der the direction of Mr. Baron Thompson, who thought the presumption of a surrender of the term could not be supported; and the Court of King's Bench afterwards declared their concurrence in his opinion. Lord Ellenborough said, [*]" There is no purpose of justice to be answered by presuming a surrender in this case; nor is it for the interest of the owner of the inheritance to have such a presumption made. It may in fact have been his intention to keep alive the term, and to have it assigned to a frustee to attend the inheritance."

It will not fail to be remarked in the case just cited, that although the term, under the attainment of the purpose for which it was created, viz. the re-payment of the pecuniary loan, had not been transferred to a trustee to attend the inheritance, and although it had remained unnoticed from 1751 until the assignment in 1802, a period of above fifty years, yet those circumstances were not considered sufficient to authorize the presumption of a surrender. Now it is evident, that had there been an assignment originally taken expressly to wait on the inheritance, a strong additional reason would have been furnished in support of the opinion of the court; and accordingly, in an earlier case, where the additional fact presented itself, the jury, in a special verdict, found the term to be still existing, although it had not been dealt with after the assignment for nearly seventy years, and notwithstanding the prejudice which, in the judgment of the court, might thence accrue to the lessor of the plaintiff (who was the rightful owner of the property) in his title to recover.

In the case alluded to(a), a term of 500 years, [*]created in 1690, was assigned, in 1713, to a trustee in trust to attend the inheritance. The property to which it related not undergoing any change of ownership except by testamentary disposition, the term remained without notice until the year 1780, when in a mortgage (expressed to be of the fee) from a then tenant for life of the estate, a declaration was inserted, that the person in whom the term was vested, should stand possessed thereof in trust for the mortgagee. In 1782, the tenant for life assumed to sell the inheritance in fee simple to the ancestor of the defendant, and the mortgagee joined in the conveyance. After the death of the tenant for life, and eleven years after the sale in 1782, an ejectment was brought by the remainder-man: in answer to which the defendant set up the term created in 1690, an assignment whereof he had procured since the action was commenced. On the special verdict which enumerated these facts, the Court of King's Bench reversed a judgment given in favour of the lessor of the plaintiff by the court below.

Two decisions(b), however, have been lately made, which confirm all Lord Eldon's apprehensions of the dangerous consequence likely to arise from the rule

(a) Goodtitle d. Jones v. Jones, 7 T. R. 43. See also Doe v. Calvert, 5 Tamet, 169.

(b) Doe d. Burdett v. Wrighte, 2 Barn. and Ald. 710; Doe d. Putland v. Hilder, ib., 782. To these cases may perhaps be added Bartlett v. Downes, 3 Barn. and

Cress. 616; though it seems probable, that the presumed surrender in this latter case was founded on the circumstance of the term not appearing to have been assigned to attend the inheritance, until very many years after it was satisfied.

propounded in Lade v. Holford. The doctrine [*]under which an ancient attendant term was formerly regarded as the best security for the unmolested enjoyment of a new purchase, has been shaken to the very foundation. In the cases alluded to, the inclination of the court, instead of opposing the presumption of a surrender, was unequivocally given in favour of such presumption, although the consequence was to avoid terms, which had been either actually assigned, or expressly directed to be held in trust, for the very purpose of keeping them on foot. And so far from its being thought unwarrantable to direct a jury to presume a term surrendered when merely satisfied, and no steps taken to obtain a surrender, decided approbation was bestowed on a judicial direction in favour of such presumption, notwithstanding the manifest intention of the parties, and positive efforts made by them, to keep the terms alive. Such appears to be the effect of the cases spoken of. The facts on which the determinations in question were founded, and the arguments used by the court in supporting those determinations, were as follow:

In Doe v. Wrighte, two several terms of 1000 years, created in 1717 to secure a mortgage debt, were resigned in 1735, on the debt being paid off, to a trustee, in trust to secure an annuity to M. and N., "and afterwards to attend the inheritance." N., the surviving annuitant, died in 1741; and the estate remained undisturbed in the hands of the successive owners of it (that is, of Mrs. Oglethorpe, who died in 1787, and of Sharpe, a devisee for life under her will) from that time until the year 1813.

[*]No notice in the mean time was taken of the terms, except that in 1801, on a sale of part of the property under authority of the land tax redemption acts, the devisee for life, in whose possession the deeds creating and assigning the terms then were, covenanted for the production of those deeds to the purchaser. Sharpe dying in 1813, a person who claimed to be heir to the testatrix, entered and remained in possession for about six years, when the real heir (the lessor of the plaintiff) appearing, brought his ejectment. For the defendant, it was insisted, that the legal estate was outstanding in the representatives of the trustee of the deed of 1735, and that the plaintiff therefore could not recover; but under the direction of Mr. Justice Park,-who thought that the circumstance of that instrument not being found in the hands of the trustee, but in those of the beneficial owners, whose occupation had so long continued unfettered by any such clog,' was sufficient to warrant a presumption of the surrender of the terms(a),-the jury found a verdict for the plaintiff. A motion was afterwards made for a new trial, on the ground of a mis-direction by the Judge; but a rule for that purpose was refused after argument. Mr. Justice Bayley, in delivering his opinion, which

(a) We may here, once for all, notice the inconclusiveness of the reasons offered by the learned Judge, in support of the presumed surrender. That inconclusiveness appears from the following considerations; that the deed, whereby a term is assigned to a trustee in order to attend the inheritance, is

always retained in the possession of the owner of the fee, and is in no instance delivered over to the custody of the trustee; and that far from such term being considered a clog to an estate, it is usually esteemed as an advantage of the highest importance.

agreed with that of the rest of the court, said: "The question is, whether the learned Judge was wrong in directing the [*]jury to presume the surrender of the outstanding terms. I think, that, in this case, even if he had used the strongest terms of recommendation and advice, he would have been right. The facts are these the terms were created by indentures dated October 1st, 1717. In 1735, they were assigned for the purpose, first, of securing the payment of an annuity to the father and mother of Mrs. Oglethorpe, and after their death to attend the inheritance. Mrs. Oglethorpe's mother, the survivor, died in 1741, and she herself made her will in 1786. Now I cannot see any sufficient reason for continuing the terms during all that period; for from the time of the death of the annuitants the object ceased; and in point of fact, from 1741 till the present time, with one exception only, nothing is even heard of them. The principle upon which the courts proceed in these cases is, that they will presume a surrender, where it is for the interest of the owner of the inheritance that the terms should be considered as surrendered; and where an estate has continued for so long a period in the same hands, there seems no beneficial purpose which can be answered by the continuance of the terms. If, for instance, in 1783, these terms had been considered as subsisting, it would have been necessary for Mrs. Oglethorpe to have made inquiry, and to have found out the personal representative of the trustee, after a lapse of fifty-one years, and perhaps at the expense of a limited administration. I, therefore, can see no benefit, but, on the contrary, a great inconvenience to the owner of the inheritance, from keeping the terms alive. It is true, that in 1802 Sharpe covenants