But  the  system  wjs  very  inartificial.  The  modern  civil  law
of  Europe  has  better  protected  the  rights  of  debtors  and  third
persons.  (See  Kaufman's  Mackeldy,  B.  I.  Tit.  III.)  In
France  the  creditor  who  had  but  a  tacit  hypothecation,  with-
out any  judgment,  could  not  seize  and  sell.  He  was  obliged
to  institute  judicial  proceedings,  and  obtain  a  judicial  sale.
Pothier,  De  L'Hypoth^que,  ch.  II.  §  3.  But  the  cred*
itor  could  maintain  a  real  action,  to  take  the  possession  of
the  thing  from  a  third  person,  actio  hi/pothecaria,  and  have
it  condemned,  to  the  satisfaction  of  his  debt,  aclio  mutui^  or
locatio  condiLcti,  (See  Kaufman's  Mackeldey,  396,  and  note.)
An  ordinary  libel  in  rem  to  enforce  a  lien,  includes  both  these
actions  of  the  Roman  law,  and  at  the  same  time  recovers  the
possession  and  subjects  the  thing  to  the  payment  of  the  debt.
Indeed  Pothier's  description  of  the  execution  of  an  hypothe-
cation is  as  applicable  to  a  proceeding  in  the  admiralty  to  en-
force a  Uen.  "  The  execution  of  an  hypothecation  is  made
by  the  seizure  which  the  creditor  makes  of  the  thing  hypothe-
cated and  the  judicial  sale  which  is  ordered  thereof."  '  Po-
tbier,  De  L'Hypotheque,  ch.  II.  ^  3.  Whether  he  can  make
the  seizure  himself,  only  to  be  followed  by  a  judicial  sale,  or
must  resort  to  a  court  for  both,  may  be  important  as  to  remedy,
but  does  not  affect  his  ultimate  and  essential  right  A
right  which  enables  a  creditor  to  institute  a  suit,  to  take  a
thing  from  any  one  who  may  possess  it,  and  subject  it,  by
ai  sale,  to  the  payment  of  his  debt;   which  so  inheres  in


412  MAINE.
The  Young  Meehanic.
