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Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent dtre fiimis d des taux de reduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seul cliche, il est filmd d partir de I'angle sup6rieur gauche, de gauche d droits, et de haut en bas, en prenant le nombre d'images n6cessaire. Les diagrammes suivants illustrent la m6thode. 1 2 3 1 2 3 4 5 6 c THE GREAT PEW CASE. A COMPLETE SYNOPSIS OF rna GREAT PEW CASE: Appellant, JAMES JOHNSTON (Plaintiff) - - - AND THE MINISTER AND TRUSTEES OF ST. ANDREW'S CHURCH. MONTREAL (Defendants) Respondents FROM ITS INSTITUTION TO TUB FINAL DEOKEE OF THE SUPEEME COURT OF CANADA. JOMi'RISI.SM THE I'LEADI.NOS, AND THE .TUDaMENTS, OP THE aUI'KIUOIl COURT, OP THE COURT OF Al'I'EALS POH LOWER CANADA, AND OF TUB SCPREMB COntT OF OANAOA ] THE I1EMAUK8 OF ALL THE JDDGES, AND OF TUKIR LORDSHIPS THE JUSTICES OP THE SUPREME COURT ; WITH AN INTRODUCTION AND APPENDIX COMPILED BY R. D. McGIBBON, B.A. Student-at-Law. MONTREAL : DAWSON BROTHERS, PUBLISHERS. 1S77. J ■BV'Uo>4''\;^ StonJrral : PRINTED AT THE "GAZETTE" PUINTING HOUSE. TO THE IIONOUKAP.LE ANTOINE AIME DOUUON CHIEF Jl'STICK <)P THE COUUT ilF yVKKN's OKSCIt FOIl LOWBIl CANADA, THIS COMPILATION 18 IIESl'KCTFVM.V ^fliCRtctJ. 62734 IIDTTI^OnDUCTIOIT. The colobrity of this caso is not surprising. The pocnlitirities of the issues, the high position of the litigants, the exceptional character of the suit, the more than proverbial uncertainty of the litigation, the reversal of all the judgments of the Courts of the Province of Quebec by the Supreme Court of Canada — have all contributed to give it an importance which justifies its publica- tion in book form. At the date of the institution of the action in 187»3, a struggle of more than ordinary interest had commenced. IJoth sides were earnest and no doubt sincere in their pretentions. No eilbrt was spared to secure ultimate success. Through each successive Court the conflict was carried with inc^-eased energy, heightened by the public interest in the case, and by the zeal of the parties. Old statutes, antiquated books, and new ones, were procured from the book-shelves of Europe and America where- with to improvise new arguments or to embellish the old. It was, as remarked by one of the counsel, a struggle of wealth. The Plaintiir was unsuccessful in the Superior Court, Montreal, and in the Court of Queen's Bench, but the Supreme Court of Canada awarded him $300 damages and full costs in all the Courts. The result, though a triumph for the PlaintilF, has not left the pretentions of Defendants unsupported by authority. The Plaintiff was a member of the Church of Scotland, in Scotland, and an elder and member of the congregation of St. Andrew's Church, Montreal — a gentleman of large means and much energy. The Defendants were the wealthy Church Corporation holding and administering the church property for the congregation of St. Andrew's Church. Mr. Johnston had been a pew-holder in St. Andrew's Church continuously from Vlll. II l\> 1867 to 1872 inclusivo. In 18(jl> and 1872 ho oocupiod p(»w 68. Th«'rt> was no oxpross IcasinL;' of th<^ pews to him. In 1872 ho paid his pow rent and took a receipt, in the roilowinii- word.s : MdNTiiKAi., Jiinimry '.ith, 1H7J. $w.:,(). UfcrivcMl from .Ihiiu'H .FoluiHton tho Miim of Mixty-Hix /'j;, dollaiH, licliif; lint of lirMt-cliiMH pew No. OM in ht. AiuIitw'h Chnrcli, Btnvrr Hall, for tho ycur 1H72. I 'or tliu TrUMtri'H, .1. CLEMENTS. 1^ yds. ciiriict, Sl.CS— $71 .IH. St. Andriw'H C'hiurli. Tiiis humble document has h<'en tho suhjoct of much contro- versy. On the 7th Decoml)or, 1872, the Trus<:ees notilled Mr. Johnstcni that they would not let him a pew Ibr tho Ibllowing year, lie tendered i hem tho rental Ibr tho next year in advance, throuyh a notary, and continued to occupy the pow during tho year 1873. His right of tenure, however, was challenged. Thi^ Trustees placarded his pew "For Strangers"; removed his books and cushions, and seated strangers in th(» same ])ew with him. He maintained his occupation notwithstanding the disturbance, protested thci Trustees Ibr invading his rights, and vigorously assorted his title (inde Appendix M. N., P. li.) Ho based his rights ; — 1st. On th(^ ground that his h'ase was verbal, and that he was entitled to a three months notice to terminate it, which notice ae did not receive ; 2nd. On tho ground that there was a tacit renewal of his lease for the year 1873; 3rd. That under the By-laws and constitution and customs of the church, ho was entitled to continue his lease and to occupy a pew on paying the rental annually in advance. He claimed $10,000 for the torts of the Kespondents. Tho Trustees contended that under the By-laws, customs and usages of tho church the leases were only for a year ; that they had a discr tion to terminate the leases at the end of each year ; that it had become expedient and desirable not to lot a pew to Mr. Johnston for the year 1873 ; that in good faith they refused him a pew, and that their action had been approved by the congrega- tion. It was proved that there was no express letting of the pews each year to those already in occupation. The custom was IX. to coritinuo tho occupation by payment of rent in advance under the 10th Uy-law of iho chunh. The views oi' tho Judges in tlie dilioront Courts, even of those concurrin;^ in the Juduinent of the Supreme Court, are witloly diverj[5'ont. Tlio receipt tlioughtlessly uiven l>y the Church Por- ter has formed the su))Ject oi the most ri'lined reasonini;- — some of th > .Tudues holdini^ it to bo " a lease ;" others, '• evidence of ;i lease;" others, that it is not a lease; others, th'it it is a mere receipt for the payment of rental for a specific ♦erm, not incom- patible v'ith the existence of a written or verbal lease for several years. One of tiie Honourable Justices treated the receipt as if it were a written lease, and declared that Mr. Johnston \vas not entitled to any notice of its termination under Article lt)'»8 Civil Code : — " Tiie lea.se, if written, terminates of course, and without " notice, at the expiration of tht^ term agreed upon." But the lease is silent upon " the term aii*reed upon " for the duration of the lease. Xo au^rc'cment as to its term was proved. Custom had left the term indelinite. There beini;' no express agreement how far miiiht usage and custom be interpreted into the implied contract existing between the parties '' Move than one of the Honourable Judges held the lease to be verbal. Another Honourable Judue declared the lease to 1)0 verbal, ! ut held that the riaintiH" was not entitled to three months notice, required to terminate verbal leases under Article 1G")7 (Civil Code), as there was in the reci^ipt itself an express agreement as to the t»'rm, and no uncertainly as to its duration ; whilst another Honourable Judge held the least^ was verbal, and that a compliance with the article of the Code requiring three months notice to terminate it was essential. But the Bench even disagreed as to whether a pew^ in r* diurch can be the subject of a lease in the ordinary sense, some . honourable Judges holding that it w^as not ; others that a pew-holding was merely a right of usage {droit d'usa^^e) ; another that it constituted an easement. Some of the Judges held that Plaintiff had riuhts as a corporator and commoner of which he could not be deprived by the Trustees ; others, that the powers of the Trustees were absolute as to letting or refusing to let. A majority of Judges in the Supreme Court were of opinion that under the By-laws, custom and usairt' and constitution of St. Andrew's Church, Plaintiff was entitled ^o a continuance of his lease for the year 1873. There is no doubt l»ut that much of the difheulty in the present case has origi- nated from the vagueness of the constitution and By-laws of St. Andrew's Church. lUit apart from the consideration of Plaintiff's rights under the By-laws, customs and constitution, the diversity of opinion among the. Fudges as to the application of the law to pews and church seats, as to what constitutes a lease, as to what consti- tutes a receipt, and how tar cu.-stom should prevail in the absence of an express lease — is surprising. If the compiler might venture an opinion, based not merely on consideration of law, but of convenience, he would suggest that under the law of the Province of Quebec, no exceptional provisions exist establishing a different tenure for pews from that of other property. The terms of the code are plain and clear. Both " corporeal " and " incorporeal " things may be leased. Why not a pew in a church ? Is it rota *' corporeal " thing under Article 1605 of the Code ? "Why, then, should we adulterate the plain text of our jurisprudence with the abstruse considerations of rights and usages, or the still more abstruse and alien right of easement ? These are abnormal grafts, which sap the vigorous trtink. Taking the law as declared in the code, the question of the title is simple of solution. The nature and dtiration of the tenure should be regulated by the terms of the lease. If the lease were written it would be governed by the terms of Article 1658 : " The lease, if written, terminates " of course, and without notice, at the expiration of the term *' agreed upon." But if the lease be verbal or of uncertain duration (the alterna- tive is worthy of notice) then let Article 1657 apply : " When the " term of a lease is uncertain, or the lease is verbal or presume 1, " as provided in Article 1608, neither of the parties can terminate " it vithout giving notice to the other, with a delay of three " months, if the rent be payable at terms of three or more " months." Much difficulty would be avoided by following the law as it is. A lease should not be mistaken for a receipt, nor a receipt for a lease. There should surely be no misapprehension as to what XI. constitutes a rocoipt and what a leaso. The unilaieral instru- ment acknowledi^ing- the payment of a sum of money alfords an imperfect substitute for the duality of a consent essentia; in a contract. The present case presents to the legal profession a profound discussi(m from almost every imuii-inable standpoint of the law relating to pews aiivl church seats. To the general public, and esi)ecially to Churchwardens, Trustees and manau'ers of ecclesiastical property it is invaluable. From the plethora of authorities cited, and the elaborate thouuh diversified opinions expressed, the professional and business man may discover the simplest manner of regulatinu' the tenurt^ of church property and of avoiding disputes that unha]>pily too frequently mar the deliberations of ecclesiastical councils. Altogether, the case is one of tln' most remarkable that has been decid(^d in this country, aiul d 'serves to be preserved as a distinct record. The declaration and pleas disclose the real issues between the partits. The evidence, l)eing very voluminous, has been omitted, but the exhibits and extracts chielly relied upon by the parties, are set out in the Appendix. The original judgments have been inserted in order to make the case more complete. The arguments of counsel which traversed the ground taken by the Judges, have been omitted, partly to avoid monotony and partly because a condensation of them in keeping with the dimensions of this work would be unjust to the pleaders. The opinions of the Judges reciuire to be carefully read and studied. They constitute an enduring monument of lea-al knowledge on the subject matter of the case not to be found in the jurisprudence of any modern nation. The compiler begs to acknowledge his obligations to R. Cas- sds, Jr., Esq., Registrar, and to G-eorgc Duval, Esq., Precis-icriter of the Supreme Court of Canada ; and to L. W. Marchand, Esq., Clerk of the Court of Queen's Bench for Lower Canada. R. D. McGIRBON. Montreal, Auffust Ist, 1877. Tj^BLE OIF OOUSTTEISTTS. — » J 'age. Jiitr(>;luction vii Plaiiitiif s Declaration 1 Dc'lomlants' J'lca Jiids^nu'iit of the Superior Coiu't 1 1 Rciuiirks of Hon. Mr. Justice Johnson lij i'rofOO(linii;s in Court of (Queen's Bench 20 Judifnient of Court of (Queen's J'ench 2u iJeasons and Opinions of Jlon. Chief Justice Dorion (.lissontini;-). . . 21 " " " " Hon. Mr. Justice Ramsay (dissentinif) 27 ' " " " " " Sanborn 30 " " " " " " " Monk 42 << " Translation of Reasoiuj and Opinions of Hon. ]\[r. Justice Tessier.... 44 Proceedings in Sujircme Court of Canada 45 Reasons and Opinions of Hon. Chief Justice Richards (dissenting)... -J6 " " " " Hon. Mr. Justice Strong (dissenting) 58 •' " " " " " Taschereau 04 " " " " " " " Fournier 68 T]-anslatiou of Reasons and Opinions of Hon. Mr. Justice Fournier. 73 Reasons and Opinions of Hon. Mr. Justice Henry 78 " " " " " " « Ritchie 88 Final Decree of the Supreme Court of Canada 96 Appendix 98 CANADA, Province of Quebec, PittricI ijf MontrroK Superior Court. No. 2201. JAMES JOHNSTON, I'l.MNTIFh'. XWXl MINISTERS TRUSTEES oi ST. ANDREW'S CHURCH. MONTREAL. DHFHS'DANTS. PLAINTIFF'S DECLARATION. James Johnston, of the city and district of Montreal, whole- Halo merchant, Plaintiff, complains of TiiE ISIlNiSTEii AND Trustees of vSt. Andrew's Church, Montreal, a body politic and corporate, situate and being in the said city and district of Montreal, and there having- their -principal place ot business and nieeting-, duly incorporated by public acts of the Legislature of the heretofore Province of Canada, Defendanla, and declares : That at all the times and periods hereinaftin' mentioned the Plaintiit was a wholesale dry goods merchant, at the city of Montreal, and the said Defendants were a body politic and cor- porate, having their principal oilice andplace of business or m*^eling at ihe said city of Montreal. That during the years from 1867 to LST'^ inclusive and con- tinuously, the riaintift'was the lessei^ of ])ews in St. Andrew's Church, Montreal, having leased the same from Defendants. That for the year commencing the first day of January, 1872, and ending the 31st day of December, 1872, the Plaintift was the legal lessee and holder of the pew number 63 in said n» Church, which said pew was let to PlaiiitilF l)y Dcrendauts, aud was occupied ])y PlaintilF and his iamily for and durini:!^ said year, at a yearly rental of ^06.50, wliich sum w^as duly paid by riaintilF to Dcfeiulants. That thereby, as well as by the leasing' of other pews in said church from Defendants, PlaintilF became and was a pew holder in the said St. Andrew's Church under the tenth By-law* made under the Act of incorporation of Defendants and amendments thereto ; t a copy of which being th(> Constitution and liy-laws of said St. Andrew's Church is herewith fyled as riaintifr's exhibit number one. That the Plaintili's holding of said pew for and during the year from the 1st day of January, 1872, to the 31st day of December, 1872, w'as by verbal lease. That on the 7th day of December last past the PlaintitT received notice from Defendants that the said Defendants declined to re-let Plaintiff a pew for the year commencing the first day of January, 1873, which said notice was in words following; tc M'it : — "Montreal, 7th Dec, 1872. "Extract from the minutes of meeting of the Trustees of St. " Andrew's Church, held in the Vestry on Saturday, the 7vh *' Dec. inst. It was resolved : " That in order to sustain the action of the congregation, taken " in regard to Mr. James Johnston at its meeting on the evening " of the 4th November last, the Trustees do now decline to lei *' a pew to Mr. James Johnston for the ensuing year, " Carried, — Mr. A. Buntin dissenting. I 5,11 " (Signed) JAMES WARDLOW, " St. Andrew's Church, " Secretary." " To James Johnston, Esq., Montreal. That thereupon the Plaintiff in this cause wrote a friendly letter to Defendants, saying that he. Plaintiff, was anxious to • Vide Apprndix B. t Vide Appendix A. li] ii^' 3 continue tlio lease oi" said povv for another year ; but briui^ a ' in informed ])y Defendants that they would not It't him, Plain fi", a pew, and considerini]^ that he had not received sullicient legal notice to leave said pew, he caused a tender to be made of the sum of SGG.AO to the treasurer of Defendants, James MacDougall, Esq., on or about the 20th day of December, 1872, as and for the amount of rental for the year commencini!