"The lord of a manor may prescribe to a certain seat or pew in the church, by having time out of mind maintained and repaired the same at the proper costs of himself and his ancestors" (8). That is very much the same proposition as is laid down by Lord Hobart. And again, "The disposal of seats in the body of the church doth belong of common right to the ordinary of the diocese, so as he may place and displace at his pleasure. If a man and his ancestors, and all those whose estate he hath in a certain messuage, have used time out of mind to repair an aisle of a church, and to sit there, and none other, the ordinary may not displace him; for if so, then a prohibition lies, for that he hath it by prescription upon reasonable consideration. Likewise, if a man prescribe that he and his ancestors, and all those whose estate he hath in a certain messuage, have used to sit in a certain pew in the body of the church time out of mind, in consideration that he and those whose estate he hath have been used time out of mind to repair the said seat, if the Ordinary remove him from that seat, a prohibition lies, for in this case the Ordinary hath not any power to dispose thereof; for that is a good prescription, and by intendment there may be a good consideration for the commencement of that prescription, although the place where the seat is be the parson's freehold. But if a man prescribe to have a seat in the body of the church generally, without the said consideration of repairing the seat, the Ordinary may displace him" (9).

Then we have in Johnson the passage which I read for another purpose, where, after stating that the freehold of the church is in the incumbent, he adds: "But the incumbent's freehold does not annul the right of a peer or gentleman to any chapel or chancel built and repaired time out of mind by him and his ancestors, for a place of burial, or to hear divine service."

Then we have the doctrine laid down by Lord Chief Baron Macdonald in the case of Lousley v. Hayward, where a question arose as to a claim made by prescription to a pew in the body of the church, as appurtenant to a house out of the parish.

(8) Godolphin's Repertorium, p. 137. (9) Ibid. p. 150.

NEW SERIES, 35.-CHANC.

After observing that it appears from Selden (10) that in early times, by the Pope's licence, churches were founded or built by lords of manors or other lay founders, he continues: "How can we now say that the owners of the house or of the estate in respect of which this pew is claimed, did not build or endow the church or some part of it? (11)" There can be no proof of it; but he suggests that it is extremely probable that it was so; and he says, "without going further, it might have been so, and that is sufficient." That is to say, it is extremely possible at least that the estate which the person now claiming holds was the estate of the persons who had built or endowed the church; and that is a sufficient intendment to support the prescription as having a reasonable origin, or a sufficiently good consideration.

But

Then we have the case of Buxton v. Bateman, in Siderfin (12), which, as translated, I apprehend would run thus: "Action on the case, brought for disturbing the plaintiff in the use of a seat in the choir of the church; and after verdict," which had been in favour of the person retaining the seat, "it was moved, in arrest of judgment, that the plaintiff had not entitled himself to the seat, inasmuch as he does not shew that he repairs it as he ought, for without reparation this belongs to the Ordinary. it was said by the Court that it does not appear which it was, in the body of the church or not; for if it was not, it does not belong to the Ordinary"; and then comes this, "And an aisle of a church may be parcel of my messuage, or where I am founder "that is, founder of the churchmeaning, of course, my ancestor, or the person whose estate I have, "there it may be allotted to me instead of the donation." The original words are, lieu del donation," which I conceive to mean, that as a return for my donation of the church to God and to the Church, I have had given to me-that is, my ancestor or my predecessor in title has had given to him-this aisle of the church.

en

Then we have the case of Corven, which I only cite in corroboration of what I have already referred to on the question of pro

(10) Vol. 3, part 2, p. 1121, edit. 1725. (11) 1 You. & J. Exch. 585.

(12) Sid. p. 88.

4 Y

hibition: "It was resolved by the Court that if a lord of the manor or other person who hath a house and lands in the parish, time out of mind, hath had a seat in an aisle of the same church, so that the aisle is sole and proper to his family, and they have maintained it at their own charges, if the bishop would dispossess him, he shall have a prohibition; for it shall be intended that the party's ancestors, or those whose estate he hath, have erected and built the aisle with the assent of the parson, patron and Ordinary, to the intent to have it only to himself" (13). And, lastly, we have this, in further corroboration of it, from Degge: "The bishop has no power to dispose of the seats in any private chapel next to the church, that is not maintained and repaired at the parish charge" (14).

