term, or a delivery of the deeds relating to it, would have undoubtedly been most important acts in favour of the mortgagee, because they would have protected the mortgagee against any subsequent use of the term to defeat her mortgage. On both these occasions, therefore, the term, if existing, could not have been wholly disregarded, without either want of integrity on the part of Richard Newman, or want of care and caution on the part of the professional men engaged in those transactions. We think it more reasonable to presume a prior surrender of the term than to presume such such deficiencies. It certainly might not unreasonably be left to a jury to consider to what cause they would attribute these omissions; and this was done at the trial. It is true that an assignment of the term was taken a few days before the trial for the alleged benefit of the legatees of the mortgagee, Mrs. Newman, on whose behalf we were informed the present cause was defended. But this tardy act cannot be of any avail, and leads not to any presumption. The assignment was made by the administrator of the person in whom the term had been vested; and the administrator would probably be ignorant of any previous surrender made by the intestate. The time for dealing with the term, on behalf of the mortgagee, was the date of the mortgage. An actual assignment of the term is more regarded than its mere quiescent existence. It will defeat the title to dower, which its existence only will not, according to the case of Maundrell v. Maundrell, 7 Ves. jun. 567, and 10 Ves. jun. 246, and the cases there cited. These observations respecting the settlement and the mortgage, receive additional force from the consideration

of their dates. They were both long subsequent to the judgment, and they are the acts of a person materially interested in protecting the land from the judgment, and excluding all questions on the subject of priority or otherwise in the case of the settlement, for the sake of his intended wife, and the issue that he might expect by her, and in the case of the mortgage, for the sake of the mortgagee, to whom he was so nearly related, and who was evidently a favoured creditor. And it cannot be denied that an actual assignment of the term would have been in many respects more operative against the judgment, than its mere existence. In the case of the mortgage, it would have put an end to all question on the statute of frauds, by making the termor specifically a trustee for the mortgagee before execution issued, according to the case of Hunt v. Coles, 1 Com. Rep. 226."

The judicial opinion of Mr. Justice Bayley in Doe v. Wrighte, and the judgment delivered in the last case by Abbott, C. J., have been presented to the reader at length, that he may clearly and fully comprehend the nature of the arguments relied on by the court in support of these respective determinations. We proceed to consider circumstantially the force of those arguments, and to point out where they do not directly afford the conclusion alleged to flow from them.

The grounds from which Mr. Justice Bayley appears to have deduced the propriety of presuming surrenders of the terms in the case of Doe v. Wrighte, were; first, that such surrenders were for the interest of the owner of the inheritance; secondly, that the

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estate having been so long in the same hands, no beneficial purpose could be answered by a continuance of the terms; but, thirdly, that instead of a benefit, a great inconvenience would be the consequence; and fourthly, that in the deed of covenant to produce the documentary evidences of title, in which were mentioned the indentures of demise and assignment, no special intimation was given that the terms then subsisted.

These particulars, it is conceived, supply but feeble grounds for the inference they are asserted to furnish. It is indeed true, that under circumstances, the private interest of the owner of the fee has prevailed, in some instances, as a reason for presuming the destruction of terms, and in others, for excluding that presumption. But it by no means follows, because such reason for the ends of substantial justice has had occasional influence, that the principle is to be acted upon universally. And whenever in previous cases this rule was resorted to, the object for which the term was originally created had been accomplished, and the term itself had since remained unnoticed. No case had ever gone so far as to admit its operation, where there had been an assignment with an express declaration to attend the inheritance. Nor was it by any means the intention in those cases to establish, that the interest of the beneficial owner, even where fraud was visible, should always determine whether or not the supposition of a surrender must obtain. And thus we find Lord Kenyon (to repeat the language used by his Lordship, before quoted) saying, "that although under the circumstances mentioned in

Lade v. Holford, the jury might presume a term to be surrendered; yet, without such [presumed] surrender, the estate in the trustee must prevail at law." The jury, his Lordship meant, should draw their own conclusion from the peculiar circumstances of each case; and the court ought not to influence their judgment.— But, secondly to deny the benefit of an existing term, because the estate has continued for many years in the same hands, is to deny in substance the possibility of there being an ancient subsisting title, mortgage, or other encumbrance affecting the fee, against which the term might afford protection; or that, in the event of a sale, the vendor could be interested in being able to give the purchaser a means so effectual for securing the future enjoyment of the property. To urge the inconvenience of keeping it on foot, at least according to the usage hitherto prevalent with respect to attendant terms, is still less to the purpose. The inconvenience apprehended by the learned judge was never before thought of; and rests on an assumption perfectly gratuitous, that when the owner of an estate, on which a satisfied term is attendant, makes his will, it behoves him, if the trustee be dead, to make inquiry for his personal representative, and supposing there is no personal representative, to be at the expense of a limited administration. But not only would all the trouble and expense to be thus incurred be perfectly useless, since a new assignment (for which purpose alone the limited administration could be required) would be unnecessary, the term already attendant on the inheritance moulding itself, as a matter of course, to the estates carved out of the inheritance by the will; but, it is not cus

tomary in any way to notice an attendant term upon making a devise of the property to which it relates; and what is usual in practice ought surely to be of weight in cases where the performance or omission of an act, from which intention or impression is to be inferred, is in fact governed by practice. And the general usage in this particular is not unreasonable. For if the term were mentioned in the will, the very instrument conferring the devisee's title would then show a legal estate to be outstanding, which in some events might prove highly prejudicial to him; and to direct the term by a separate instrument to accompany the limitations of the fee as given by the will, if it did not frustrate, might at least stand opposed to the ultimate intentions of the testator:-for example, if he should afterwards revoke his will, and die intestate; in which case the deed of direction would be worse than useless.-The fourth ground taken by the learned Judge in forming his conclusion, was the silence of the deed of covenant as to the existence of the terms. But here again the practice of conveyancers ought certainly to constitute the ground of decision: and in regard to the scheduling of title deeds to be subjoined to a covenant for their production, that practice is-to omit expressing what particular interests are conferred by such deeds, or their present efficiency, but simply, after noticing the general description of each instrument, to add the number of the parties and the parties' names. The want of specifying, therefore, in the covenant deed in question, the then existence of the attendant terms affords, it is conceived, no inference whatever against such fact. On the contrary, if probability be consulted, the circumstance of the purchaser's requiring a written agreement