^ the first day of Janu- ary, 1873, for said pew ?iumber 08, being the hxed annual rental therefor, and no greater sum being demanded from PlaintitF, which said amount Defendants' said treasurer refused to accept, and further refused to let a pew to I'laintiff for any sum. That subsequently to wit, on the 27th day of Decem- ber, 1872, Plaintilf caused the Defendants to be notarially protested by the ministry of H. B. Wright, Esq., Notary Public, to deliver said pew to Plaintiff for the year commencing the first of January, 1873, tendering the said amount of rental for said pew to the said treasurer of Defendants, which amount Defend- ants refused to accept, and further refused to let said pew or any other pew in said Church to Plaintiff. A true copy of the said last mentioned protest is herein fyled as Plaintiffs exhibit num- ber two. That subsequently to wit, on the 2nd day of January, 1873, the first juridical day of the year 1873, when the rental for said pew became due, according to article 10 of said Py-law of St. Andrew's Church, Plaintiff' again caused Defenda^M^ to be pro- tested notarially by the ministry aforesaid (H. B. Wright, Notary Public), to let, lease and continue to Plaintiff as lessee, said pew number 68 in said St. Andrew's Church, tendering by said protest the sum of $66.50, currency of Canada, to said Treasurer of Defendants ; to which protest and request Defendants refused to accede or to accept said sum as rental for said pew. A true copy of said last mentioned protest is herein fyled as Plaintiffs exhibit number three. That notwithstanding said refusals. Plaintiff, w^ho was an Elder and member of Session of said Church, was present at divine service on the first day of January, 1873, and occuj^)ied said pew, No. 68, and continued to occupy it during the first ten days of •, ii w January without any protest, notice, or objection or interference by or on the part of th(i si id Defendants during- HJiid lirst ten days of January last past. That Plaintitf thus becam<' the h>gal lessee of said pew for th(* year commencing the lirst of January, 1873, and ending the Slst December, 1873, by the tacit renewal {tacile reconduction) by law provided. That Plaintiir always hath been and now is ready and willing to pay the yearly rental for said pew, number 08, to wit, the sum of S66.50, or any additionnl sum properly imi)osed ))y said Defendants as rental therefor. That subsequently to the 10th day of January, 1873, to wit, during the months of January, February, Maried said pew, Sunday after Sunday, at Divine Service, since thi^ first day of January last to the present time. That during said months of January, February, March and April last. Plaintiff, on one occasion, removed the l:)ooks for strangers placed in his pew by Defendants, to a table near by, and f^hortly afterwards received the following communication from Defendants' Secretary, the original letter being herein fyled as Plaintiff's exhibit No. 4 : "Montreal, 4th March, 1873. " Sir: " It having been brought to the notice of the " Trustees of St. Andrew's Church that you removed the books. '• out of the Strangers' pew, the Secretary w^as requested to write " to you, desiring you for the future not to remove the books- " placed in this pew^ by the Trustees for the use of strangers. •' Yours truly, "J. WARDLCW, " Secretary St. Andrew's Church. '•To James Johnston, Esq., Montreal." tiii > That on the receipt of said last meiitioiiod h'tter from tho Trustees, PhiiutilF answered the same, by letter dated the iUli day of March last past (1873), complainini^ of the matters hen'in complained of, a true copy of whieh letter is lu-rewith fyled as Plaintilfs exhibit No. 5, * deelaring his rii,^hts in said p»'vv, and protesting against tho annoyance and insult to whieli lu' had been sul)j((eted, of the contents of which said letter Defendants took no notice, but continued said insults and annoyances and disturbances as aforesaid. That subsequently, to wit, on the 27th day of May last past (1873) Plaintift again addressed a lett(>r (a copy of which is herewith fyled as Plaintitrs exhibit No. 6) to Defendants, calling upon them to apologizi^ for the matters herein complained of, on or l>efore the 15th day of June instant, f That Defendants made no answer to the Plaintilfs said letter of the 27th day of May last, calling for an ai)ology on or before the said 15th day of June, and gave no explanation whatever of their said conduct towards PlaintilF, though well knowing that they had acted illegally, improperly, maliciously, and to Plaintift's injury, disparagement, annoyance and disturbance. That the said Defendants acted, as aforesaid, maliciously and knowingly, and with intent to bring Plaintiff into contempt, ridicule and disgrace, not only with the congregation of St. Andrew's Church, Montreal, but with Plaintilfs friends and acquaintances, the clergy of the Church of Scotland in Canada, and the public generally ; and after being forewarned by Plaintiff* of his rights in said pew, and with intent to injure Plaintiff' socially and pecuniarily. That by reason of the said illegal, unjust, scandalous, malicious, defamatory and unchristian conduct of Defendants, Plaintiff hath been and is greatly injured in his good name, and fame and reputation, and is and hath been brought into scandal, ridicule, contempt and disgrace, not only with the Plaintiff's friends, but with the large and respectable congregation attending St. An- • Vide Appendix N. t Vide Appendix R and S. pf kM :'i flrcw'H Church, and Ihc many slranu^ors ihni fro thoro to worNhip, and with the puhlic; ^(MUMally, who liavo become avvaro of DofendantM' conduct to IMainliU'; and that Plaintiirs riremises sullered loss and damage, the wholo to th( damap» ol' the said Plaintill", at Montreal aforesaid, of ten thousand dollars currency of Canada. That the said Plaintilf hereby brings the amount of said rental tendered as aforesaid for said pev/ No. 08, to wit : — the sum of $06.50, current money of Canada, into this Honourable Court, and deposits the same with the Prothonotary thereof for Defend- ants' acceptan<'e, subject to the order of this Court. Wherefore Plaintilf making option of a trial })y jury, and pray- ing acte of said option,* further prays acte of thesudiciency of his xaid tenders for rental for said jxnv made to DeA'udants previous to the institution of this action for the said year commencing the lirst day of January, 187'3, and ending the 31st day of December, 1873, as also of the tender and dei)osit herewith made anew holder in said St. Andrew's Church, nor lessee of pew numhor 68, on or after the .Slst day of B«'comher, 1872, and tho Defendants say that (hey had a right to refuse (o lease (o the said riain(iir(he said pew No. C8 on and af(er (he said .TIst day of Decemljor, 1872, and the Defendants further say that according to tho liy-laws, custom and practice in tho said Church, tho pews are let each year, ■ nd from year to 3^ear, and tho lease expires at the end of each year, and the Defendants are under no ohligation (o continue (ho lease, nor is (hero any continuation thereof without their consent, nor is there any notice required to terminate such leases at thu end of (tich year; and the Defend- ants furdior say that at the (iiuo riaintilf received tho said notice on the 7th of Decern l)or last, that tlio said pew would not h(> loas(>d to him lor the year 1873, and frequently al'terwards, he, the riaintitr, acknowledged (h(^ right of the Dofendan(s (o refuse to least; him tho said pew, and thereby waived any preionticms to have notice, and admitted that he was not tho lessee of said y)ow. And the Defi>ndants say that, (o (ho best of (heir judgm«nit, before (ho said 31st day of December, 1872, it had became unde- sirable and inexpedient to let tho said pew. No. 68, to the Plaintili' for (he year commencing tho 1st day of January, 1873, or for any I '''■' u IM I,' 10 other timi', and in the oxerciso of tlii'ir discretion, and in good faith, without malice, or any other than conscientious motives, and with a desire to fulfil their duties, and for the preservation of peace and harmony in the congre;^ation, the Defendants did, to wit, on or about the 7th day ot December, 1872,^* decide and determine not to let a pew to the Plaintiff, which action of the Defendants wa^ ratilied and confirmed by the congrei^atioiL in a general meeting held in the lecture hall of the said St. Andrew's Church, on the 25th day of December, 1872, f at which Plaintiir was present, and in the proceedings whereof he participated ; and the Plaintiff then and thereafter acouiesced in said decision of the Defendants, and admitted that he was not the lessee of pew No. (J8, and the Defendants thereafter desired to accommodate strangers in said pew, there being no other pew in the Church available for the purpose, but the Plaintiff wrong- fully disturbed and interrupted the use of the said pew by strangers, and injured and caused damage in the premises of the Defendants; but hir^self has suffered no damage whatever in the premises. And the Defendants say, that in the whole matter they acted in good faith, and in accordance with the practice and By-laws, rules and regulations of the said Church. Wherefore the Defend- p.nts pray judgment, and that Pldntiffs action may be hence dismissed with costs. (Signed), CROSS, LUNN, DAVIDSON & FISHER, Attorneys for Defendants. Montreal, 12th September, 1873. :!i 1 M 'i ! The Defendants also pleaded the general issue. The Plaintiff's answer and replication w^ere general. Upon these issues the parties went to proof The case was heard by the Honourable Mr. Ju tice Johnson, in the Superior Court, and on the 30th December, 1873, the follow- ing Judgment was rendered, dismissing Plaintiffs action : Vide Appendix E. t Vide resolution and amendment Appendix K. iji 11 JUDGMENT OF THE SUPERIOR COURT, MONTREAL. Montreal, SOtli Deiembor, 1873. Present : THE HONOURABLE MR. JUSTICE JOHNSON. The Court having hoavl the parties b) their counsel respec- tively, as vv^ell upon the merits of this cause as on the two motions made by the Plaintiff on the 4th day of November last, to reject documents from record, having- examined the proceedings, proofs of record and evidence adduced and maturely deliberated : Considering that the Plaintiff has failed to establish by evidence the essential allegations of his declaration, and more particularly has failed to establish either that by the terms of his lease from the Defendant of pew No. G8 in St. Andrews Church, or that by the law or usage of the said Church, or that by tacit renewal of his said lease, he had any right to the occupation of the said pew, after the 31st day of December, 1872, but on the . contrary, it appears by the express terms of the paper. Plaintiff's Exhibit marked C,* produced and fyled by him on the 4th day of November, 1873, that the Plaintiff on the 9th day of January, 1872, paid to the Defendants $6G..50, as and for the rent of the said pew No. 68, for the year 1872, and that the contract thus evidenced, between the parties by its express terms, limited the right of the said Plain+iff in the said pew to the duration of the year 1872. Considering that by Law the said lease under such circum- stances terminated of cours.^ and without notice at the expiration of the term agreed ujion. Considering further that on the 7th day of December, 1872,, • Vtde Appendix C ! f' 12 the Dofondaiits gave notice to the Plaintiff that they would not let to him the said pow for the following year ; that on the 27th day oi' December, 1872, the Tlainliff, through a Notary Public, tendered a sum of money as for the rent of the said pew for the year 1873, and that the Defendants again refused to let it to him ; and that again on the 2nd day of January, 1873, the Plaintiff repeated the same request with the same result ; and that therefore the said Plaintiff was well aware of the Defendants' refusal aforesaid and cannot pretend that there was any consent on their part, without which consent a tacit renewal of the said lease could not and did not take place. Considering that after the said several notices to the Plaintiff, and the said several means of knowledge by him of the Defen- dants' refusal to let him the said pew, he cannot be admitted to misconstrue th^* tolerance of the Defendants, in respect of his presence in the said pew at New Year's time, into a tacit renewaj of his lease. Considering therefore that the said lease was not renewed, and considering that the Plaintiff has shown no right under the law% or the usage of the corporate body, here Defen- dants to wdt, the Minister and Trustees of St. Andrew's Church, Montreal, to have, use or occupy the said pew after the 1st day of January, 1873. Considering therefore that the Plaintiff has not shown any violation of his right on the part of the Defendants, nor any illegal conduct or malice on their part, but that on the contrary the Defendants have established *^he allegations and pretentions of their plea, by them firstly in this cause pleaded, and are entitled to have and maintain the conclusions of their said plea, doth maintain the said plea of the said Defendants, and doth •dismiss the Plaintiff's action with costs; and further adjudicating iipon the said motions, made on behalf of the PlaintiiF on the 4th day of November, 1873, doth dismiss the said motions with costs. M (Signed), HUBERT, PAPINEaU & HONEY, Prothondaries of the Superior Court. Montreal, 19th January, 1874. '■'■'M m 13 The remarks of the Honourable Mr. Justice Johnson are report- ed at pai^o 113 of the 18th volume of the Lower Canada Jurist, as follows : — he ih KEMAKKS OF THE HON. MR. JUSTK^E JOHNSON. Johnson, J. James Johnston va. the Minister and Trustees ok St Andkew's Church, MoNTKK.vii. The Plaintitl" complains, that beini>- a pew-holder in St. An- drew's Church in this city, for the year 1873, he has been mali- ciously disturbed in the occupation of his pew ; and, in fact» driven from the Church, and injured, and brought into contempt by the Defendants, from whom he asks a condemnation for $10,000 damages. The circumstames under which this action has arisen are peculiar and painful. The Plaintitf is evidently acting under strong feeling, whether of injury or resentment. The Defendants resolutely maintain they have acted within the limits of their right I shall oltjr