§ 84. The result achieved by the use of fictions in ejectment in England, after many years of effort, was accomplished summarily in South Carolina by a simple statutory enactment. Why the English Parliament and the legislatures of other States of our Union did not enact statutes somewhat similar in character, substituting ouster for trespass, and at a single stroke demolish real writs and the fictions in ejectment is a mystery.

§ 85.The Legislature of South Carolina solemnly resolved,1 as a justification for the change, that "since the disuse of real actions, the common method of trying the title to lands has been by action of ejectment, which, depending upon a variety of legal fictions, is rarely understood but by professors of the law." Still, the name of the new remedy, and the practice requiring proof of a trespass, which certainly had no logical or necessary connection with the trial of the title, occasioned some confusion.

$86. The writ of right was never employed in South Carolina, and the profession seem to have shunned the whole system of real actions. If the "variety of legal fictions" in ejectment was incomprehensible to the profession in South Carolina, it is certainly easily understood why no effort was made to utilize real writs.

§ 87.Trespass to try title has at length been swept away in South Carolina, and an action for the recovery of real property substituted in its stead.3

4

The essential principles governing real actions, ejectment, and trespass to try title, are uniform in this country as to the interests for which the actions will lie, the titles that will support them, the pleadings, evidence, defences, judgments, writs of possession, and new trials. They constitute practically one general method of procedure disguised under a variety of names. For this reason cases decided under the different systems will generally be cited side by side in this treatise.

1 Stat. at Large, S. C. vol. V, p. 170, § 4.
2 Frost ads. Brown, 2 Bay (S. Č.), 133-144.

Revised Statutes South Carolina (ed. 1873), p. 586; Ibid, chap. 147,
Greenl. on Ev. vol. 2, § 303, p. 286.

p. 801.

70. THE GAGE OF LAND IN MEDIEVAL

ECON

ENGLAND 1

BY HAROLD DEXTER HAZELTINE 2

CONOMIC and legal development in England is, in certain of its grand outlines, strikingly illustrated by the history of forms of security on property. One sees in England the gradual advance from a natural to a money and

This Essay was first published in the Harvard Law Review (1903-4), vol. XVII, pp. 549-557, vol. XVIII, pp. 36-50.

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NOTE: The author regrets that, owing to pressure of other work, he has not had time to revise and recast the present essay. He desires therefore to mention the fact that in his more recently published Geschichte des englischen Pfandrechts he has adopted a terminology slightly different from that employed in his Englisches Mobiliarpfandrecht im Mittelalter and in the present essay. Instead of classifying the various forms of security on property under the headings “usufructgage (Nutzpfand)" and "property-gage (Proprietaetspfand)" the author has in his later work grouped the various species of gage under the generic names usufruct-gage (Nutzpfand)" and " substance-gage (Substanzpfand).” Under "substance-gage (Substanzpfand)" the author has included all forms of security where the res itself, as distinguished from the mere rents and profits arising from the res, is to be viewed as gaged for the debt. The term " substance-gage (Substanzpfand)" corresponds therefore to the term "property-gage (Proprietaetspfand) as the latter term was employed in the earlier essays. In the Geschichte des englischen Pfandrechts the term "property-gage (Proprietaetspfand)" has been restricted to forms of security where there is a conditional conveyance of the proprietary right as distinct, for example, from forms where the creditor is given a mere power of sale.

2 Reader in English Law in the University of Cambridge, since 1907; Lecturer in Law at Emmanuel College, Cambridge, since 1906, and Fellow of Emmanuel College, since 1908. A. B. Brown University, 1894; LL. B. Harvard University, 1898; J. U. D., Berlin University, 1905; Hon. M. A., Cambridge University, 1906. Lecturer in the Law School of the University of Chicago, 1906. Professor of Law in the University of Wisconsin, 1908.

Other Publications: Appeals from Colonial Courts to the King in Council (Proceedings of the American Historical Association), 1894; Englisches Mobiliarpfandrecht im Mittelalter (Sonderabdruck aus der Festgabe für Hübler), Berlin, 1905; Zur Geschichte der Eheschliessung nach angelsächsischem Recht, Berlin, 1905; The Exchequer of the Jews (Law Quarterly Review, XVIII, pp. 305 et seq.), 1906; Die Geschichte

credit economy, the progress from the rural and agricultural life of Anglo-Saxon times to the town and national life, with its industry and its commerce, of the centuries that follow the coming of the Danes and the Normans. A heathen and tribal society gives way to Christian and to feudal institutions; and at the same time there is early developed a strong kingship, a strong central government, that is to influence in a masterful way the course of economic and legal history down to our own day. Acting as a check on the growth of local custom and of feudal justice, and making the towns subserve its own economic purposes, this powerful central government has its foreign and commercial policy and its system of Common Law and Equity, with the good right arm of judicial execution to enforce the decrees of its courts.