It is unnecessary to cite further authorities. There may be others more or less bearing on the question; but I think it is unnecessary to cite cases for the purpose of shewing that upon this question of prescription by the lords of the manor, it is sufficient that you can suggest some reasonable intendment as to origin; and, according to those authorities, if this chapel was coeval with the foundation of the church, as I think the evidence tends strongly to shew it was, even though the freehold, like that of the rest of the church, be in the rector, and not in the person claiming by prescription, still a man may well have the right by prescription to the perpetual and exclusive use of the chapel upon this intendment, either that the founder, when he built the church, or, if he was not the builder, when he endowed it, had allotted to him, or, when he erected this chapel, he reserved to himself, not perhaps the freehold, but the perpetual and exclusive right to the use and enjoyment of the building.

Therefore, it appears to me that, with regard to this admission in the answer, if the fact of the freehold being in the rector would necessarily be fatal to the defendants' case, under the circumstances, justice would require that that admission should not be held binding, so as to defeat the legal right.

(13) 12 Rep. 105.

(14) Degge's Parson's Counsellor, p. 213.

But, as I have said, whether it be binding or not, it appears to me that the right of the lord of the manor still remains untouched, and that there is established by complete evidence, not absolutely demonstrative, but which satisfies my mind, and I think will satisfy most minds, that this was the ancient chapel of this family from the foundation of the church; that they have had, so far as there has ever been any user of it at all, the exclusive user; that the parish has never had any user of it whatever, except within extremely modern times, that is, within the last twenty or twentyfive years, and that only in the manner I have mentioned; and that the right still remains in the lord of the manor, as appendant to the manor or the manor-house-it is perfectly indifferent which.

Some question has been raised as to which is the manor-house, and there is a suggestion made by some of the witnesses, that they believe this New Place, which the defendants Mr. and Mrs. Frewen say is the manor-house, was built some 200 years ago; and it is also suggested that it is not the manor-house at all. There did once exist a house called "Old Place,” and it is surmised that that was probably the manor-house. But we have, at all events, this, that New Place is the spot where, as far as we can trace, the manor courts have been held and the business of the manor conducted. It has never been for a great many years, it may be for generations, occupied by the lords of the manor, but it has been their property. It is not necessary for me to say that I conclude that it is the manor house; but I must say that, as far as the evidence goes, there is strong reason to believe that the house which existed on the site on which the New Place was built, 200 years ago, has always been the manor-house. Therefore, if it were necessary that this right should be attached to a house, there is, I think, sufficient ground for assuming that it was attached to that manor-house, and, if necessary, that manor-house would support the prescription.

The result is, I conceive, the prescription is well supported to the exclusive user of this chapel by the lord of the manor, even if the freehold be not in the lord, but in the rector.

Under these circumstances, of course, I must dismiss the bill. There are some acts which I much regret on the part of the defendant Frewen; but it does not appear to me that I can use those acts for the purpose of saying that the usual rule should not prevail, that the bill, being dismissed, must be dismissed with costs.

His Honour having subsequently stated that he did not intend to make the plaintiffs pay the costs of the Ecclesiastical Commissioners, considering that inasmuch as they had supported the plaintiffs' view of the case, they ought not to have their costs,

Mr. Lindley submitted that the Commissioners were made defendants as trustees for the plaintiff of the legal estate. If the plaintiff's had succeeded, he should have asked for costs as against the defendants Mr. and Mrs. Frewen. The Commissioners had put in no answer, nor any evidence, and had not taken any independent position. They were mere trustees, brought there against their will, and never claimed the slightest interest in the matter.

KINDERSLEY, V.C.-Then why did they not disclaim? In excepting the Ecclesiastical Commissioners, I proceed upon the footing that they are brought here as having an independent interest of their own, which they may be entitled to maintain. If they were merely trustees for the plaintiffs, I do not think they would have been here at all. But they were brought here for the purpose of enabling them to maintain such right as they could, as being the owners of the legal estate. I can do no otherwise than adopt the common rule, which is, that if a defendant supports the case of the plaintiff, and the bill is dismissed with costs, the plaintiff is not made to pay the costs of that party.

Solicitors-Messrs. Senior & Attree, for plaintiffs; Messrs. Langham & Son, for defendants Frewen and Wife; Messrs. White, Borrett & White, for Ecclesiastical Commissioners; Messrs. Young, Jones, Vallings & Roberts, for other defendants.

