is, that an omission to advert particularly to an outstanding term in the case under consideration, is by no means sufficient evidence of its previous surrender, but is, on the contrary, quite compatible with the fact of the term being still subsisting.

With the tenour of these observations the actual practice remarkably coincides. The title to property settled on marriage is frequently not at all investigated; never with excessive strictness. So far from any apprehension being entertained of a future attempt by the husband to defeat the uses of the settlement, the title deeds and settlement itself are commonly suffered to remain in his hands; which circumstance, though agreeing, it is true, with his right as tenant for life under the rules of law, shows at the same time that the parties think it not necessary, for the sake of greater security, to contravene the legal regulation. Proceeding upon the same principle, it is most unusual on making a marriage settlement, to direct a term which has before been assigned for the purpose of attending the inheritance, to follow the newly created uses. Such practice had even made considerable progress in the time of Lord Hardwicke(a), and of late years has [*]almost universally

(a) It is remarkable, that in Willoughby v. Willoughby, 1 T. R. 763,-which was cited in order to show that the custom of omit ting all notice of satisfied terms, attendant on the inheritance by express declaration, was not general at the making of marriage settlements in 1756, the assignment of

a satisfied term in that very case, made shortly after a settlement on marriage, was expressed to be in trust merely to attend the inheritance. And it should be ever borne in mind, that the observation of Lord Hardwicke, which was quoted by Abbott, C. J., extends as well to cases where an

obtained. Nor, however erroneous the practice may be, as it is certainly so accounted by the Court of King's Bench, ought that consideration to affect its validity. The generality of the usage (if nothing more) should secure it from impeachment; and deference should be paid to it, both on account of the innumerable cases in which it has been followed, and of the titles which, if the practice be invalidated, must eventually be prejudiced (a).

With respect to the implied want of reasonable precaution on the part of a mortgagee, who does not require an assignment or declaration of trust of an attendant term for his benefit, the amount of that want of precaution, it should seem, must be measured by the danger the mortgagee supposes himself to incur. Now clearly his determination is liable to be influenced by circumstances: thus, if the loan be needed only to meet a temporary occasion, and there is reason to expect payment speedily, it is probable that he would [*]be satisfied with a security less perfect and com

absolute change of owners takes place, as where a different modification only of the uses of an estate is made by settlement.

(a) On the deference due to the practice of conveyancers, a point which the courts both of law and equity have constantly acknowledged, Lord Eldon, in a very recent case, where an exchange with the tenant for life of an estate under a power was attempted to be set aside, said, "Whatever other people may say upon the subject, I think that the practice of con

veyancers has settled a great deal of law, and if we have got no further than this, that the antecedent practice has been doubted, I should be disposed to abide by that antecedent practice. I put this case therefore on the practice of conveyancers; and after the abuse which I have heard at the bar of the House of Lords and elsewhere upon the subject, I am not sorry to have this opportunity of stating my opinion, that great weight should be given to that practice." See 1 Turn. 86.

plete, than if the borrower's necessity be likely to continue long. But whether a mortgage be made to secure a loan of a temporary or permanent description, there is one ground common to both cases, on which the mortgagee may readily be imagined to dispense with an assignment or particular declaration of trust for his protection. It was said by Lord Hardwicke, in Willoughby v. Willoughby (a), above sixty years ago, (which passage, it may be recollected, was cited by Abbott, C. J., in his judicial argument,) that "where an old term has been assigned generally in trust to attend the inheritance, and the parties approve of the old trustees, they may safely rely upon it as a protection against encumbrances, especially in cases of a purchase or mortgage, where the title deeds always are or ought to be taken in; for if a purchaser or mortgagee has the creation and assignment of the term in his own hands, no use can be made of it against him." With this doctrine the frequent practice has corresponded (b). In innumerable instances mortgagees, and even purchasers, trusting to the validity of this rule, have omitted all notice of satisfied attendant terms vested in trustees; but, taking possession of the deeds creating and assigning such terms, have esteemed themselves secure of the same advantage and protection as an actual assignment would have afforded. Now it deserves remark, that in the principal case the assignment of 1779 to attend the inheritance had, as it in fact appeared, [*]been delivered to the mortgagee, and that the deed creating it was not delivered, simply because that

(a) 1 T. Rep. 772. See also per Lord Eldon, 10 Ves. 259.

(b) See Mr. Butler's note to Co. Litt. 290 b, in section XV. towards the end.

deed belonged to a third person, the purchaser of the larger portion of the estate comprised in the term: and yet, notwithstanding these circumstances, and in contradiction to the passage above quoted from Willoughby v. Willoughby, as also to an assertion in the judicial argument in question, admitting that if the deeds relating to the term had been delivered to the trustees of Mr. Newman's marriage settlement, the case, as respected a presumptive surrender, would have stood on very different ground; the omission to assign or mention the term at the time of the mortgage being made, was relied on as leading to the conclusion that the term did not then exist.

There is, however, a higher ground for disputing the proposition, that neglect to require an assignment or declaration of trust of an attendant term, on the occasion of a marriage settlement or a mortgage, raises a presumption of its previous surrender. The ground alluded to is the assumption or pre-supposition, on which those numerous decisions have proceeded, whereby a purchaser, whether of the absolute or of a partial interest, has, by obtaining an old satisfied term, been allowed to protect himself against all charges and encumbrances created between the grant of the term and the assignment. The indisputable inference resulting from these cases is, that the neglect of former purchasers to secure to themselves the protection of a satisfied term affords no presumption of a surrender; the very foundation of such adjudications being that [*]the term legally and effectively exists. The doctrine of equity on this subject has been before stated, namely, that a bona fide purchaser or mortgagee without notice, who procures the assignment of a term waiting

on the inheritance to a trustee for his benefit, may thereby protect himself against all prior purchasers, and mortgagees and other encumbrancers (a). It is evident that equity takes it for granted, that the fact of such purchases and mortgages having been made, without a contemporaneous assignment of the term, supplies no argument against its existence. And courts of law, until in the present cases, ever acted on the same principle. Goodtitle v. Morgan, (b) is a striking instance. There a term created by way of mortgage was, upon the mortgage money being paid off, assigned to a trustee to attend the inheritance. Mortgages in fee of the estate were afterwards successively made to two distinct persons; but the term was not noticed on either of those occasions. A third mortgagee of the inheritance procured the term to be assigned to a trustee for his use, and by means of it ejected the prior mortgagees, who had taken posses

sion of the estate.

Another reason, which was adverted to as showing that the term was not in being at the time of Newman's [*]marriage settlement, or of the subsequent mortgage to his mother, was an alleged want of integrity on his part in not directing it, if existing, to be assigned in trust to attend the uses of the settle

(a) See per Lord Commissioner Turner v. Richmond, Ib. 81; Holt Rawlinson, in Hitchcock v. Sedg- v. Mill, Ib. 279; Bovey v. Skipwick, 2 Vern. 159; per Lord Tal- with, 1 Cha. Ca. 201; 1 Eq. Abr. bot in Collet v. De Gols, Forr. 69; 323, pl. 2, S. C.; which, though and per Lord Hardwicke in Wil- cases where the previous encumloughby v. Willoughby, 1 T. R. brance was a satisfied statute or p. 767 and 770. See also Ed- judgment, powerfully evince the munds v. Povey, 1 Vern. 187; force of the general principle. Stanton v. Sadler, 2 Vern. 30; (b) 1 Term Rep. 755.