no opinion upon anything but strict legal rights and liabilities of the parties; but to do this intelligibly, re([uires reference to their respective pretentions, and to the grounds on which they rest. The Plaintilf represents that he has attended St. Andrew's Church ever since 18(37, dur- ing all which time he has leased and occupi^'d one or more pews in it. That from 1st January, 1872, to the 31st of December of that year, he was the lessee; and holder of pew No. 68, paying annual rent for it to the amount of $6ti.50. That he was there- fore a pew holder under the 10th By-law oi the corporation of he church, and held under a verbal lease. That on the 7th De- cember, 1872, the Plaintili" received notice from the Defendants that they declined to let him a pew for the following year; whereupon he addressed to them a letter expressing his wish to renew the lease of his pew for another year ; but being again informed that ho could not get it, he caused a tender of $66.50 to be made to the treasurer of the Defendants, as rent for the year to come, which was, however, refu.sed ; that oflicer further 14 \l I'M <',: m I ill declinim^ to let tho PlaintifFa pew for any sum whatever. Sub- sequ'.Mitly, on the 27th Dec, he again, through a notary, tendered tho money, and required delivery of the pew, and again met with a refusal. That on the 2nd January, 1873, pew rents being payable annually in advance, the Plaintiff repeated the same request, with the same result. That notwithstanding these refusals, the Plaintiff persisted in attending the church, and sitting in pew No. G8 on New Year's Day, 1873, and occupied it for the first ten days of the month without any interference by the Defendants ; by which the lease was, as the Plaintiff contends, renewed by tacite reconduction. That after the first ten days of the new year, during January, February, March, and April, the Defendants maliciously disturbed and molested the Plaintiff in his enjoyment and occupation of the pew No. 68, which, however, he continued to hold under most disagreeable circum- st nces — such as having his books removed and others put there for the use of strangers ; having the cushions and hassocks sent down to his office ; having strangers shown into his pew and having a printed placard with the words, " For Strangers," stuck upon it. The Plaintiff then proceeds to say that notwithstand- ing all these things, he persisted in occupying his pew up to the bringing of this action in June last. He then reverts to some- thing that had occurred in March, 1873. The books that had been put in the pew 68 for the use of strangers, having been removed by Mr. Johnston, he shortly afterwards got the following letter from the Secretary of the Charch : — " Sir, — It having been brought to the notice of the Trustees of St. Andrew's Church, that you removed the books out of the stranger's pew, the Secretary was requested to write to you desiring you for the future not to remove the books placed by the Trustees for the use of strangers ■ 'Hi: Yours truly, J. WARDLOW, Secretary. Wti 15 ses of the you dby Up to this point in the recital of the Plaintiff's wrongs, it is quite intelligible that he contends for two things: 1st, that he was lawfully the tenant of pew No. 08, after the 1st January, 1873 ; and 2nd, that the Defendants, being without right in what they did, moreover did it in a vexalious manner, entitling him to greater sympathy, and heavier damages. If they roally were, or even if he thought they were, wrongs that he had to complain of, (which is the one question to be hereafter considered) it is quite conceivable that the Plaintilf should deem himself entitled to complain of them ; but it is not so easy to undersiand, under these circumstances, why he should continue to complain that having received the Stn-retary's letter, certainly a very civil one on the face of it, he answered it on the 6th March reasserting his rights, and received no reply to his remonstrances. He complains Alike when the Defendants do write to him, and when they do not ; and as if determined to have as many complaints as possible, he proceeds still further to set up in his declaration, that after this, again on the 7th oi May last, he wrote still another letter to the Defendants, and that they have not even taken any notice of that. So that we have before us on the Plaintiff's side an asser- tion of right on his part, and of a violation of it by Defendants, not only by what they did, but by what they refrained from doing. They once let him a pew in their church, for a year, he f^ays, and as long as he continues to pay the rent in advance he continues to hold that pew That when in the exercise of what they consider?d their right the Defendants put out his books, returned his hassocks, and stack up a notice that the pew was for strangers, and supplied it with books for their use, they were using means that denote malice on their part ; and not only that, but that when Mr. Johnston ejected the books, he has a right to complaiu of them for writing him a letter on the subject ; and when he writes to them he has an equal right to complain if he gets no answer. The Defendants encounter itiis action by plead- ing, 1st. That the Plaintiff was not lessee of the pew No. 68 after 31st December, 1872, and they had a right to refuse to let it to him for the next year. 2nd. That under the by-laws, custom and practice of the church, the pews are let each year, and for one I 'I'l ' i i!] 'I' i I ly I;, ' 'J ' ih ,i lis |!- i I- !i:i!.;i m I d mj. ■ IK ;if' ii .,i 16 year only, and the Defendants are under no obliuation to con- tinue the leases, nor is there any continuation of them without their consent, nor any notice required of their d«'termination. 3rd. That the notice of the 7th of December was unnecessary ; and the Plaintiff frequeuliy aknowledi^ed the Defendants' right to dispense with notice, and admitted that he was not the lessee. 4th. That in the exercise of a discretionary power, and in good faith, and for the sake of peace and harmony in the congregation they determined not to re-let the pew to the Plaintill ; and their determination has been ratiiied by the congi .'gation in general meeting on the 25th December, 1872, at which mcctinii- the riaintitf participated, and admitted he was without right to th<'. pew. 5th. The Defendants put in issue the truth of the riaintill's allegations, and expressly deny any malice on their part. In the view that I take of this case, I must say that I think much evidence and much argument have been expended unnecessarily. 1 do not consider that it presents any question as to the power of disfranchisement, or of amotion I have had time fully to consider the matter, and I adhere to the opinioiL that I intimated at the trial, when I asked, whether there was in reality more than one question before the Court, viz. . •' Had the Defendants a right to do as they did ? " For, if they had, the Plaintill" cannot complain that they exercised it unless such exercise w^as a mere cloak for express malice ; and, if they hatl not, all the best motives in the world would not give it. If after the 1st January, 1873, pew No. t)S was legally in the possession of the Defenaants to do as they pleased with it, it is obvious that they might put out of it, any body else's property that they found there, and might placard it to let or for the use of st- angers ; but if all this time the law gave this pew to the Plaintiff, as a conse- quence of the natural or th;; terms of his previous lease of it, acts of ownership by the Defendants would be unauthorised and offensive. The fact that the Defendants gave notice on the 7th of December thot the pew would not be re-let for the following year is unquestionable. The reasons they may have had for coming to this determination, whether they are good ones or bad ones, may serve to characterize their conduct ; but cannot change 17 the fact itself. Thr riaiiitillkiiow on the 7th of Decombor that the pew he occupii'd in St. Andrew's Church would not be let to him after the expiration of the year, as far as the Defendants could settle that question. He must then rely upon the nature and terms of his previous contract to hold it ai^ainst their will ; and he does so. He says he had a verbal lease ; that it entitled him by law and usage to hold the pew as long as he continued to pay in advance in the manner prescribed by the By-laws of the church ; that the Defendants let him know that he could not have it when the year was up, but that he defied them. He went there as usual, and for some days — the opening- days of the year, the pre-emin 'ut season of peace and good will — the Defendants would not openly assert their right, and this he construed for a time to mean that they acquiesced in his view^ of their mutual obligations ; but he is soon undeceived ; for after a very short interval of seasonable forbearance on their part, they openly exercise ownership and give him plainly to understand that he has no right there. The Plaintiff must show that he had a right, either, 1st, by the express terms of an unexpired lease ; or, 2nd, by the tacit continuation of it ; or 3rd, by the law and invariable usage of the Church. The Plaintiff produced at the EnquHe on the 4th November three papers with a list of exhibits describing them. The name given to these papers is unimportant. We have to look at what they make proof of; and they undeniably make proof as between these parties that the Plaintiff rented successively three pews from the Defendants. So much is this the case, that it is observ- able in the words of the descriptive list of these exhibits which the Plaintiff himself furnishes, that he calls the first paper *' A lease for pew 68 in St. Andrew's Church for the year 1869."' Then the word " lease " is barred by a stroke of the pen, and the word "receipt" is substituted. The reason of this alteration is manifest. The Plaintiff in his declaration had set out that he held under a verbal lease, and to admit that he held under a written one would have bound him to its terms. But however this may be, the fact or series of facts is established. He paid pew rent in 1869, for pew No, 68. For the year 1870 no payment is proved ; but in 1871, there is proof of the payment of $66.50 m 18 I' ' 'i 'I Mi'luf I lis ■'■ 'i\'} i8i:ii ;-3|-:i ^, ii, 311 ■m for pew No. 08 : and in 1872 thore is also proof that he paid the same sum lor pew No. 08, which is the one he last occupied. This last receipt if, dated January 9th, 1872, and acknowledges receipt of the money, " being' for rent of 1st CI ss Peio, No. 08, in Si. Andreivs Church, Beaver Hal/, for the year 1872." If this is not evidence of the intention of the parties (at least as far as it goes), it would be difficult to say what does constitute evidence. I do not mean to say that it must necessarily exclude, under all circumstances, positive and clear proof, of an invaria})le usage entitling the Plaintiff' to a renewal of the lease on the same terms ; but that is a separate (juestion; and in the absence of legal evi- dence of this usage (a point I will ]>resently notice), this paper, whether called " lease " or " receipt," conclusively shows that the money was taken for a specific thing that was given, viz., the enjoyment of the pew for the year 1872, and no longer. "We must then apply the law which, in such case, is found in Art. 1058 : " The lease, if written, terminates, of course, and without notice, at the expiration of the term agreed upon." So much, then, for the terms of^the lease. Then as to tacite reconduction : this pretension is equally unfounded. There can be no tacite reconduction except under a presumption of the consent of both pajties, and the very contrary is made decisively apparent by the notice of the 7th of December ; the lact of the Plaintiff being suffered at New Year's time to sit in the pew, though in the absence oj notice, it might be important, if not decisive, can have no weight under the circumstances. The Plaintiff is therefore driven to rest his case upon the law and usage of the Church, and in this attempt I think he has completely failed. "We must not confound a voluntary organization like this one, exercising corporate powers under certain regulations, ivith the church in Scotland from ivhich it sprung. "We have not imported the Scottish Parish Church and all its usages here. It is because we had not got these things that we w^ere obliged to shift for ourselves, and get incorporated, and agree among ourselves how ive should be governed, all which appears to have been well and wisely done. The fact so highly creditable to St. Andrew's Church, that in few or no instances have refusals been given to renew leases, as long 10 as the rent is paid in advance, is a very distinct thincr IVom the invaria))le o})liiiation to renew them in all cascH. It mo/ely shows that the congresation has hitherto been harmonious, and that this is the lirst time a discordant note has been heard. I hold, therefore, in the present case, that the Defendants have established their riii'ht under the term of the lease, and I am therefore relieved from considering- their reasons for exercising it, and I entirely fail to see any indication of etpress malice. Accordin^^ to this view of the matter I ought properly to decline noticing this subject any farther; and I certainly shall do so, as far as the merits of that question are concerned : l)ut as mere information for the parties, which may not be entirely useless to them, and as disclosing the general principles upon which courts of justice act in pari materia, I would refer to a book published in New York in 1808, by Mr. Murray Hollman. upon the ecclesi- astical law of that State. It treats of questions connected with the incorporation of religious s*)cieties under the statutes of that State — questions which, the author observef^, are often inlluenced by the ecclesiastical system of the church or body in connection with which they arise ; and it contains an historical notice of all those churches which had a place of any importance in the colony before tvie revolution. At pages 275-(), the ]n'inciple will be found laid down, both by the courts of several of the States and by the Lord Chancellor of England — in the case of Forbes vs. Eden, in the House of Lords, that courts will not interfere with the determination of the majority of the body of which the com- plaining party is a voluntary member, except in certain strictly defined cases of disposal or misappropriation of i)roperty in trust ; and it is only when civil rights as to property are involved, that the secular tribunals wiil examine so far as to see that the lunda- mental rules of law have been observed. These i>rinciples have guided me in disposing of the present case ; and having satisfied myself that under the law applicable to th(^ terms of his lipase, the Plaintiff has suffered no violation of his right, his action for damages for such violation must be dismissed with costs. There was a motion made to reject answers to interrogatories, and also to reject a paper produced with one of these answers. These ,l( % It' 1) y H !#•• :i 'iT li 20 aro (lisi)os('(l ol" l)y tin- judumeiit. also, both of thorn being clismiNs^'d. On the .