Contract-Illegality-Improper Pressure -Stifling a Prosecution.

W. B. discounted bills to which he had forged his father's signature. The holders of the forgeries, working on the fears of the father for the safety of his son, but without holding forth any direct threat, and without any distinct promise not to prosecute, obtained from the father equitable security for the amount of the bills:-Held, by the House of Lords, affirming the decision of Vice Chancellor Stuart, that the security was void, as having been obtained by improper pressure.

Held, also, that the arrangement was invalid, as it amounted to an agreement to stifle a prosecution.

The appellants were bankers at Wednesbury; the respondent was a coal-master and farmer of substantial means residing in the neighbourhood, and having an account at the bank of the appellants.

William Bayley, one of the respondent's sons, was a coal and coke merchant, carrying on apparently a good business, also in the neighbourhood of Wednesbury.

Prior to 1862 there had been many bill transactions between the father and the son, such bills, together with many of the son's trade bills, having been paid through the father's account at the appellants' bank.

In 1862 William Bayley opened an account at the same bank in his own name, and, soon afterwards, he brought to the bank for discount several bills and promissory notes purporting to be accepted by his father the respondent, and he obtained upon them large advances. Some of these bills and notes bore the signature of other parties besides the two Bayleys, father and son; and in three instances, viz., one in June and two in August, 1862, notice was sent by the bank to the father of dishonour by the acceptors of three of his son's bills bearing his indorsement. The father took no steps upon such notices to repudiate his liability; but the son in each instance brought to the bank fresh bills, purporting to bear his father's signature, and these the

bank took in exchange for the dishonoured drafts, which they gave up.

In January, 1863, notice was sent by the bank of another bill made by the son and bearing the father's indorsement, with the same result; the father kept silent, and the son replaced it with a fresh note. Eventually, and early in 1863, it became known that William Bayley had forged his father's name on each of the said bills and notes.

The amount in April, 1863, due upon these forgeries was upwards of 7,000l. William Bayley was also indebted to his father, on account of coal required in his trade, in the amount of 3,000l. His father had at that time at the appellants' bank a balance of upwards of 6,000l.

In consequence of the discovery, negotiations took place between the appellants and the two Bayleys, in the course of which it was proposed, under the advice of Mr. Bayley's solicitor, that the son's estate and the profits of his business should be made security in the hands of his father and one of his brothers for the amount of the debt, the father and brother to join as partial sureties, and to be indemnified out of the estate and profits. This offer

was

not accepted. Another proposition was then made to secure the payment of the debt by instalments of 1,000l. a year out of the profits of the son's business. This also was rejected, and one of the appellants observed, that if the bills were the father's, they, the bankers, were all right; if not, they would be no parties to compounding a felony.

Eventually, on the 20th of April, in the absence of his solicitor, the father signed an agreement to charge his collieries at Tipton with the aggregate amount due on the bills, in consideration of the appellants giving them up to him.

On the 22nd of April he deposited some of the title-deeds of his colliery with the bank solicitor, and at the same time he pressed for, and obtained, another note to be given up to him bearing the genuine acceptance of a third party and the forged indorsement of his own name; and he charged his colliery, by another agreement, with the amount of this last-mentioned note, in addition to that of the others.

On the 24th of April William Bayley

absconded, and on the 27th of April he was adjudicated a bankrupt.

On the 25th of April the respondent drew a cheque on the appellants', Messrs. Williams's, bank to transfer to another bank 5,000l. from his account; but the appellants refused to honour it.

On the 1st of May the respondent, having in the mean time, through his solicitor, repudiated the agreements, commenced an action to recover the balance, 6,7047., then standing to his credit at the appellants' bank, and a few days afterwards the appellants commenced a crossaction to recover the amount due under the agreements.

Thereupon the respondent filed his bill for a declaration that the agreements were obtained by improper and illegal pressure, and that the same should be given up to be cancelled, the plaintiff (now respondent) offering to deliver up to the defendants (now appellants) all the bills and notes, and in the mean time that the defendants' action on the said agreements should be restrained.

His Honour Vice Chancellor Stuart made the order prayed for, on the ground that the respondent was improperly influenced, and driven to sign the agreements by his fears, which were worked upon by the appellants making him see that they had acquired the power of prosecuting his son.

