Charles Bankhead had agreed to subject and charge the said policy in manner thereinafter mentioned, and also to execute such assignment of the reversionary estates and interest of him the said Charles Bankhead in the premises comprised in the said therein before in part recited indenture of settlement as is thereinafter contained; it is witnessed, that in pursuance of the said agreement, and in consideration of the premises, and for the nominal consideration therein mentioned, the said Charles Bankhead did subject and charge the said policy of assurance with the payment to the said John Chatfield, his executors, administrators, or assigns, of the said sum of 47037. 12s. 10d., including the said sums of 8457. and interest, and 30007. and interest, so secured by the said indenture of the 1st February, 1812, and deed poll, and such further sums of money as should or might thereafter be advanced or paid by the said John Chatfield, his *executors, administrators, or assigns, to or on account of the said Charles Bankhead, or which should or might at any time thereafter become due [*128 or owing from the said Charles Bankhead to the said John Chatfield on any account whatsoever, with interest; subject nevertheless to a proviso for making void the said indenture, and every article, clause, matter, and thing therein contained, on payment by the said Charles Bankhead, his heirs, executors, or administrators, unto the said John Chatfield, his executors, administrators, or assigns, of the sum of 37807. on the 1st January then next, with interest at 5 per cent. from the 1st day of January then last, and also on payment of 9237. 12s. 10d., and of all such further sums as the said John Chatfield should pay for keeping on foot the said policy, or otherwise for the use or benefit or on account of the said Charles Bankhead, with interest: and the indenture also witnessed that, in further pursuance of the said agreement, the said Charles Bankhead did grant and assign to the said John Chatfield, his executors, administrators, and assigns, all those the reversionary estates or interests to which by virtue of the indenture of settlement therein recited he the said Charles Bankhead might eventually be entitled in the premises therein comprised, to hold the same unto the said John Chatfield, his executors, administrators, and assigns absolutely, subject nevertheless to the proviso or condition for redemption therein before contained.

The said John Chatfield died subsequently to the date of the deed lastly above recited, having previously made his will, appointing the vendors of the policy in question, executors; and probate thereof was duly granted to such vendors. The said Charles Bankhead, since the execution of the indenture of the 3d June, 1822, executed mortgages of *or other encumbrances upon the policy in question to other persons.

[*129 The plaintiff required that the title of such subsequent encumbrancers should be shown, and that they and Dr. Bankhead should join in the assignment to the plaintiff. The solicitors for the vendors declined to produce such title, or to procure the concurrence of the encumbrancers and Dr. Bankhead in the assign

ment.

This action was thereupon brought by the plaintiff against the defendant to recover the amount of the deposit on the sale, being 3227., and interest at 5 per cent. from the 15th October, 1828, the day on which it was paid.

The question for the opinion of the Court was, Whether, under the circumstances stated in the case, a good title had been made to the policy sold to the plaintiff? If the Court should be of opinion that a good title had not been made, the verdict for the plaintiff was to stand; but its amount was to be reduced to such sum as the Court should think proper. And if the Court should be of opinion that a good title had been made, a nonsuit was to be entered.

Wilde, Serjt., for the plaintiff. The policy has not been sold under the power, and therefore the condition of sale has not been observed. When the mortgagor and mortgagee executed the third deed, and entered into a new contract and debt, without mention of the power in the second deed, the power was thereby extinguished. The third deed annulled the previous contract, and the time for sale under the power was past. Where a mortgagee sells without a power, he sells only the mortgage debt, with his interest in the policy, but not the policy

itself. Such a sale leaves the mortgagor a right to redeem as against the purchaser ; and if the life in the policy drops, the purchaser becomes a trustee *for the mortgagor or his representatives for all beyond the sum due. As

*130] the purchaser had no means of knowing whether anything had been paid under the second deed, he might be holding the policy, not absolutely, but merely as a security for what remained due upon the whole of the transactions between the mortgagor and mortgagee; so that the power being extinct, no absolute title to the policy could be conveyed without the concurrence of the mortgagor. Courts of equity lean against powers of sale. A power of sale for personalty is as a power of foreclosure for realty, and a purchaser cannot be safe without it.

Russell, Serjt., contra. First, the power of sale is not extinguished or affected by the third deed. Secondly, the vendors can sell and make a good title without that power.