*»Oth Dec('m))tM', 1873, the date of Ihe Ibro'ioin'r Judi^- meiit, !in appeal was taken to the Court oi' Qiieen'is Bench tor Lo\Ter Canada (Appeal side). The caKe was argued on the 2lHt and 22nd Septemlx'V, 1H75, before the Honourable C'hi(d" Justice Dorion, and the Honourable Justices Monk, Taschereau, lianiKay and Sanborn. Before the rendering- of Judgment the Honour- able Mr. Justice TasclnM-eau was elevated to the Supreme Court of Canada, and a re-argument was ordered and had on the I'jth Dettember,, 1875, In 'fore the Honourabh^ Chief Justice Dorion, and the HonourabK' Justices Monk, Ramsay, Sanborn, and Tessier. At the hearing in the Queen's Bench, Mr. D. Macmasler appeared as counsel for the Ai)peliant ; Mr. Alex. Cross, Q.C , and Mr. C. P. Davidson, Q. C, for the Respondents. On the 3rd of February, 1870, the following Judgment was rendered : — JUDGMENT OF THE COURT OF QUEEN'S BENCH. CANADA Province District NADA ^ of (Quebec, >■ of .Montreal. J COURT OF QUEEN'S BENCH, (Appeal side.) .Montreal, Thursday, ;5rd February, 187G. Present : The Honourable Mr. Chief Justice Dorion. " " Mr. JusTK^E Monk. "" " Mr. Justice Ramsay. " " Mr. Justice Sanborn. " •' Mr. Justice Tessier. The Court of our Lady the Queen, now here, having heard the Appellant and Respondents by their counsel respectively, exam- ined, as well the record and inoceedings had iu the Court below, as the reasons of appeal fyled by the Appellant, and the answers 21 thereto; and miituro dclilxMntion on tho whole heini;' had: Con- sideriui^ that there in no error in the judument appealed from, to-wit, the judp^ment rendered by the Snperior Court lor Lower Canada, sitting- at Montreal, in the District of Montreal, on the 80th day of December, 1H78, doth allirni the same with costs to the Kespondents ag-ainst the said Appellant; The Honoural .e Chief Justice Dorion and Mr. Justice llanisay dissentinu'. And on motion of Messrs. Cross, Lunn 8c Davidson, Attorneys for Respondents, the (-ourt doth urant them distraction of their costs on the judgment this day rendered in this cause. (Signed) C. dk (TRANDrRK, D. Clerk of Appeals. The foUow^ing remarks were made by the Honourable Justices of the Court of Queen's Bench, sitting at Montreal, at the render- ing of Judgment. REASONS AND OriNIOXS OF THE UONOURAHLE CHIEF JUSTICE DORION: DoKlON, C. J., dissenting. — The vVpiwliaiit (Plaint iff in the Court below) has been a member of the congregation of St. Andrew's Church, Montreal, since 1870. Soon after joining the Church he was elected an elder and a member of session, and became a pew^ holder in the church. The Respondents form a corporation under the provisions of an Act passed in 1840, 12th Vict., cap. 154. They are invested with the property, and are charii'c^d with the administration of the temporalities of the church for the use and advantau'e of the congregation. They are elected by the |M>w-holders residing in the parish of Montreal, who have the right to hold meetings to inspect the register of the proceedings of the Trustees and to control the alienation of the church property. In the year 1872, several mestings of the congregation were held, at which the Appellant toook a prominent part, and by his ' 'i ; II ,! I' |i ' I Ml Hi .'! ii ill iP I ! I; ; ' ill 22 ooursi' of ftftion gave ollonce to Iho mujority. TIun Ird to a reHO- liitioii |>aHN«Ml on Iho 4th of N<)\ cmbtT, l)y whi
  • Cliun li. Oil th«' 7th Dcccmlx'r r()llo\viii<»- tlio KcNpondt'iits also i>asHed a resolution to tlin oHi'tt " tliat in order to sustain the action of the con^rciiation talvcn in regard to Mr. James Johnston at its ineot- inif on the cvt'iiinn' ol the '!th November hist, tlic Trustees do now di'cline to h»t a pew to Mr. James Johnston i'or tlie ensuing- year.'' This resolution wns communicaled to the Appelhint, who insisted upon retaininu the pi-w he then occupied, and in order to do so he tench'red the rent payable lor tlie year 1H73. The ollei' was reji'cted by the Wespondents, and their action was, sub- He(juentiy, approved ol" l)y the congreuation. The Api)elhint continued to occupy the pew alter the bei;iniuni:»' of 187«{, but l)einn' disturbed by the Jvespondents, wiio invited other parties to sit in it, and liad i)hicard8 or notices posted on it iiulicatinu' that the pew was reserved lor stranuers, he iinally brouLfht this action, by which he aUeiies tluit the Kespondents have persistently molesled Iiini in the enjoyment ol' his pew, renews his tender of the amount of the rent for 1873, and claims damaues to the amount of $10,000. The action was dismissed l>y the Court below, and the Appel- lant now seeks before this Court the reversal of the jud,i>ment. The pr«'tensions of the Appellant are, that as a mem))er of the congregation, and for several years a pewholder in the church, he could not be deprived of his pew as long as he paid the usual rent. He also contends that from want of a proper notiie, as required by Article 1(>57 of the Civil ' ode, his lease was con- tinued for the year 1873 by iacite recotib'dion. The Kespondents, on the other hand, laim that the pews in St. Andrew's Church are leased from year to year, that no notice is re- quired to terminate them, and that having the entire control of the temporalities of the church, they at their will, and in the exercise of their discretion, had the right to refuse to the Appellant a renewal of the lease of his pew for another year — that in fact all the pew^s fall within their control at the end of each year ; that Til 28 no ('<)rj)<)rato rit»htH aro v«'8t»'(l in tlu' conu;n»2rnti(Hi, and that th«» Appelant is not a m»'m})(»r of tho corporation whicii i.s cxcluni v»'ly composed of tho lit'sponilcnls. It is inipossiMo to apply to tlio IcaM^ of a p<'\v the rul«»s applic- able to an ordinary lca.sc of a house or other real estate. The lessee of a pew has no actual and Respondents had no right to deprive the Appellant of his pew. as long as he was willing to pay the usual rent, and the de- cision would likely be the same, if the jurisprudence prevailing in England and in Scotland, were to be followed here. It is how- ever contended that these lules are peculiar to a parish organisa- tion and that they were not intended for voluntary associations, such as the congregation and the corporation of St. Andrew's Church; that these voluntary associations are subject to no other rule but that of the will of the majority of its members Without questioning the fact, that the rules applying to paro- chial church(\s, were not made for voluntary associations such as St. Andrew's Church, I can not admit that the will of the major- ity :s the only authority to settle difficulties with regard to the rights of individual members of sn<^'i associations. In the absence of any positive law or of any judicial adjudication on the points raised here, those rules followed in other churches must be rect ived as the expression of what is generally considered as just and reasonable in the settlement of similar claims, and as such must have their due weia'ht. As there are no regulations in St. Andrew's Church as to the leasing of pews, the usages which in Church and Ecclesiastical matters are always of great authority must be consulted. (Senecal & Jarred dit Beauregard 4 L. C. Jurist 223, also note in 3 Barn, and Aid. 245). The evi- dence adduced establishes that in St. Andrew's Church, those members of the Congregation who have once obtained a pew, have always been considered as entitled to retain it as long as they continued to be members of the church and to pay the usual 25 ront; — that the case of the Appellant is the only instance in which a pew has been refused to a mt^mber of St. Andrew's Church ; the only other ease being that of three young men who were depriAed of the pew leased to the Appellant, but ih<'y were not the lessees of the pew, and only oi^cupied each a seat in it, under what seems to haA'e been considered a temporary arrange- ment, to last until the whole pew could be l(\ased. It is further established that in the Church of Scotland, from which St. Andrew's Church sprung, and with which it claims to oe in connection, no member of the church can be deprived of his pew except by the Kirk Session. The Respondents have also attempted to prove that the conduct of the Appellant, both at the meetings of the congregation and in th(^ church, was such th-it they were justified in depriving him of his pew. It must bo ob- served, however, that there are no allegations in the pleadings to that effect, and to which such evidence could apply. In their furiirm the Hespondents admit that their object was that indicated by their resolution of the 7th of December, that is, to sustain the action of the congr':>gation and thereby to force the Appellant to retire from the Eldership of the church, and to deprive him of the right of either speaking or voting at the meetings ol* the congregation This admission of the Trustees is of itself a con- demnation of their course. They had no authority to exclude the Appellant from the meetings of the congregation, nor to expel him from the church. The congregation itself could not do it, and yet the Respondents seek to obtain the same object by eject- ing him from his pew, which is tantamount to expelling him from the church altogether. If the Appellant deserved to be censured or to be expelled from the church, he was amenable for his conduct to a superior authority, that of the Kirk Session, but not to that of the Respondents. For the purpose of sustaining their extreme pretensions, the Res])ondents claim that they alone form the Corporation, that no corporate rights are extended to or vested in the congregation ; and from them they draw the conclusion, that they can dispose of the pews and lease them or not, just as they may deem proper. The logical consequence of this would be that they might close the church altogether, without the 111 llii !! i^ t*l i" ill: 11 ^ ill ii;; m 26 congr(\i^'atioii having any right to interfere or complain. It is tni.i' tliat the Respondents coi^stitute the Corporation, but this Corporation has been created to replace the Trustees who before the Act of Incorporation acted under a trust deed, and for the purpose of holding the church property in trust for the congregation, and of administering it for the use, benefit and advantage of all the members of the congregation indiscrimi- nately. They are mere administrators appointed by the congre- gdcion and subject in many respects to the control and direction exercised by the meetings of the Congregation. The members of the Congregation are in fact the real owners of the church pro- perty, although the title of it is vested in the Respondents in their corporate name and capacity, in the same manner as other church properties are vested in the Cure and Marguilliers or church- wardens of a parish. As commoners the members of the congre- gation have certain rights resulting from the implied contract entered into when they joined the congregation, and of which they cannot be deprived arbitrarily by the Respondents. Among these rights is that of obtaining seats and pews on the same terms and conditions as all the other members of the congregation, and of retaining them as long as they submit to the rules and usages of the church. It has been contended that the action was not properly brought,^ but I have failed to discover any fatal error or omission in it. It is an action on the case, warranted by the circumstances disclosed, and which can be supported by numerous authorities. (Durand de Maillane Diet. De Droit Canonique vo. Banc, p. 271, 1st Col.; Auger and Gringras, Stuart's Rep. 135 ; Stocks & Booth, 1 Term Rep. 428). Dareau, in his Traite des Injures, 1 vol., p. 317, cites a judgment rendered in a case of Bechet and Pollier, by which the Defendant, who was the parish priest, was con- demned to heavy damages for attempting to exclude Bechet from a pew in the church. An action of damages is a proper remedy againi.t undue inter- ference with private rights, whether such rights consist in that of holding a pew in a church or any other property. I would, therefore, reverse the judgment of the Court below, i I 27 and maintain the Appellant's action by allowing- him a small amount of damages. U^ low, REASONS AND OriNIONS OF THE HONOURABLE MU. JUSTICE RAMSAY: Ramsay, J., dissenting- : — This appeal is from a judgment of the Superior Court, dismissing an action for damages brought by Appellant against the Respondents, for refusing, without justifi- able grounds, to allow him to continue in the occupation of pew No. 68, in St. Andrew's Chun h, in this city. The Respondents, Defendants in the Court below, are a cor- porate body, under the terms of an Act of 1849, 12th Vic., c. 154. The preamble of that Act sets forth sundry reasons for its being passed, into the correctness of all of which it is not necessary now to enter. Suffice it to say that the original body, as retog- nized by that preamble, was the congregation worshipping in a church commonly called St. Andrew's Church, situate in St. Peter street, Montreal, and destined " for the public worship and exer- cise of the religion of the Church of Scotland." As they were not a corporate body, they acted by two Trustees, the late Alexander Rea and William Hunter, in whom the pro- perty was vested '• for the benefit and behoof of the said church and congregation, and for no other purpose whatsoever." Rea dying, at a general meeting of the ".vhole congio • .ion, other Trustees were appointed for holding- the said property along wi ' i he said William Hunter, the then surviving Trustee. From tii '" . time the congregation named other Trustees, till at length Lie ■ II appears to have centred in the Rev. Alexander MathioaO'^, D.D., John Smith, John Boston, "William Edmonstone, John Frothingham, and James Grilmour, Trustees of the said church, and these gentlemen, the minister and Trustees, petitioned Parliament, and obtained the Act in question. The history of this body prior to its incorporation, thus legis- latively established, is not without importance, for the disposi- i )ns of the Act are not perfectly clear. By section 1 it is the ml m 11 ^ ■ J' t',. <•' i ] i;! \(' HI ■t^ ''^ !' ^'t I; ,, >: :i 1!