From this decree the Messrs. Williams now appealed, alleging that there had been no improper pressure, nor any arrangement for compounding a felony, and that the agreements were entered into by the respondent deliberately, after lengthened negotiation and discussion, without any condition that, if the agreements were signed, the appellants would abstain from criminally prosecuting the son.

Sir Hugh Cairns and Mr. E. K. Karslake (with them Mr. Kingdon), for the appellants. The father was civilly liable upon the bills. If the son had no authority from the father, the father's silence, after the notices of dishonour, coupled with the past transactions between him and his son, was sufficient to saddle him with the liability. The negotiations in April, 1863, were conducted on the footing that the father was then civilly liable; but that, as

between the father and son, the son ought to pay. At first it was proposed that the son's estate should be made liable, in the hands of his father and one of his brothers, as primary security, the father and brothers joining as sureties. The bank disposed of The bank disposed of this proposal by objecting a difficulty, which arose out of William Bayley's marriage settlement. To a fresh proposal, of a somewhat similar nature, they objected also, and this time the real ground for their objection was put forward, viz., they considered the father liable; then one of the appellants used the language, " If the bills are yours, we are all right; if not, we will have nothing to do with compounding a felony." In order to prevent all appearance of such an illegality, they refused to accept the father as surety when they considered him primarily liable. Thereupon the father, without in any way repudiating his liability, agreed to give security on his own property, the bank giving up to him the notes, so that he might stand as creditor for the full amount of the notes against the assets of his son. At that time the father hoped to carry his son through his difficulties, and so repay himself. The family of the Bayleys, in the course of the negotiations, often asserted that the estate was ample. It was only after he had given the security that the respondent found that his son's affairs were so bad that he could not be saved. Then he repudiated the arrangement, on the ground of undue pressure. There was no undue pressure.

The agreement was signed after six days' deliberation and negotiation. A threat to prosecute civil rights against a son is not in equity an undue pressure on the father; and here the bankers, throughout the negotiations, made no direct threat to prosecute criminally in the one case, nor any distinct agreement to abstain from so prosecuting in the other. Supposing the felony had been fully recognized by all parties, there was also the civil liability from the son, and the bankers might have lawfully accepted his own security for the amount of the bills, without prosecuting him for the forgeries. If the son might have compounded his own felony by giving security, why might not his father do this for him, indemnifying himself out of the assets of the son? As to one of the bills, there was a genuine acceptance by a third party, who cannot now

be sued upon it; there was no pressure here, for the bankers wished not to give it up. Yet the Vice Chancellor directed the security for the amount of this bill also to be given up to be cancelled, though the genuine acceptor (one Hardy) would have paid it when due, if the bankers had not parted with it on faith in the respondent's agreement

Ward v. Lloyd, 6 Man. & G. 785; s. c.

13 Law J. Rep. (N.S.) C.P. 5. Wallace v. Hardacre, 1 Campb. 45. Cockshott v. Bennett, 2 Term Rep. 763. Kirwan v. Goodman, 9 Dowl. P.C. 330. Reynell v. Sprye, 1 De Gex, M. & G.

679; s. c. 21 Law J. Rep. (N.S.) Chanc. 633.

Atkinson v. Denby, 6 Hurl. & N. 778; s. c. 30 Law J. Rep. (N s.) Exch. 361. The Attorney General (Sir R. Palmer) and Mr. Everitt, for the respondent. The father was clearly under the belief that his son would be prosecuted if he did not give the security, and that he would not if he gave it; and the appellants allowed him to act under this belief; there was, therefore, good ground for relief, on the ground of mistake and the appellants taking advantage of it. If there was no mistake, and the appellants threatened to prosecute, then there was an exercise of undue pressure. Though money actually paid under such a belief is not recoverable, an agreement made under it would not be enforced. If the bankers believed the father was liable, they would not have wanted security from him. The whole affair was a struggle to induce him to become liable. The father's pretended liability was a mere cloak to cover the illegal security which the bankers intended to extort from him. The expression of the bankers that they would not compound a felony was meant and was understood as a distinct threat that they would prosecute criminally if the father did not give the security. The agreement is void on the ground of public policy. When the policy of the law is violated, a party is not precluded, even by his own improper conduct, from setting up the illegality in his defence. The clear duty of the bankers was to prosecute; they should have first discharged that duty. To treat with the father was to make a bargain of their forbearance. Such a bargain need not be expressed or distinctly set forth. It is