The deed of 1822 refers to and recognises the deeds of 1812 and 1813 as existing securities; and it never could have been the intention of the parties, that the mortgagee should lose a portion of his security upon making an additional advance. The power was merely suspended for a short time in 1822, between the date of the deed of that year, and the day of forfeiture named in it.

No case or principle has been referred to under which a power can be said to be extinguished or destroyed upon a party's giving a further security.

The giving another security does not operate as an extinguishment of a former security, even by being pursued to judgment, unless it produce the fruits of a judgment. Thus it was held, that an action lay on a covenant for non-payment of money, notwithstanding a note had been given by the defendant to the plaintiff after the day of payment, "in payment and satisfaction of the debt," and judgment had been recovered on such *note, it not appearing that it was *131] accepted, as well as given in satisfaction, or that it had actually produced satisfaction: Drake v. Mitchell, 3 East, 251. So, a bond given in lieu of a covenant will not discharge the covenant. As in Kaye v. Waghorn, 1 Taunt. 428: which was an action brought by the plaintiff against the defendant (who had sold to plaintiff some freehold premises) on a covenant that defendant and his wife should levy a fine. Plea, that after executing the conveyance, and before request to levy a fine, it was agreed between the parties, that defendant should give his bond conditioned for indemnifying the plaintiff against any claim of dower of defendant's wife, and that plaintiff should accept the same in lieu and satisfaction of the said covenant, and in respect of the supposed breach thereof: averment, that he did execute the bond accordingly, and that the plaintiff accepted the same in lieu and satisfaction, and in discharge of the covenant. Demurrer; amongst other causes, that the bond was an instrument of the same nature as that on which the action was brought, and did not give the plaintiff a better or more summary remedy for any damage he might sustain by reason of the breach of covenant; and that the bond was not a defeasance of the covenant, nor an indemnity against all damages which the plaintiff might sustain by reason of the breach of covenant; and plaintiff had judgment.

Here, the remedy by sale would be taken away, and no better remedy would be given, if the covenant in the deed of 1813 be held to be extinguished.

It is a mistake to suppose that the conversion of interest into principal made a new debt: the conversion of interest into principal is in the nature only of a further advance. (a)

*132] *The power of sale was only suspended by the deed of 1822. In Cork v. Saunders, 1 B. & A. 46, where an insolvent by agreement (dated March, 1816) assigned his property, the creditors consenting that the business. should be carried on for their benefit till the next Michaelmas, and then that the property should be sold and divided amongst them, shortly after that Michael

(a) See Coote on Mortgages, 438, 439.

mas, the creditors agreed that the business should be carried on for another year, viz. till Michaelmas 1817, upon the same terms and conditions as in the original agreement; it was not suggested that this arrangement, by which the sale and division of the property were suspended, had the effect of defeating the power of sale and division, but it was held even to bind a creditor who had signed the first agreement, but had not in any way concurred in the second.

If this were a sale under the power, the concurrence of the mortgagor cannot be required: Clay v. Sharpe, Coote on Mortgages, 132. The condition is express that the assignment shall be from the vendors only; viz. the executors of the mortgagee.

[*133

Secondly, the vendors can sell and make a good title without the power. Even in equity, where the property mortgaged is reversionary, the Court does not decree a foreclosure, but a sale and satisfaction of the mortgagee's demand out of the produce: How v. Vigurs, 1 Ch. Rep. 33. So on the mortgage of an advowson, the mortgagee of the advowson may pray a sale: Mackenzie v. Robinson, 3 Atk. 559. So if a mortgagor die, and his personal estate prove deficient to discharge the mortgage, the mortgagee may, on filing a bill to enforce payment of the money due, pray a sale of the mortgaged estate in the first instance: Daniel v. Skipwith, 2 Br. Ch. Ca. 155. Powell on Mortgages, 1094. And where there is a mortgage of personalty, a day being fixed for the repayment of money lent thereupon, the pledgee or mortgagee has in law or in equity, as the case may be, a right to sell, and to satisfy himself out of the proceeds. Thus, upon a mortgage of stock, when the day appointed for payment is passed, the mortgagee may at once proceed to sell the stock, and repay himself, principal and interest, without any authority from the mortgagor, and without filing any bill for foreclosure: Tucker v. Wilson, 1 P. Wms. 261; Lockwood and Others v. Ewer, 2 Atk. 303. And from Lockwood v. Ewer it seems, that a bill for a foreclosure in such a case would be dismissed. Kemp v. Westbrook, 1 Ves. 278, is to the same effect; viz. that a pawnee of stock is not bound to bring a bill of foreclosure of the equity of redemption of such stock, but may sell it.