^ -•s|i ' 28 minister and trustees who are incorp >rated, and they have the power to make, alter and amend such (sir) By-laws, ordinances, and regulations as shall not be contrary to the cojistitation and laws of the Province, the Act of incorporation, or to the con- stitution of the Church of Scotland as established by law in Scotland. But in spite of this disposition of section 1, it does not appear that the minister and Trustees constituted the whole corporation. In other words corporators' rights existed elsewhere, which really reduced the minister and Trustees to 'he condition of adminis- trators of the corporate estate, and legislators subject to the free- hold proviso above mentioned. They were not limited by the objects of the corporation only, but they were subject to depri- vation by removal and other causes, and they could not fill up the vacancies occurrii There was then a body superior to them, add who had imim /^ e rights. There is some difficulty .u delining who their constituents were. Section 5, which describes the g(meral course of proceed- ing with respect to the lilling of the offices of minister and Trustees, says, it shall be such person or persons as shall be elected " by a majority of the proprietors of one year's standing, to wit, of pews in the said Church, not in arrears of ])ew rent, at a meeting to be convened as hereinafter mentioned." Section 6 enacts how the meeting is to be convened in case of the vacancy happening by the death, or removal, or change of residence of the minister, and how it is to be composed. It is to be called by the Kirk Session, and to be composed of " proprietors, pew-holders, ard members of the said church, not in arrears of rent." And this meeting is to elect a committee of nine, 6y a plurality of votes, evidently of this meeting, of which nine shall be proprietors of, at least, one year's standing, in full communion with the church ; and the other three may be pew-holders, in full communion, who have paid rent for three years. Section 7 enacts : Three trustees shall be chosen from propri- etors in communion with the church, by proprietors not in arrears of rent. It is not said whether communicants or not. Setting aside Section 5, which appears to be needless, and 20 wit, at a looking at the dispositions of Sections 6 and 7, we find several persons recognized by the Act as havuig rights : — Proprietors of one year's standing, in communion with the church ; proprietors not in arrear of rent ; pew-holders not in arreai of rent ; members of the said church not in arrear of rei\t ; pew-holders who have paid rent for three years. The condition of proprietors and of pew-holders is clear enough, but who form the class of " members of the church ? " It seems to me, it must be the communicants and persons attending the services of the church, more loosely described in the preamble as the " worshippers.'' This view is further sustai))ed by the 12th By-law, which is in thes«^ words : " The term congregation in these By-laws imi)lies the proprietors of pews, pew-holders, members in full communion ivith the Church and regular sitters, whose npmes are eri.ered in the church books, collectively." We have, then, a body of somewhat undefined extent, having rights in the corporation, and the members of which are chiefly dis- tinguishable by the community of their religious belief, and from the fact that they worship together. The Appellant, Plaintifl" in the Court below, is a member of the Church of Scotland as it exists in Canada, and particularly does he fall into the category of being a member of the particular Church erected for the public worship and exercise of the religion of the Church of Scotland, and incorporated under the name and style of " The Ministers and Trustees of St. Andrew's Chur h, Montreal." In addition to this, he was a pew-holder in the said Church, and particularly from January, 1871, to the 31st of December, 1872, he was the occupant of the pew No. 68. He. moreover, held an official position of a spiritual character in connection with that very congregation, perfectly well known to the ecclesiastical law of the Church of Scotland, recognized by the Act of 1869, which spiritual office is held by thr*t law ad vitam, or ad culpam. He was, therefore, indisputably a corporator, and as such had common rights with the other corporators, subject to the Statutes and the By-laws. I may here add that it is not for a moment pretended that his position as a worshipper, as a communicant, or as an elder could be in any way lawfully k f II II '> 'J !:'! lil. ;i.. 30 affected by any action of the Trustees ; in fact it is clearly estab- lished, and unquestionably the law of the Church of Scotland, recognized by the Acts ot incorporation, that in matters of conduct he was only amenable to the Kirk Session. But it is contended that the Trustees could refuse a pew to a member of the church, already a pew-holder, he not bein"- under any disability, financial or otherwise, but on the contrary having- duly paid his pew rent for the past, and tendering it for the future in advance, accord- ing to the rules and l?y-laws. Of course, if the Trustees can do this arbitrarily and without assigning any cause, there is an end of the matter, and Mr. Johnston has no remedy ; and though something new like this was advanced in the pleas and at the Bar, this extreme position was not at first unequivocally taken up, nor does it appear to be confidently relied on. In their notice of the 7th of December, informing Appellant that he could not have his pew, a reason is ostensibly given. The notice is in these words : — " It was resolved — That in order to sustain the action of the congregation taken in regard to Mr. James Johnston at its meeting on the evening of the 4th of November last, the Trustees do now decline to let a pew to Mr. James Johnston for the ensuing year." Now, in order to form some idea of whether the desire to sustain the action of the congregation on the 4th of November is a bona fide reason, it becomes necessary ^o enquire what the action of the congregation on the 4th of November was. We are enabled to satisfy ourselves on this point completely, for we have been furnished with a minute of the proceedings, and we have also elaborate testimony as to an altercation which took place at the meeting, and which explains* the latter part of the minute, and the observations of the Chairman. The minute then goes on to say, that after considerabla dis- cussion it was moved, seconded, and resolved : " That in virtue of the fact that Mr. Johnston has not acted harmoniously with his brother Elders, he be requested to resign his position as Elder." The motive, then, of the Trustees, in refusing Appellant a pew, was to force him to resign as an Elder. No one will, for a moment, pretend that the deposing of Elders was a portion of .31 the duties of the Trustees, and thoy were, therefore, usini^ the power conferred on them for one jmrpose arbitrarily and vexa- tiously, to gain another end. "What renders this peculiarly objectionable in the present ca'-f, is the fact that the Minister — the Chairm'^u of the meetinci, of the 4th November, who de- nounced Mr. Johnston to the meeting — a)id who was the person with whom Appellant had an altercation on that occasion and others, it would seem — was himself one of the Trustees. In short, it looked as if the Trustees determined to coerce Appellant into a resignation of his Eldership, because he had olFended a Trustee. But their excuse is no better, h^gally speaking, if deprived of this suspicion ; for the meeting of the 4th November had no more right to summon Appellant to resign his Eldership than the Trustees had the right to coerce him into it. It may not be altogether without importance to note that on the 8th November, four days after the order which sought to compel Appellant to resign his position as Elder, Mr. Lang, the chairman of both meetings, w^rote a letter to Mr. Johnston, urging on every possible consideration, for his wife's sake, for his own, and above all, " for his soul's sake," to bend before the storm which Mr. Lang himself had directed against him. We have not to enquire whether Mr. Lang feared that a new prosecution in the Kirk Sessions would Le as fruitless as on a former occasion ; but, to say the least of it, the proceeding exhibits an eagerness which it would have been more prudent to conceal, if it could not be overcome. Unsatisfactory as is the reason given by the Trustees on the 7th December, for refusing Appellant a pew, that pleaded in the action is still more curious. They no longer desire to sustain the action of the congregation, because Appellant did not work •' harmoniously with his brother Elders," but they say that, " to the best of their judgment, it had become undesirable and inexpe- dient to let the said pew, No. 68, to the Plaintiff for the year commencing the 1st January, 1873." This plea, then, is a return to the pretension of the Respondents' arbitrary right to refuse to a member of the corporation the common right to lease a pew. But, as it has been said, this was not relied on, for we have n V a !' %!*•: ')■■ I ', f li 1 ji, •( ;i. 11"^ 32 evidoiice of all the squabbling whicli took place (the rij^hts and wrongs ol" which it would perhaps not be very (msy to balance), and we have, suporadd(3d, pretended improprit^ties of conduct of Mr. Johnston in church, not alleged, not amounting to a great deal, and which, even if they had been more important, were not within the jurisdiction of the Trvistees, but within that of the Kirk Session. Thi! Ivespondents' argument at the Bar amounts to this : — That a church in a colony is nothing more than a voluntary associa- tion, from which the members may be removed at the pleasure of the administrative body or by the members, and this without any reason ; at least so I understood it. In support of this view, and as even a more extreme example, the case of a member recently expelled from a London club was cited. It is not altogether easy to seize the precise value of " voluntary association " as an absolute term ; but it seems to me to be sing- ularly infelicitous when used to signify the association of persons for rcligiou.s purposes. Not one man in a hundred chooses his religion, and consequently I cannot see any kind of analogy between the tie that binds co-religionists together, and that which exists between the members of a social club. The case of a man being refused a box in a theatre would have been nearer the question from the Respondents' point of view. But even if applicable, the club cases do not bear out Respon- dents' pretentions. All that has ever been said is that in a club established for social purposes, a member may be expelled ac- cording to the By-laws and in good faith. In the first of these cases rei)orted, Hopkinson vs. The Marcjuis of Exeter, L.R., 5 E. 63, Lord Romilly said : " These clubs are very peculiar institutions. They are societies of gentlemen who meet principally for social purposes, sometimes of a literary nature, sometimes to promote political objects, as in the Conservative or the Reform Club, but the principal objects of w^hich are social — the others being only secondary. It is there- fore necessary that there should be a good understanding between all the members, and that nothing should occur that is likely to disturb the good feeling that ought to subsist between them." i? : 4111 33 It follows that a club is a partnership ol' a kind difTcrcnt IVom any othor. The Master of the Rolls then goes on to show that the nature of such partnership required the existence of a By-law of a very stringent nature for the removal of objectionable members. The case of Richardson-G-ardner vs. Fremantle (Fisher's Dig. Vo. Club, Sup. 1871), was decided on the same principle. It may, however, be said there is no By-law limiting the rights of the Trustees, from which it can l)e decided that they have exceeded their powers, and that no conclusion can be arrived at from the laws and usages of the Church in Scotland, because in the parish churches the seats are distributed under a parochial system, and in the Chapels of Ease the matter is regulated accord- ing to a model adopted by the General Assembly in 182G. But can it be maintained seriously that, because the congregation of St. Andrew's Church has had so little foresight as not to reduce to writing a special rule on this matter, we arc , therefore, to presume an understanding among its mem])crs of a system which never could have been approved by reasonable peoi)le ? However desirable it might be to get rid of Mr. Johnston, it is evident tluit those; who were against him would hesitate to aflirin a resolution to the eflfeet that the Trustees may, at their discretion and without cause, discontinue the lease of a pew to any pewholder. We see, then, in the cases invoked as a parallel, that, without cause, even the majority could not exclude a member. There must be the l^y-law, common to all, and the cause together Respondents felt their weakness, and they say that they have not excluded Appellant from worship, and that they have only denied him a pew. It seems to mi> this is a disingenuous })re- text. As a commoner, he had an equal right to all the advantages of the church — of a pew, if one was vacant — to his pew" while he fulfilled the conditions imposed in refer(ince to a new-comer — a fortiori in preference to strangers. 1 have already said that I thought the illustration of a social club in some respects unfor- tunate, but as it has been selected by Respondents to maintain their position, at the risk of appearing trivial, I shall give an example which has, at all events, the merit of being entirely in w ii< 't; I 34 V } i*j' MU im-\ :V 'A f 1 «•■■' ■ if'' ,f point. A mombor of a club orders his dinner. The committee want to <>t't rid of him, b»'cause he had a quarrel with a jiopular m<'mbi'r, and they decline to let him have his dinner, no that he may be indnct'd to resign. "Would not an action lie for this tres})ass V And what Hhould we say of a defence of this sort on the part of the club ? " We never expelled you from the club ; you were ])erniit(ed to wander about the club, read the news- pajjcrs, and pick up a precarious subsistence from iho plate of biscuits, but we are not o})lioed to gve you dinner, because you have no vested right in any particular mutton s are irresponsible, these assertions are of no consequence ; and if they have to justify without a decision of the Kirk Session, their opinion is of no avail. In their factum the Respondents try to make another point. They affect to consider the action as an action of common lease. This pretension appears to me to be on a par with the whole proceedings of the Trustees. The word lease is certainly used through the action, and a point is made that Appellant had tacite reconduction ; but it is plain that there was no contract of ordi- nary lease, and that the law of tacite reconduction does not apply. However, the action does not necessarily depend on that. The whole story is set forth in the declaration, and that is all that is required in our system of pleading. Appellant expressly says that he was a corporator ; a pew-holder fcr years, and a member of the Kirk Session ; that he had had pew^ 68 for the current year ; that he desired to continue to occupy it, and tendered the f.: I;: 86 rent in advance, and that tho RoHpondonts knowingly and maliciously, and in order to brinp; Appellant into contempt, refused to let him have the pew. The Respondents perfectly understood that this was the main question, and they answered it as well as they could. They set up the By-laws, customs and usages of the said church. The By-laws do not touch the matter, and the usages and customs of the church were against them. They plead that it had become undesirable and inexpedient to let the said pew to Appellant (not less a special excuse because a bad one), and they conclude by averring that " in the whole they acted in good faith and in accordance with the practice, By-laws, rules and regulations of the said church." It is precisely on this issue thus presented the judgment will go, from which I dissent. Why then pretend that it is a question of pleading ? And if it was only a question of whether the lease of a pew was a common lease or not, why try to prove that Mrs. This or Mrs. That had been all but terrified into a faint by the eccentricities of Mr. Johnston ? Is it not too plain that this illegal evidence was dragged in to bolster up an impossible justification ? I trust no one will be deluded by this shallow artifice ; what this case in effect decides is that every member of every congregation holds his pew at will of the Trustees or the churchwardens. I think, then, the Appellant is entitled to some damages, but they should be little more than nominal. In the first place, he has not proved any special damages, and his con- duct was not such as to entitle him to any exemplary damages. Although the conduct of the trustees appears to me to be illegal, they were no doubt exposed to a species of obstructiveness which was almost turbulent. The accusation Ihat he had called Mr Lang a liar, if not correct as to the words used, was certainly justified by the only inference which could be drawn from Mr. Johnston's words. He accused Mr. Lang not only of untruth- fulness, by saying that the reverse of what Mr. Lang had stated was true, and that Mr. Lang knew it, but he also accused him of a deceitful manoeuvre. How far such an accusation in such a place, made without foundation, is open to ecclesiastical censure, 'ff^l K i1 .3 I lb *.'3 ' I ' f 36 is a question I am not proparod to decide ; but it certainly, as a gross provocation, docronses the Api^'llant's ripfht to damaires, and I would j^ivo him .'iOs. and coHts in tho Court below, and the costs of his appeal. .'