Unless we err, the English law of gage, like the law of other Germanic countries, starts from the conception, in the Anglo-Saxon days of barter and self-help, that the wed or vadium delivered to the gagee is a provisional satisfaction, a provisional payment, a redeemable forfeit. The res and the claim are regarded as equivalent; and, should the gagor not redeem, the gagee must look exclusively to the res for satisfaction. The gagee has no personal action against the gagor; and the gagor, should he fail to redeem the res, has no right to the surplus, if the res be worth more than the amount of the gagee's claim. This forfeit-idea is the original idea underlying the wed, and this conception persists. In course of time, with the development of credit and of judicial execution, of varieties of obligation and of forms. of action for their enforcement, there branch off two other ideas: (1) the idea that a res of trifling value may be given as a binding contractual form,1 and this at length develops in the English ecclesiastical courts into the formal contract by pledge of faith; and (2) the idea that, if the des englischen Pfandrechts (No. 92 in Gierke's Untersuchungen zur deutschen Staats- und Rechtsgeschichte, Breslau), 1907; Notice of an Early Year-Book MS. (James, Descriptive Catalogue of the Manuscripts in the Library of Gonville and Caius College, Vol. II, Cambridge, 1908); Early History of Specific Performance of Contract in English Law (Festgabe für Kohler, Stuttgart, 1909).

1Cf. Thayer, Evidence at the Common Law 393.

res be of substantial value, it is merely a collateral security to a personal claim, the gagee being entitled to sue the gagor personally and the gagor having a right to call the gagee to account for the surplus. Along with this transformation of the primitive forfeit notion into the idea of collateral security there is another line of development that must be most carefully distinguished therefrom. Inasmuch as the early gage transaction is merely a provisional payment, the property right of the gagee on default lacks the Auflassung, the quit-claim, the final abandonment of all right in the res that is in Germanic law necessary to a complete and absolute title. The gagee cures this defect by going into court and getting the court to declare his title absolute; and, later, by getting the gagor in advance to put a resignatio-clause in the deed itself. By such a clause, however, the gagee evades the obligation that the law has at length imposed upon him of returning the surplus; and the law enters and forbids this evasion.2

It lies beyond the scope of the present paper to prove, by a discussion of English texts, that this has been the course followed by our own law. Keeping in mind, however, the outlines of this general Germanic development, we wish merely to distinguish as clearly as possible the various forms assumed by the English medieval gage of land. A consideration of the many difficult questions connected with the law of securities on land, not only in its historical development, but also in its present-day application to concrete cases that come before the courts, will, it is believed, be ren

'On Schuld and Haftung compare von Amira, Nordgermanisches Obligationenrecht (Altschwedisches Obligationenrecht [1882]) 22-42, and (Westnordisches Obligationenrecht [1895]) 56 et seq.; 2 Brinz, Pandekten (1879) 1 et seq. See also 1 Chironi, Trattato dei privilegi, delle ipoteche e del pegno (1894) 1 et seq.

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2 For the details of this view of the Germanic development in general, but without a consideration of the English texts, see 2 Heusler, Institutionen des deutschen Privatrechts 128-153, 225-250; Wigmore, The Pledge-Idea, 10 Harv. L. Rev. 321-341 (citing, in his discussion of the historical significance of the “release" and quit-claim," Professor Ames' essays on Disseisin, 3 Harv. L. Rev. 23, 313, 327, unfortunately not accessible to the present writer during the preparation of this article). Compare also Wigmore, The Pledge-Idea, 11 Harv. L. Rev. 29.

dered all the easier by such a preliminary survey, rapid and inadequate though it be.

It helps to make the various medieval forms stand out sharply, if we group them into gages with immediate possession of the creditor, and gages with possession of the debtor until default; and this is indeed but the fundamental distinction that underlies the fiducia or the pignus and the hypotheca of Roman law,1 the aeltere Satzung and the juengere Satzung of German law,2 the engagement and the obligation of French law.3

Then, looking at execution or the enforcement of the security, we may make several further distinctions. If we adopt for the moment and it will tend to clearness the terminology of German legal science, we may classify English forms of security on land with immediate possession of the creditor as usufruct-gage (Nutzpfand) and as property-gage (Proprietaetspfand). In forms of usufruct-gage the creditor has merely a right to take the rents and profits. In forms of property-gage the res itself, either by forfeiture or by sale, may be made to answer the claim of the creditor; if by forfeiture, whatever the value of the land may be, we may call the security a forfeiture-gage (Verfallspfand), and if by sale, with a return of the surplus proceeds to the debtor, the security may be designated as a sale-gage (Verkaufspfand). There may indeed be combinations of the usufruct-gage and the property-gage; and every property-gage with immediate possession of the creditor necessarily involves a temporary usufruct-gage, a right to take the rents and profits until the debtor's default.4 Speaking now only for the English medieval law, we believe that gages where the debtor remains in possession until default may also be classified, according to this same principle, as usufruct

1See 1 Dernburg, Pfandrecht 1-95.

'See von Meibom, Das deutsche Pfandrecht; Brunner, Grundzüge der deutschen Rechtsgeschichte 188-191.

'See Franken, Das französische Pfandrecht im Mittelalter 1-36; Viollet, Histoire du droit civil français (1893) 733-748.

On the medieval law on the continent see especially Franken, Das französische Pfandrecht im Mittelalter 207, 208; and Brunner, Grundzüge der deutschen Rechtsgeschichte 188-191. Compare also Beauchet, Histoire de la propriété foncière en Suède (1904) 424 et seq.