chaser did not consider those instruments to be either useless or irrelevant to his title.

The reasons assigned for the determination of the court in Doe v. Hilder appear to arrange themselves under the following heads: First, that the surrender of the term may be presumed, though against the interest of the owner of the inheritance: Secondly, that where a term, which, if in existence, ought reasonably to be assigned or distinctly noticed on particular occasions, is omitted to be assigned or noticed when such occasions happen, a surrender of it may justly be presumed from the fact of that omission: And, thirdly, that the making of marriage settlements and mortgages are such occasions. From these premises is deduced the conclusion, that an assignment subsequent to the execution of a settlement or mortgage, (in the case in question, about five years after the settlement, and three years after the mortgage), cannot, unless in actual contemplation at the time of the settlement or mortgage, be in any view considered efficacious.(1)

The position, that a surrender may be presumed against the interest of the owner of the inheritance when there are evident grounds for making that presumption, cannot be denied. The reason, however, given in the present case in proof of the position is singularly unhappy. It is drawn from the rule, that

(1) In Townsend v. Champernowne, (1 Jerv. & Young, 538.) the court declared that on the authority of Doe v. Hilder, it would, after the expiration of seventy years without payment of interest presume the surrender of a term, neither the deed creating, nor the assignment of it being produced, and which was only recited in a deed of 1758.

a mortgagor shall not be allowed to set up a satisfied term in order to defeat his mortgagee proceeding in ejectment. [*]A general principle is made to rest upon a particular instance, and the rule in that instance constructed solely to meet the artifices of fraud.

The next point in the judicial argument is, that "where acts are done or omitted by the owner of the inheritance and persons dealing with him, as to the land, which ought not reasonably to be done or omitted, if the term existed in the hands of a trustee, and if there do not appear to be any thing that should prevent a surrender from having been made; in such cases the things done or omitted may most reasonably be accounted for by supposing a surrender of the term, and therefore a surrender may be presumed." This rule, if intended to be of universal application, is, to say the least, new, and of questionable expediency. For although there may be circumstances, under which it may fairly, and with much probability of truth, be allowed to govern, as where a series of mortgages or transfers of mortgages have been made, or several successive changes affected in the absolute ownership of an estate by sale, and no notice in any of such transactions has been taken of the attendant term; yet to hold that the omitting to make an assignment or declaration of trust, on the occasion of a single marriage settlement, or of a single mortgage, affords sufficient ground for the same inference, is carrying the principle to an extent beyond all former precedent, and is calculated in innumerable instances to defeat the intention of the parties.

For allowing, for the sake of argument, the minor proposition, that an assignment or some distinct notice [*]of an attendant term is reasonably called for on the making of a marriage settlement or a mortgage, yet the major proposition, that if in such case an assignment or distinct notice of a term is not taken there must have been a previous surrender of it, is by no means a fair and legitimate conclusion. It goes to establish a principle, which bears no proportion to the reasons from which it professes to be derived. If, indeed, on any given occasion, it could be shown, that to omit taking an assignment or declaration of trust of an attendant term would be a neglect in the highest degree rash and indiscreet, there, perhaps, the omission might with some plausibility be alleged as evidence of the previous destruction of the term. But it is a very different matter to deduce the same conclusion from the omitting to take an assignment or declaration of trust, where such assignment or declaration is merely a precautionary step which it would be reasonable to take, but which is not essential to the validity of the title. Prudence may suggest many acts as proper to be done, which it would not be directly imprudent to omit. A person who lends a sum of money to his friend may do wisely in accepting the offer of a real security, but it does not follow that he acts unwisely, if under the circumstances he declines to take advantage of that offer. So it may be politic in a purchaser to require a fine to bar a title of dower, yet not perhaps impolitic to rely for protection on the assignment of an apparently existing term, which in the result may prove equally effective. Again, although a purchaser who procures the assignment of a satisfied term would act with discretion in searching

for encumbrances by the vendor, he may not, on the [*]other hand, be chargeable with indiscretion though he foregoes the search, and confides in the term as an adequate protection. It is seen, then, that a wide distinction exists between what is reasonable to be done, and what it is unreasonable to omit; and that that which may be justly predicated of the omission in the latter case, may be very unjust when applied to the former. So that to infer the previous surrender of a term from the omission in question, merely because the obtaining of an assignment or declaration of trust would be reasonable only, and because such inference would properly arise if in a particular case it could be shown that the neglect was unreasonable, is neither logical nor just.

But the question next presents itself,—Are marriagesettlements and mortgages such transactions, as do in reality require an attendant term to be assigned, or a declaration of trust expressly to be made in favour of the parties entitled. The affirmative of this proposition was the third point assumed. In reply, it may be observed, that although to require an assignment or declaration of trust in the cases proposed would certainly not be unreasonable, especially in the latter case, where the only object is to secure the repayment of a loan; yet constituted as the law with regard to attendant terms has hitherto been understood to be, it seems equally evident, that a dispensation with the above means of auxiliary assurance does not betray a want either of prudence or of due caution. Unquestionably, the interests of claimants under settlements and of mortgagees ought to be carefully and properly secured; but of the nature and degree of the security

requisite, those persons themselves must surely be [*]deemed competent to judge and want of discretion on their part, when the principal means of assurance have been given, ought not to be hastily inferred, because a casual injury is sustained in consequence of their not insisting on every possible instrument of collateral protection.

To instance first the occasion of making a settlement in contemplation of marriage: This, it is manifest, is of all others an occasion on which scrupulous care to obtain a title perfectly secure and unimpeachable can least be looked for. That strict and anxious precaution, justly observed by persons whose interests are adverse, is almost invariably, and not without reason, remitted here; the parties naturally repose confidence in each other, and a suspicion that the husband would afterwards attempt to defeat the settlement is most unlikely to be entertained. The only point of which there are fair grounds to expect that the person taking an interest under the settlement would require to be satisfied, is that the settlor possesses a sufficiently good title for the general purposes of enjoyment. If, therefore, a term attendant on the inheritance reside in the hands of a trustee, as it is notorious that he will become a trustee to protect the new uses limited out of the inheritance, and that after notice of those uses he would commit a breach of trust by assigning to a stranger, there is strong reason to suppose that a transfer of the term to a new trustee, or an express declaration in writing that the trust of the term should follow the new uses, would not be urged as necessary: the rules of equity, by supplying the place, preclude the necessity of any such precautionary [*]measure. The conclusion