! !\i I m \ ^!:i Htl , REASONS AND OPINIONS OF THE HONOURABLE MR. JUSTICE SANBORN: Sanborn, J. : — This is an action whoTo))y the Apjiellant de- mands of the Respondents, as a body politic and cori)oriite, the sum of $10,000 as dama^'es. His action is based upon the pre- tension that he was entitled to the use, as lessee, of a certain pew in St. Andrew's Church in Montreal, from the 1st of January, 1H73, to the 1st of January, 1H74, being- pew numbered 68. Ap- pellant alleges that he was lessee of a p(»w as a pew-holder from 18G7 to 1873, and of this particular pew, numbered 68, during the year 1872 ; and that he tendered to the Respondents, in ad- vance, the rent for said pew No. 08, being $66.50. This tender was made on the 26th December, 1872. It appears that the Ap- pellant had had difficulties with the congregation, and that they had found his participation in the business affairs of the congre- gation so disagreeable that the Tnistees, on the 7th December, 1872, resolved not to lease Appellant a pew for tne ensuing year. This was apparently done to prevent Appellant's possessing the right of a pew-holder under Art. 10 of the By-laws, which de- clares that any person who should lease a pew from the Trustees for one year, and pay the rent in advance, should be considered a pew-holder. The rent of pews and sittings is to be paid* annu- ally in advance, from the 1st of January, and is to b(> considered then due. It is contended that this pew was held under a verbal lease, and that the Appellant had a right to three months' notice of the cessation of said lease, and not having had this, he was the lessee and rightful holder, as lessee of said j^ew, for the year 1873, having oflfered the rent in advance, and that he had been troubled in the possession of said pew by Respondents, who had 87 aH a caused his cUHhious and hookN to l)0 removed, and the p»'W to bo labelled " For strani^erN," and wtrangerH to bo placed therein, and that the Appellant had been, by the action ol' Uespondonts, uiit to eontumely and disgrace, and Kul)jected to great ])ain ol' mind and annoyance, ibr which Kospoi'dents are rospon.sihli'. It must be observed (hut the Appellant treats the Uespondentw as the parti(vs with whom hv contracted, and as the responsible parties having control ol' the temi)uralitic8 ol" the church and congregation. Without reference to any incidentid ([ueslions that arise in this case, the Appellant's action must depend upon his being a li'ssee ; and the law relating to h'ssors and lessees apply- ing to a church likti St. Andr«'w's Church, in Montreal, governea according to tho laws and usages ol' the Presbyterian Church ol' Scotland, so far as these usages have been proved in the case. It may be remarked that pows urc not c-laimed as property in tho strict senses of tho word. " Parishioners acquire (/tiusi property " in the seats or ari'a for the special purpose of Divine Service." — 1 Bell's Dictionary, 203. " The right which is sometimes acquired " by private persons in tho seats of a church is not, in strict speech, " a right of property, but is coniined to the special purpose of at- " tending Divine service, and may be taken from the acquirer if ho " removes to anoiher parish, and if the increase of the parishioners, "to all of whom tho common use of tho church belongs, makes "tho division of the area necessary." — Erskine's Principles of the Law of Scotland, p. 110. This has reference to pew owners and to parish churches in Scotland. In St. Andrew's Church, in Montreal, some persons have a proprietary interest in [)ews ; others, as Appellant, hold only by lease, having no ownership in a pew. As the rights which ownership of pews gives to the owner are peculiar, and not subject to many of tho ordinary inci- dents of property, so what is termed lease is not an ordinary kind of lease. It is a means of contributing to tho support of tho Gospel. It, in this case, gives a voice in the appointment of Trustees, who are annually chosen to administer the temporalities of the church and congregation. It cannot well be subject to tacite reconduc Hon, because the occupancy is only when services are held, and ■i,!^ i I lit; It I& 1 J" 'i ■( M I 1 m ill ; Hit m i if 38 if from any oause they should be omitted for one Sabbath at the commencement of the year, there would be no means of estab- lishing- either a holding over or a tacit renewal of the lease. The Trustees are not lessors, in the ordinary serxse, because the funds derived from pew rent are only received in trust for the ben(^fii of the congregation. The droit de gagerie could not well exist or be exercised, as the lessee could not be expected or re- quired to garnish the pew to secure the rent. Pothier, Louage No. 14, says : " On tolere neanmoins le lounge des bancs et des " chaises, dans les eglises ; on pent dire ce n'est pas proprement " un contriit de louage et ce f[u'on donne n'est pas donne comme " le prix d'usage de ces choses qui ne sont pas applicables, mais " comme une contribution aux charges dv Ir- fabrique." If this is a lease, it is not one which falls within the application of Art. 1657, C. C. It is not such a verbal lease as is contemplated by that article. It is the uncertainty of the term of the lea«e which necessitates the three moi.tbs' notice to terminate it. This was fully dis- cussed and determined in the case of Webster vs. Lamontagne, decided in this Court on the 21st September, 1874. In this case there was no tacit renewal. The pew No, 68 had only been leased in 1872, and the reu' T/as paid in advance, and a receipt taken, specifying the rent for one year. This was in conformity with ihe By-laws, and Appellant, as a party interested, must have known it without such receipt. Before the expiration of the year Respondents notified Appellant that they would not lease him a pew for the next year. This was quite sufiicient if it were treated as an ordinary lease to prevent a contract of tacW reconduction. This appears to have been an exceptional proceeding, and without grave reasons, it would seem as oppressive, as it is admitted to have been unpre" oedented. The question, however, which we Lave to determine, is not one of laste or propriety, or on 3 of notice, but one of right. As I shall have occasion afterwards to remark upon the powers of the Trustees of this church, I will only say here that I consider they had, during their term of office, control of the church pro- 39 perty and thi' administration of the temporalities of the church, and, as such, had a right to rent pews, and the discretion to deter- mine who should pnd who should not becorat? lesset^s. This (ase as it is presented, and the facts pro-'ed, according' to my under- standing of it, give this Court no ])Ower to enquire into the discipline of the church, or the relations of the Appellant, as an elder of the church. These are spiritual matters, entirely distinct from the administration of church property, and could only be considered, under any circumstances, in order to enforce mutual contracts, made by By-laws or resolutions oi agreement, to which all parties assent in becoming members of a church. The Appellant bases his claim entirely upon the fact of his being a lessee from Respondents ; and he seeks to enforce an aureement with Respondiuits, a)id demands of them damages for breach of such alleged contract. He claims no prescriptive right oi- faculty, he does not even claim under a three years' occu])ancy, from which he might contend that he had ?. right to a [xnv in St. Andrew's Church, so long as he remained a member of the church and congreg-\tion, but he claims damages a ;ainst 1^'spondents for refusing to lease him the particular pev/ No. 68. He does not at all base his pretentions upon the fact that he is a member of the church, or that he is an elder in the church, and we can only determine his claim as he has presented it. The Presby- terian Ch'^rch in Canada being an outgrowth of the Church of Scotland, like all Protestant churches here, is a mere voluntary association ; and the members and adherents of that church may acquire rights, as well from its constitution, as from the usages of the Presbyterian Church of Scotland, from which their polity originated, when adopted by them. These rights and usages, when proved and invoked, doubtless may be enfoned by the Civil Law, by virtue of the contract of association. This was clearly settled by the judgment in the Privy Council in the cases of Long vs. The Bishop of r^ape Tov/n, 9 L.J. N. S. p. 809, and in Re Bishop of Natal, 11 L. J. N. S., p. 353, where it was decided, " that in places where there is no church established by law, *' the Church of England is in the same relation with any other •*' religious body, in no better, but in no worse position, and the ■I .1 I; 40 'I fe 1] ':'■• m li " members may adopt, as the members of any other communion " may adopt, rules for enforcing discipline within their body, *' which will be binding on those who have expressly, or by impli- " cation, assented to them." This places the Presbyterian Church here in the same position as it is in the United States, and there is an obvious dilFereUi-e, as was remarked by the Honourable Judge, who rendered judgment in the Court below, between the position of a member of St. Andrew's Church, in Montreal, and that of a member, as parishioner, of the Established Church of Scotland. The church here is not a church for any particular area, as a pa.ish, l)ut has to do only with those who voluntarily become members of il. Where thi' church is afliliated with the State, and a member or adherent has rights, as resident of a particular parish, the loss of which affects his legal status as a citizen, the case is v«'ry different from this, where no such r<^lations exist. Tht^ cases decided in many of the United Stat(\s. and ])articularly in the State of New York, are very numerous, determining almost every variety of questions that can arise bctv^een churches and church cori)orations and members or adherents. It has been determined m cases of incorporated Presbyterian churches, under a similar act to that under which Respondents are incorporated, that Trustees represent the church and congregation, in the same sense as bank dirt'ctors represent a bank, and have control of all the temj^oralities of the church, and of church property, during the continuance of their office. The doctrine has been well set- tled there that the Trust(^es, and not the congregation, have full control of the church property. This will be found, amongst other cases, in German Reformed Church vs. Buche, 5 N. Y. Rep., p. QQd (Sanford) ; Law vs. Cifferly, 7 Paige 281 ; Petty vs. Trustees, &('., Belfort (Smith), N. Y. Rep. 267; Houlan vs. First Reformed Dutch Church (New Jersey), 4 U. S. Digest 452 ; Madison Ave- nue Church vs. Baptist Church, Oliver street, 3 Robertson N. Y. Rep. 597. In the case of Robertson vs. Bullions, 11 N. Y. Rep, 265, the relations and powers of the Trustees of a corporation of a Presbyterian churt-h, very similar to the Corporation of St* Andrew's Church, are fully discussed. These cases are not cited 41 as having- the binding force of law here, but as reason, and the result of the mature deliberation of judges of high legal attain- ments, upon a state of facts such as is disclosed in the present case. Aid cannot be sought from English decisions to any great extent because a similar state of facts can scarcely be found there The powers and relations of Trustees to e dissenting church in England seem to be recognised in much the same manner there as in the American cases cited, see Cooper vs. Whitehousc, G C. & P. 545 ; Rex vs. Dagger Lane Chapel, 2 Smith 20 ; liex vs. Barker, 3 Burroughs 1265. From the view taken by me of this case, as presented, it is unnecessary to decide whether the Truj^tecs have exceeded their powers or whether the action taken by them was justiiiable, under the circumstances ; but if we were compelled to decide whether they had t'.ie power to do what they did, I should have no hesitation in spying they had. If the power did not rest in them I am at a loss to see where it lay. As to the mode in which they exercised their discretion, we certainly have nothing to do in this case. The issue has not been invoked, as the action is upon a contract. If it were, it would be very ques- tionable if the Court ext^rcise an appellate jurisdiction on a subject confided to their discretion. There can be no difficulty, as between them and the congregation, because their action was approved by the congregation. It is said the piiwev of the Trus- tees was not plenary, it required action of the congregaLioii. It is shewn that their act respecting App' nt was in accordance with the wish of the 'ongregation, and thai, nearly aii unanimous wish. If the A]-^)eLant had any remedy, it won' be to assort his right, as a member and officer in the church, to a .•- 'ul ther* iti as a faculty, a proceeding in rem to be assigned a seat or pew oi- to be maintained in possession of one, not an action of dam iges for breach of contract. But had it been presented in this i< im, I should find great difficulty in coming to his relief. Where a chuich is a voluntary association, and a person may withdiaA\ from it at pleasure, so far as his civil right is concerned, I dc .ot well see how it can be denied to the large majority of a congre- gation, that they may separate from him — in other words, refuse him participation in the advantages of the church, and of the •i.i I I ti, in lili v. »l.l 1 h ':!