“Hypotheca” was a term of the Roman law, and denoted a pledge or mortgage. As distinguished from the term “pignut” in the same law, it denoted a mortgage, whether of lands or of goods, in which the subject in pledge remained in the possession of the mortgagor or debtor; whereas In the pignus the mortgagee or creditor was in the possession. Such an hypotheca might be either express or implied; express, where the parties upon the occasion of a loan entered into express agreement to that effect; or implied, as, e. p., in the case of the stock and utensils of a farmer, which were subject to the landlord’s right as a creditor for rent; whence the Scotch law of hypothec.
The word has suggested the term “hypothecate,” as used in the mercantile and maritime law of England. Thus, under the factor’s act goods are frequently said to be ”hypothecated;” and a captain is said to have a right to hypothecate his vessel for necessary repairs. Brown. See Mackeld. Rom. Law,