And in general, though where a party has a simple lien on goods he cannot sell and dispose of them, yet, if he has a special property in those goods in trust for another, subject to a claim of his own, in such case he may sell in order to repay himself. Per Holroyd, J., in Cazenove v. Prevost, 5 B. & A. 78.

The circumstance that the conditions of sale state a power of sale, cannot be a material if a good title can be made by other means.

The claim for interest is out of question, it never having been allowed on the recovery of deposit money: Calton v. Bragg, 15 East, 223.

upon

TINDAL, C. J. The verdict ought to stand for the principal sum sought to be recovered. As to interest, the case is not one in which it has ever been allowed. With regard to the principal, the rule is, that where [*134 a sale there is such doubt upon the vendor's title as to render it probable the purchaser's right may become a matter of investigation, the Court will not compel him to complete the purchase. Here, according to the conditions of sale, the policy was to be sold under a power; the vendors, therefore, should have shown an unquestionable power, for there are no means of calculating the compensation to be allowed in case of any mistake. Supposing the power to have been only suspended, there may be a candid doubt how far that suspension may be considered to operate in a court of equity, and if there be a reasonable degree of doubt, this Court will not expect the purchaser to proceed.

PARK, J. I am of the same opinion. We ought not to drive parties into courts of equity. As to the claim for interest, ever since the case of Calton v. Bragg, it has been holden that interest cannot be recovered upon a mere deposit. In Farquhar v. Farley, 7 Taunt. 592, 1 B. Moore, 323, it was holden, indeed, that the purchaser might allege and recover against the vendors special damage for the loss of interest on a deposit repaid for insufficiency of title in the vendor;

but in Lee v. Munn, 1 B. Moore, 481, 8 Taunt. 45, it was decided, that at all events an auctioneer is not liable to pay interest on a deposit.

BUR ROUGH, J. Unless it be proved that the auctioneer has made interest of the money, no interest can be demanded. As to the principal question, if there be reasonable doubt as to a title, we cannot compel a party to take it. Here, there is not only doubt, but, in my opinion, the power is gone by, not being mentioned in the third deed. GASELEE, J., concurred in giving

*135]

Judgment for the plaintiff.

HETHRINGTON v. GRAHAM. July 6.

Adultery is a bar to dower, although committed after the husband and wife have separated by mutual consent.

THE demandant, in this case, counted upon a writ of dower unde nihil habet, to which the tenant pleaded in bar, that the demandant, in the lifetime of her late husband, and during her coverture with him, voluntarily, and of her own accord, left her husband, and from thence until the time of his death voluntarily and of her own accord lived away from him, and during her coverture with her said husband, continually, until the death of one William Coulson, of her own accord, and without the license or consent, and against the will of her husband, lived away from her said husband in adultery with the said William Coulson. And the plea further alleged, that the husband was not at any time after the demandant left his house, or after she lived in adultery with the said William Coulson, voluntarily or in any manner reconciled to her. To this plea the demandant replied, that although true it was that she voluntarily and of her own accord left her husband, yet that she left him with his consent for that purpose granted, and separated and parted from her husband, and that such separation continued with their mutual consent until the husband's death, and that if any act of adultery took place, the same took place after such her separation and parting from her husband, and during the period of such separation by their

*136] mutual consent. The tenant in his rejoinder merely re-asserted the

fact, that the demandant of her own accord, and without the license or consent of her husband, lived in adultery with the said W. Coulson. To which rejoinder there was a general demurrer.

Wille, Serjt., for the plaintiff. The plea is ill: the adultery, under the circumstances stated in it, being no bar of dower. Adultery being an offence cognisable by the ecclesiastical court only, is no bar of dower at common law : 2 Inst. 435. But by 13 Ed. 1, c. 34, it is enacted, that if a wife willingly leave her husband, and go away and continue with her advowterer, she shall be barred for ever of action to demand her dower that she ought to have of her husband's lands, if she be convict thereupon. It is not easy to discover the principle of this enactment; for it has been held, that if the husband receive his wife again, or if he grant her with all her goods, she does not lose her dower: 2 Inst. 435 The statute, therefore, creating a forfeiture, must be construed strictly; Kent v. Whitby, 4 Bro. P. C. 362; and can only be enforced where all the terms of the enactment are complied with. Adultery of itself will not occasion a forfeiture. The wife must go away with her adulterer willingly; must continue with him, and be thereupon convict.