•« ilry til'l: ft i ^ H) m 42 reasons to justify them in so doing, it would soem, they must be the judges. Of course, where there is a contract, or an implied contract by the constitution to which all have assented, the rules adopted must be observed. I think the judgment of the Court a quo correct which dismisses Appellant's action, and it is confirmed. REASONS AND OPINIONS OF THE HONOURABLE MR. JUSTICE MONK: Monk, J. : — did not desire to add much to what had fallen from his colleague. Mr. Justice Sanborn had so clearly ex- pressed the view which he entertained, that he would simply state the grounds on which he concurred in the judgment. The Court had to do simply with the questions of law and fact raised in the case. Adhering strictly to the points raised by the plead- ings, he would remark that Mr. Johnston wanted three ^hings. First, he wanted this Court to declare that there was a lease, and that he was entitled to notice. And it there was any difhculty about the notice, he wished the Court to declare that there was incite reconduction, because he occupied the pew for eight or ten days against the will of the Trustees and the congregation. Upon the declaration, the Court had to declare whether tho Trustees had a right to terminate the occupancy of a pew. The occupation of a pew could not be viewed as a lease. The occu- pant got a droit d'usage for a year ; it terminated at the end of the year. Whether it was a lease or a droit d'usage, it expired on the 1st January. Mr. Johnston was so entirely aware of this, that he applied to the Trustees for the continuation of his lease of pew 68 for another year, and offered to pay the rent. This was a recognition that the Trustees had this right of exclusion, and so they had. They had control over the temporalities of the church. If they had not, who had ? Mr. Johnston recognized the right, and now he said though he did recognize it, he had a right to the pew, notwithstanding the refusal of the Trustees to 48 IS MR. go on for another year and if not, there was tadte reconduction. But if he occupied this pew beyond the year, he did so in a sanc- tuary where it is not always convenient to bring in a policeman and have a fight during the services. The Trustees took every precaution ; they wrote to him ; they warned him ; they put up notices on the pew. Nevertheless Mr. Johnston persisted in go- ing to this pew, and he created serious disturbance in the church. His pretensions that he had a lease, or that there was tacite reconduction, did not apply for a moment. It was proved that Mr. Johnston, long before the action of the Trustees was taken, did conduct himself in a very excited manner. It did not involve moral wrong ; but he was a very eccentric man. He was disturbing the church. The congregation met on the 4th November, and said they could not allow this to go on. The Trustees were abundantly justified in their course, and the judg- ment dismissing the action should be confirmed. REASONS AND OPINIONS OF THE HONOURABLE MR. JUSTICE TESSIER: Tessier, J.: — Je ne dois ajouter que quelques mots aux observa- tions de mes collegues. La question se resout a savoir, si M. Johnston a etabli le droit qui forme la base de sa demantle, II n'a prouve aucun droit de propriete dans le banc en question, mais il a allegue qu'il etait le locataire de ce banc et qu'il avait le droit de continuer a occuper le dit banc apres le ler Mai, 1873. A-t-il prouve un bail ecrit ou verbal ? Non. II produit un simple re9U pour I'occupation du banc durant I'annee 1872, On ne pent pas assimiler I'occupation des bancs dans une eglise au bail des mai- sons ou d'immeubles. Ce n'est qu'une simple permission d'occu- pation qui a pris fin le ler Janvier 1873, parceque le demandeur M. Johnston n'a prouve aucun bail ou permission d'occuper ce banc apres le ler Mai 1873. II a ete au contraire, averti par ecrit des le 7 Decern bre 1872 que les syndics ne voulaient pas lui louer ce banc pour I'annee 1873. Cette notice etait suffisante. A.. W § A\ I i .1 a I'j ^1 •; :i;, ■ ^ Nil' % ^ "i 'i iwi i 'I" ■■:(*", IP' 1 i : ' ifilii 44 II GHt vrai que M. Johnston invoque et prouve un certain usage dans cette Eglise de laisser les occupants de bancs continuer leur occu])ation d'annee en annee ; mais cet usage ne pent pas con- stituer un droit positif a I'encontre des droits absolus et neces- saires des syndics de cette Eglise. II n'y a pas do tacito reconduc- tion, ni prescription en matiere de banc. L'usage ne pent 6tre qu'interi)r6tatif de I'exercise d'un droit qui n'existe pas. C'est bien a raison de cela que le demandeur a eu le prudence de ne pas conclure a ^tre remis en possession du dit banc, mais il a porte un simple action en dommages. II est possible qu'il n'a pas ete traite avec tout le menagement que meritait son rang dans I'eglise, mais son droit a des dom- mages ne ])eut d'ecouler que d'action illegale des syndics de lui refuser la continuation d'occupation de ce banr. Si les syndics, comme je le crois, avaient le droit de refuser a M. Johnston I'oc- cupation comme locataire de ce banc apres le ler Janvier 1873, c'est M. Johnston qui a agi illegulement en persistant a Aouloir conserver la possession du banc en question ; c'est la la cause de ses troubles, et s'il a agi illegalement il ne pent reclamer de dom- mages. Je concours done dans le jugement de cette cour qui re- jete I'appel et conhrme le jugement de la Cour Inlerieure. TES.SIER J. (Translation): — I need only add a few words to the observations of my colleagues. The question is resolved into knowing whether Mr. Johnston has established the right which forms the basis of his action. He has not proved any right of ownership in the pew in question, but he alleged that he was the lessee of this pew, and that he was entitled to continue to occupy it after the 1st May, 1873. Has he proved a lease, written or verbal ? No. He produces, simply, a receipt for the occupa- tion of the pew during the year 1872. The occupation of a pew in a church cannot be assimilated to the lease of a house, or of immoveable property. This is only a mere permission of occupa- tion which ends on the first of January, 1873, because Mr. John- ston, the Plaintiff, has not proved any lease or permission to occupy the said pew after May 1st, 1873. He was, on the con- trary, notified in writing, on the 7th December, 1872, that the M 46 Trustees were unwilling to lease this pew to him lor the year 1873. This notice was sufficient. It is true that Mr. Johnston invokes and proves a certain custom prevalent in this church, of allowing the pew holders to continue in occupation from year to year; but this custom cannot constitute a positive right contrary to the absolute and necessary rights of the Trustees of this church. There is no tacit renewal or prescription of leases. Usage cannot be invoked to explain a right which does not exist. It is on account of this that the Plaintiff has been prudent enough not to pray in his conclusion to be reinstated in po.ssossion of his pew; but he has brought a simple action for damages. It is possible he has not been treated with all the consideration due to his rank in the church, but his right to damag(>s could only arise from the illegal action on the part of the Trustees of refusing him the continuation of the occupation of his pew. If the Trustees had, as I think, the right to refuse to Mr. Johnston the occupation, as lessee of this pew, after the 1st January, 1873, it is Mr. Johnston who acted illegally in persist*mtly desiring to retain possession of the pew in question. This is the cause of his troubles, and if he has acted illegally he cannot claim damages. I concur in the judgment of this Court, which dismisses the appeal and confirms the judgment of the Court below. ^ "I '4t PROCEEDINGS IN THE SUPREME COURT OF CANADA. From the judgment of the Court of Queen's Bench an appeal was instituted to the Supreme Court of Canada, and the case came up for hearing on the 16th January, 1877, in the Supreme Court, in the Parliament Buildings, Ottawa, before thcnr Lord- ships the Honourable Chief Justice Richards, and the Honourable Justices Ritchie, Strong, Taschereau, Fournier, and Henry. Mr. Macmaster and Mr. W. H. Kerr, Q.C., were heard in sup- port of the appeal. Mr. C. P. Davidson, Q.C., and Mr. Cross H f'4i ' I f h\ 46 Q.C., contra: and Mr. Kerr in roply. The arguments of counsel lasted three days. Their Lordships reserved judgment. On the 28th June, 1877, the Supreme Court decreed in favour of the Appellant — reversed the judgments of the Superior Court, Montreal, and of the Court of Queen's Bench for Lower Canada, and condemned the Defendants to pay to Appellant the sum of |300 damages, and the costs in all the Courts. . ; ivl l|« 1.; '.i ,- ■ '■ ;: f' if lit The following remarks were made by their Lordships on rendering judgment : REASONS AND OPINIONS OF HIS LORDSHIP THE HONOURABLE CHIEF JUSTICE RICHARDS : Richards, C. J. (dissenting) : — The Statute under which the Defendants were created a Corporation, 12 Yic, Cap. 154, recites that the ground on which St. Andrew's Church was erected for the public w^orsliip and exercise of the religion of the Church of Scotland, in Montreal, was purchased by Alexand(!r Rae and William Hunter, as Trustees, for the con- gregation worshipping in the said church, and held under a deed dated 3rd May, 1805, for the benefit and behoof of the said church, and the congregation thereof, and for no other purposes. The Statutes further recited the purchase of certain lots forming part of the Beaver Hall property, in the City of Montreal, by certain Trustees of the said church, for the use and behoof of the said congregation of the said church, and on w^hich there was then being built a church suitable for the increased numbers of the said congregation. The inconvenience of the Trustees not having a corporate capacity was also referred to, and the Legis- lature proceeded to constitute the then existing Trustees (who are named) a body corporate and politic, by the name of " The Minister and Trustees of St. Andrew's Church, Montreal." They were authorized to make, establish, and put in execution, alter or repeal such By-laws, rules, &c., as shall not be contrary to the Constitution and Laws of the Province, or to the provisions of I' 'i. 47 the Act, c to the Constitution of the Church of Scotland, as established in Scotland, as may appear to the Corporation neces- sary or expedient for the interests thereof. Three of the mem- bers of the Corporation to form 2. quorum, for all matters to be done and disposed of by the Corporation. Section 2. — The Corporation were to hold, stand and be possessed of the lots of ground, with the buildings thereon, forever, for the several limitations, trusts, provisions and uses declared and expressed in respect of the same by the Deeds of Sale referred to, and the declaration by Alexander Rae and William Hunter (made before notaries) and by the terms under which the Trustees were elected. Section 3. — The Corporation were authorized to sell all, or any portion of, the property held in trust by them, but only on a requisi- tion signed by three-fourths of the proprietors of pews in the church, of at least one year's standing, and not in arrears of rent, and at the time residing in the parish of Montreal ; and no sale or alienation shall ))e valid unless sanctioned by three- fourths of the proprietors, qualified as aforesaid. Si'ction 5 provides for filling up vacancies in the corporation. When the vacancy is occasioned by the death, removal, or change of residence of the minister, the succeeding minister shall fill the vacancy. When the vacancy is in the number of th(^ lay mem- bers the same shall be supplied by the votes of such persons as shall be elected to fill the same, by a majority of the votes of the proprietors of pews in the said church, of one year's standing, not in arrears of pew rent, at a meeting to be con- vened as thereafter provided. Section 6. — Whenever a vacancy occurs in the oflB.ce of minister of the church, a meetin ;; is to be called of the proprietors, peiv-holders, and members of the church not in arrears of rent, for the purpose of taking the steps necessary for supplying the vacancy, by electing a committee of nine, of whom six shall be proprietors of at least one year's standing, and in full communion with the church, and the remaining three may be pew-holders who have paid rent for three years preceding their election, and are in full communion with the church ; who shall have full power to take 1. V liu "'■, 'Ml ,1+ iil'fr 1* 48 such Htops ns to thorn mav j^em best adapted for spoedily obtain- inj? a minister to the Haid church. Under Section 7 — to fill the vaciincieH as to the lay Trustt^es — a mec^tini^ is to be call(»d of the proprietors, not in arrears of rent, on a day to b(» named, for the purpose of supplying such vacancy or vactinoios by a person or persons who are proprietors in communion with the said church. Section 8 provides for the t on the exi)ress condition of the pew proprietors })i>inuf approved of by the Trustees, and .subscribing' to th«' IJy-laws. Any i)roprietor who does not pay the annual rent fixed on his pew, agreeably to his deed, for the space of two y( irs, sluill be considered as having forfeited his pew in the church, and after notice, the Trustees may sell the same to the highest bidder, and the 'proceeds of the same shall ])e applied to pay the rent due, and the surplus shall be i)aid to the last proprietor. Article 10. — Any member who shall lease a i)ew from the Trustees for one year, and ])ay the rent in advam^e, shall l)e considered a pew holder. The rents of pews and sittings are to be jmid annually in advance, from the 1st day of January, and are to be considered then due. The current year is included where in the By-la. "^s it is stated as a qualification that the individuals must have paid rent for three years, and are members of three years' standing, &c. Article 11. — The Trustees are empowered to sell all pews in possession of the church, at such times and upset l>rices as they may decide on, but not for a less sum than two years of the fixed rent amounts to, and subject to an annual rent over and beside the purchase money, and all deeds granted, shall contain a clause that the annual rents may ])e augmented or increased by the Trustees, according as they may deem the wants of the congregation require; they having obtained the sanction of two-thirds of proprietors of pews of at least one full year in possession, not in arrear of rent, at the time residing within the Parish of Montreal. Article 12. — The congregation in the By- law implies the proprietors of pews, pewholders, members in full communion with the church, and regular sitters whose names are entered in the ciiurch books, collectively. Aricle 13. — The term church in the By-laws, referring to persons, comprehends those members of th(^ congregation, collectively, who are in full communion. Article 15. — The Trustees are to enter in a book to 4 fii •it 4 w^ < ,'M I' I fir i'l «<' M.