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This chapter analyzes the development of the mortgage among the new market practices, and new financial instruments, that were critical to the growth of the “empire of credit” stretching across the eighteenth-century Atlantic. The mortgage was an especially important part of this new credit economy because it lay at the nexus between landed and commercial wealth, and played a generative role in financing improvement and diversification. It is not surprising, then, that mortgage law, as a critical component of finance and credit relations, saw real development in this same period. This essay compares and connects the work of brokers, lawyers, and judges who constructed and evaluated mortgage deals, and examines the transmission and testing of the doctrine of the equity of redemption. Particular attention is paid to challenges to the operation of mortgage doctrine in Ireland, and other parts of the British empire, and what these signify for the broader history of legal and economic development in the eighteenth century.
For more than two and half centuries, the case of Emmanuel College v Evans (1626) has been understood as a leading case for the origin of the principal doctrine of mortgage law: the equity of redemption. A closer inspection shows that it has nothing to do with the equity of redemption. This article examines Emmanuel College to see what it was actually about and where this leaves the history of mortgages in equity. In so doing, the article demonstrates the status of Emmanuel College as a leading case to be invalid, and exposes a serious flaw in the methodology of much historiography on mortgages and of early-modern equity more generally. The article also shows how a leading case can obtain its position when it does not stand for its purported proposition. And it provides a nearly unique window into the nature of the Chancery court record and development of equity thanks to a serendipitous documentary survival.
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