The present plea does not state that she eloped with her adulterer, or that she was convicted thereupon. All the precedents aver at least the elopement with the adulterer: Haworth v. Herbert, 2 Dyer, 106 b; Rastal, 230, Lib. Intrat. fo. 20,9 Vin. Abr. Dower. No plea can be found resembling the present. Jones, Serjt., contrà. The principle of the statute is the protection of public morals, and the punishment of the offence of the wife; and the concurrence of all the modes of committing the offence specified in the act is

*137]

not essential to a forfeiture. Lord Coke says, 2 Inst. 434: "Albeit the words of this breach be in the conjunctive, yet if the woman be taken away not sponte, but against her will, and after consent, she shall lose her dower: for the cause of the bar of her dower is not the manner of her going away, but the remaining with the adulterer in adultery without reconciliation, that is the bar of the dower" and in Paynell's case, Ibid, where the plea stated that the wife left her husband, and lived as an adulteress with Sir W. Paynell, the bar was held sufficient, although there was no allegation that she eloped with Sir W. Paynell. So, if she elope with the adulterer, she loses her dower although she do not remain with him, or remain by constraint: Ibid. And in Chambers v. Caulfield, 6 East, 244, it was held, that a husband might maintain an action for criminal conversation with his wife, although he was living separately from her under a deed of separation. In Coot v. Berty, 12 Mod. 232, and in Govier v. Hancock, 6 T. R. 603, it was held that a husband was not bound to receive his wife after she had committed adultery, although he had been the aggressor, and had turned her out of doors. "If she be thereupon convicted," means only if the fact be proved. None of the entries allege conviction in form.

Wilde in reply. If the single act of adultery is to occasion forfeiture, the cases in which it has been holden that the wife retains her dower notwithstanding adultery, must be overruled; and the principle of public morals is hardly consistent with the case of the husband's granting the wife with her goods, or his receiving her again after an act of adultery; in neither of which cases

does she forfeit her dower: it may, therefore, be contended, that elope- [*138

ment with the adulterer is essential to the forfeiture according to the statute. Cur. adv. vult.

TINDAL, C. J. The question raised upon the pleadings for the judgment of the Court is this: Whether, under the statute 13 Ed. 1, c. 34, commonly called the statute of Westminster the 2d, the committing an act of adultery, and continuing with the adulterer, is any bar to the wife's right to dower, where she has previously left her husband with his consent, and is living apart from him with such consent at the time of the adultery; or, whether it is necessary, in order to satisfy the words of the statute, that the original leaving of her husband should be a leaving with the adulterer by his means or persuasion.

That the adultery of the wife was no bar of the wife's dower at common law, is expressly laid down by Lord Coke in his reading on this statute in 2 Inst. p. 435. Indeed, it could not have been otherwise, as adultery is an offence of ecclesiastical jurisdiction only, and of which the courts of common law took no cognisance. As well, however, for the purpose of preventing that offence, as more probably with the view of protecting the heir against the danger of introducing a supposititious offspring into the family, it is enacted by the thirty-fourth chapter of the statute, "that if a wife willingly leave her husband, and go away and continue with her advowterer, she shall be barred for ever of an action to demand her dower that she ought to have of her husband's lands, if she be convict thereupon," except in an event which has not happened in this case, and to which it is therefore unnecessary to advert. It is somewhat singular that throughout the whole of this long statute, consisting of fifty chapters, this is the only one in the old law French, *the whole of the others being in Latin; and even this chapter changes from the law French to Latin, just [*139 at the place where this subject begins.

The chapter, however, after making a distinction between the carrying away women without force and with force, and enacting a punishment for those offences, provides for the case now in question, viz., that of the woman leaving her husband willingly, and continuing with her adulterer, in the words above cited.

Now it is contended on the part of the demandant, that each part of the description of the offence contained in the act must be taken to be cumulative; so that the dower is not barred unless the wife has left her husband willingly with the adulterer; has gone away with him, and has also continued with him. Whilst, on the part of the tenant, it is insisted, that it is sufficient to bring the case within the