504 JOURNAL OF THE PLYMOUTH INSTITUTION. 
kind of contract still survives to be a disgrace to the English law, 
and is called a mortgage. Nearly every mortgage deed contains 
an express stipulation that if the money is not repaid on a 
specified day the estate shall belong absolutely to the mortgagee. 
It is needless to say that this stipulation does not represent the 
real intention of the parties. It might be supposed that the 
obvious remedy against this state of things would have been for 
persons to give up the practice of executing deeds which did not 
express their real intention. This simple and efficacious remedy 
failed, however, to recommend itself to the profession, and mort- 
gages continued to be drawn in the old form, till matters became 
so bad that something had to be done, and the equity judges hit 
upon the heroic expedient of obliging the parties to act as if the 
mortgage deed had in fact been drawn up as it ought to have 
been. Thus far equitable interference was warranted, and indeed 
rendered necessary, by the childish technicalities of the law. But 
a dangerous precedent had been established. The endeavours of 
equity to promote fair dealing between man and man by over- 
riding the express provisions of written contracts have in some 
instances been attended with absurd results. For example, it has 
been decided that a stipulation in a mortgage, that on failure of 
punctual payment the rate of interest shall be increased, cannot 
be enforced, on the ground that such a stipulation is only inserted 
for the purpose of securing payment at the rate agreed upon, and 
therefore if the mortgagor pays up all arrears with interest, no 
more ought to be required of him. But there are more ways of 
killing a dog besides hanging, as conveyancers very soon found 
out, and the only result of this merciful decison has been to alter 
the form of the stipulation, the practice now being to reduce the 
rate of interest on punctual payment, instead of raising it if the 
payments are not punctual ; that is, instead of calling the rate of 
interest 4 per cent., with a stipulation that it shall be increased 
to 5 per cent, if not paid punctually, the rate of interest named 
in the first instance is 5 per cent., with a stipulation that on 
punctual payment 4 per cent, only shall be demanded. The one 
stipulation of course comes to just the same thing in the end as 
the other, but equity in its wisdom has, nevertheless, decided that 
the one stipulation can, and the other cannot, be enforced ; a 
lame and impotent conclusion indeed. This, however, is not the 
only instance in which equity permits its principles to be set aside 
