent, and the archon of the year in which the mortgage took place. The pillar was fixed on the boundary, or, in case of a house, on some conspicuous part thereof. In England there used in olden times to be an actual delivery of possession, livery of seisin, whereby the land was transferred to the mortgagee in the presence of the neighbours. Reiske, in a note about the Athenian pillars, says it would be a good thing

1 Whether opos (in this sense) has any reference to a terminal boundary, may well be doubted. Perhaps it denotes the limits of the respective interests of the parties. A house worth two talents, and mortgaged for one, may be considered as belonging half to the mortgagor, and half to the mortgagee. We use the words limit, limitation, in a sense not dissimilar. Thus we say: "an estate limited to me for life, remainder to my son in fee."

to have them in Germany. And Blackstone ob

serves:

66 In Glanvil's time, when the universal method of conveyance was by livery of seisin, or corporal tradition of the lands, no gage or pledge of lands was good, unless possession was also delivered to the creditor; for which the reason given is, to prevent subsequent and fraudulent pledges of the same land. And the frauds which have arisen, since the exchange of these public and notorious conveyances for more private and secret bargains, have well evinced the wisdom of our ancient law." Amusing indeed! As if at the present day every mortgage for a hundred pounds could be made notorious to the whole world! Or as if creditors are to be warned against lending their money, like poachers against trespassing, by a notice that mantraps are on the premises! Blackstone ought to have known better than to talk such nonsense. Honest Reiske might have learned from Demosthenes, that stones and boards are taken down as easily as they are put up.

Livery of seisin, notices upon the land, and such like contrivances, are the invention of a rude age, when pen, ink, and paper, and men who can use them, are scarce, and when every thing which every body does is known to all his neighbours. In a civilised and populous country such devices become unnecessary and useless.

In England, where title deeds are the evidence

of property in land, a cautious creditor will not accept a mortgage, unless all the title deeds in possession of the mortgagor are delivered to him. It might be desirable to have a public register of all conveyances of real estate, so that any man, who wished to know whether he could safely purchase land, might get the requisite information by searching the register. In Scotland and other parts of Europe they have such a register; and also in two counties in England, Yorkshire and Middlesex, though little use is made of it, owing to certain doctrines in courts of equity, which cannot here be explained.

The origin of the term mortgage is this. Formerly, when a man borrowed money, he put the creditor in possession of his land, and let him keep it, until he had paid himself out of the rents and profits. This was called vivum vadium, living gage or pledge, because the land survived the debt, that is, returned to the owner after the debt was paid. Afterwards it became more common for the debtor to remain in possession of his land, but to make a conveyance thereof to the creditor, with a condition, that it should become his absolute property in case the debt were not paid by a certain time. This was called a mortgage, or dead pledge, because the mortgagor lost his land for ever, if he failed to perform his part of the condition. It is our practice now to grant mortgages in this way; the mortgagor re