\ *V . ij f 1:1 k, ho k«'pt lor thiit purpose, tho narnoH, Uie iiiim«'S of Iho proprietors of p('W8, pi'\vhold«»r.s and sitters; where more than one indivi- dual rents a pew ih(^y shall jj-iv ^ tlioir nauu^s to the Trustees, that they may 1)0 entered on the roll of the coni^ren-ation. Article 14. — The Trustees previous to the election a Tru8te«% or the election of eommiltees for selectin*^ a minister, shall make out lists or rolls of the proprietors and memhers qualilled to he trustees or to vote on the eltM'tion of Trustees or memhers of committee's for thf selection of a minister or to vote in the election of sucli committees. In the view I take of this case it will not he necessary to con- sider, or expre.ss any opinion on, the unfortunate differences thai have occurred between the Plaintifl' and the congregation of St Andrew's Church. The right of a pewholder to a seat in a parish church in England and Siotland being based on the iact, that the nation assumes to ])rovide for the spiritual instruction of the people, cannot be asserted in relation to the members of religious congregations in this country, which have none of the rights of esta])lished churches, and must be regarded as voluntary associations. The right to a pew in a church must be considered in the nature of an easement. The proprietor for tht^ time ))eing has a right to occupy it at meetings of the congregations for religious purpo.ses, but he could not destroy it or erect beneath it a cellar or place ol" deposit for goods, or use it for like purpose. His rights being of a limited character may be subject to modifu^ation which would not attach to other interests coming out of lands. The fee simple in the i)roperty on this as in most of the churches in this country, is vested in the Trustees, whether under the name of Trustees or minister and churchwardens, and they hold according to various rights declared by the conveyances to them, or the acts of the Legislature incorporating them. The Plaintid", though, occupied a pew in the church for several years, and occupied one in 18G9, described as " area pew No. OS in 8t. Andrew's Church, Beaver Hall." The rent for the year was $75. He took the pew in dispute and began to occupy it in January 1872, and obtained a receipt for the rent dated the 9th 61 >priotors ' iiulivi- jos, that •1.' 14.-- •ction (>r or rolls r to vote for the of such '■ to COll- coN thai .11 of St a pari.sh ict, that ction of ibers of e of tho >luntary ^ nature right to Lirposos. lace ol" )t'ini>* ol' would simple ountry, stoos or various of th(^ several No. 08 10 year y it ill he 9th January 1H7-, Plaintill produeedand travo it in evid''n('e, it roads : •' Iveccived from .luines Johnston the sum of sixty-six ,';,;, Dollars, lieiny for rent of lirst class pew No. OS, in St. Aiidn-ws Church, IJeaver Hall, for the year 1H72. For the Trustees, J. Clements." 1 iider the My-laws the rents ar»> to he paid annually in advance, that taken in connection with the receipt shows that this let tiny was at all events for one year certain. Mr. Justite Sanhorn in his judgment says: " If this is a lease it is not one which falls " within the application of article 1057, C. C. It is not su«h a verbal • lease as is contemplated by that article. It is the uncertainty of •' the term of the lease which necessitates the three months notice •' to termiiuite it. This was fully discussed and determined as in " the case of Webster vn. Lamontagne decided in this Court in 1H74, " In this case there was no tacit renewal. The p»'w No. 68 had " only })een leased in 1872, and the rent was paid in advance, and •' a receipt taken specifying the rent for one year. This was in •' conformity with the By-laws, and Appellant as a party interested ' must have been presumed to have known it without such receipt. " Before the expiration of the year liespondents notitied Ai)pellant " that they would not lease him a pew for the next year. This was " (piite suihcient if it were treated as an ordinary lease to pri'vent a • contract of tacite reconduction" I don't understand that any of the learned judges before whom the case came thought the article 10')7of the code applied, nor do they think, as I understand their judgments that their w^as a Incite reconduction. The Plaintitrs right must then be based on the simple ground that he had a right to have a lease for the year 1873 of the pew No. 08, he being willing to pay the rent in advance for it. If we were to decide he was entitled to three months' notice to terminate the lease because it was a verbal one I apprehend this would not be satis- factory to the Appellant, or to those who contend that the holders of pews have the right to a renewal of their leases from year to year on payment of the rent suggested. If this be the correct view, all the Trustees would recpiire to do to terminate the lease would be to give three months' notice a<'ccording to article 1057, and there would be no diliicnlty and necessity of presumed or added con- ditions to the leases or licenses to occoupy. It is not contended 'V.1 i-A T" ■1/ U i'. 11 I 52 there is any express provision in the statute or By-hiws giving' the right to pewholders not proprietors, to hive a renewal of their leases, as they are called, and that right mi.st be implied from the nature of the interest which the pewholders have as members of the church or from usage. As I have already intimat«'d 1 do not think thore can be any analogy drawn from the right to occupy seats in the parish churches in Scotland, the right to a seat being based on a dill'crent prir.niple there, — there are no pew^ rents, as such, and the minister being supported from other sources, whilst in St. Andrew's Church the rents of pews are appropriated to the payment of the Minister's stipend. The right of proprietors seem to be dclined by theSiiitute, and by By-laws adopted by the Corporation under the Statute. They alone can vot,^ for Trustees. In selecting a committee of nine for the purpose of choosing a minister, six of the number must be proprietors, eve^y person haivng purchased a pew in the church, having i)aid for the same and who shall ]>roduce a deed duly executed by th'» Trustees as a proprietor and entitled to the privileges of a proprietor as spe(nfied by the By-law. Proprietors not in arrears of rent may transfer their pews by sale, gifi or will, but no transfer to be valid excejit on the exj/ress condition of the new proprietors being' approved by the Trustees. A proprietor who refuses or neglects to pay the annual rent lixed on his pew agreeably to the deed for two years, shall forfeit his pi^w, and the trustees having given two weeks noti i3 of the forfeiture may sell the pew to the highest bidder provided the bidder be approved by the Trustees. The proceeds of sale to be applied to the payment of the rent, and any surplus to be paid to the last proprietor. 1 think we may fairly assume that it was not iniended that pew-holders should have greater privileges than proprietors. There is nothing in the By-laws or Act of Incorporation giving them the right to continue to hold a pew beyond the year for which it is leased — -nothing said about their being entitled to a lenewal of the lease of a pew — though reference is made to pew- holders who have paid rent for three years. Suppose a pew- holder neglects to pay his rent, can he continue to hold his pew ^ If not, how is he to be disposessed of it ? and when ? Is he to 53 viiig the of thoiv from tlic mhors of 1 do not ' occupy at ])oiiig rents, as 'S, whilst riated to opriotors ^dby the trustees. 30sing a T person he same itees as a jpecified transfer id exrejd d by the annnal rs, shall s noti e rovided f sale to be paid ed that Drietors. givinu' 'ear for ed to a to pew- a pew- s pew :* Js he to have a reasonable time after the end of the yeai to pay the rent for the next year, which is payabh' in advance, and in the mean- time is he a pew-holder ^ And is 'he pew to be considered in his possession ? Or is the pew in the possession of the Trustees ? Wh'^n is it considered to be in the possession of the Trustees, that they may sell it if they think proper ? No provision is made as to these matters by the By-laws. If the pew-holder has this ri.ght of his own mere will, to continue to occupy the pew for an indefinite period, the Trustees would be very much embarrassed in carrying on the affairs of the Corporation. It might be for the interest of the Corporatiou to sell the pews that had been leased, and yet if the pew-holder claimed to have his lease renewed from time to time, this would create ditficulty. It might be necessary to raise the rents in order to pay the stipend of the minister, yet no provision is made for that purpose, as far as the pew-holders are concerned ; but when the pews are sold the deeds are to contain a clause that the annual rents may be augmented or decreased by the Trustees, according as they may deem the wants of the congregation require, first obtaining the sanction of two-thirds of the proprietors of pews, of at least a year in possession, and not in arrear of rent, residing within the parish of Montreal. There are other alterations as to the occupation of seats, that the change of time and circumstances might render it desirable to make, such as making the seats free, in relation to which this perpetual right of renewal (if I may use the term) of pew-holders would very much embarrass the management of the church. Suppose the pewdiolder paying the pew rent regularly, and not joining any other congregation, very seldom, if ever, attended church ; must the Trustees continue to let him have the pew, when there were other persons desirous of obtaining it, who would occupy it constantly ? If it be con- sidered that the pews are let for a year, and the Trustees re-let for each year, then none of these difficulties will arise. When- ever circumstances require a change in the mode of letting or occupying the pews, or the increase or diminution of the rent, such changes may be made at any time after the end of the year for which the leases are current. It is not to be presumed that •m-' * !, ^! ^.1 . i w li<: I '11 Ui ;1 1 3 liiii 11 54 ihis power will be exercised capriciously, or to th(^ ])rojudi>G of the conn-regation worshipping in tho church. Tho most lavcured parties in the congregation are sul)ject to the exercise of this discretion of the Trustees, as to whom they may seL their pews. AVhen sellinn' their pews, they can exercise their discretion as to whom they will sell them, and I see no reason why they should not exercise that discretion as to whom they may lease pews. By giving to the pew-holders the riuht which the leasing of the pew and paying of the rent for on*; year secures to them, you leave the Trustees free to act as may be considered advantageous for the benelit of the congregation. Any reasonable or necessary changes may be made at the end of the year, when each pew- holder has had what he has bargained and paid for — the use of the pew for the year. In this view no dilliculty could arise ; no discussions, whether what was about to be done was reasonable or done at a reasonable time, in a reasonable manner ; and no law-suits or unpleasant litigation, bringing the matters of the congregation before the Courts. These domestic affairs would be settled in their own forum, and in a more seemly manner than by legal proceedings, which produce discontent, anger, and ill-feeling. If the right to a lease for another year had been claimed by a pew^-holder the next year after the By-law had been passed, and the Trustees had refused to grant it, I am satisfied it would have been held, that there was no doubt that the pew-holder having leased the pew for one year, and paid his rent for that period, and having obtained the receipt, could not claim as a right to have the same pew granted to him for another year at the same rent without the consent of the Trustees. If that would have been the effect then, why should the Appellant, who must be held as to this ])articular pew, to have taken it for the year 1872 (he not holding it for 1871), be considered entitled to claim the lease of it as a right for 1873 ? I can see no satisfactory reason why it should be so held. It is argued, however, because pew-holders for the last 25 years or more in St. Andrew's Church have had their leases renewed, therefore it must be conceded as a right. No doubt usage is a strong point to take in these matters, but but 65 whon tho usag-e may be accounted for quite consistiMitly with the claim of rii^ht.set up, and when it has not beiMi excrcist'd in a man- lun- to show it has biHMi chiimed and admitted as of ris^ht, you may show facts and circumstances which wouhl prove that tho riiiht claimed by the pcw-holdcrs could not have been intended to be uranted to them, by showini'' how carefully tln^ riu'hts of the Trustees havo been guarded in relation to " projn'ietors ;" and if the rights now chumed l)y the pew-holders had been intended to be granted to them, more minute provisions woukl have been made as to *Miforcing' the rights of Ihe Trustees against them, and matters would not have been left in sucli a chaotic state as it appears to me they would be in, if the views contended for by the Appellant are allowed to prevail. The fact that the congregation worshipping at St. Andrew's Church for more than 25 years past, have acted harmoniously, and been so united that the Trustees have not had occasion to refu.se to renew the lease of a pew to any pew-holder who desired it, does not, to my mind, j)rove that it was because the pew-holders had a right to claim this renewal as of right, but shews that the Trustees, acting as reasonable men, did what they thought was right for the interest of the congrega- tion and what was likely to ensure harmony. It is possible this may go on now for another quarter of a century or more without having any difficulty. It is only when the exigency exists making it necessary to exercise the right to refuse to let a pewholder have, for another year, a pew which he has occupied perhaps for several years, that the rio-ht of the Trustees to nduse becomes known to the con- gregation in such a way as to attract attention. The giving the right to occupy for another year, each year, through the receipt given for the rent, it is not all inconsistent with exercising the right to refuse to continue giving such right. It was necessary they should rent the pews to raise the revenue to pay the stipend of the minister ; and the fact that the occupant of the pew wanted it for another year, and was willing to pay the rent, was a reason v/hy they should let him have it. It was not necessary or desira- able merely to show their right to refuse to let for another year that they should capriciously annoy pew-holders by refusing to renew ;ji;: 4-.;,;' w 56 'Vi ,1 I .1: i| I! Ill tho lettiiiQ^ of thom. I do not think it is contended that th(> Trustees could compel a pew-holder to continue to hold the pew after the end of the year, though they might wish to do so, and though they may have refused to let it to another applicant, anti- cipating that the former holder would continue to occupy it. It seems to me that the doctrines contended for by the Appellant would give many important rights, options and privileges to the pew-holder without corresponding obligations, and cast burdens and restraints on the Trustees which they never undertook to submit to, and which it is not for the interests of the congregation they should bear. Giving to the pew holder the right to occupy the pew for the year for which he, bargained and paid, he has what in my judgment it was intended he should have, and you have the Trustees free to manage the business of the congregation entrusted to their care, in the manner which may be best calcu- lated to further the objects for which the Respondents were incor- porated. This view would settle the rights of the parties on intelligible legal grounds. In the evidence of one of the clergy- men called for Appellant, it was stated that they had not legislated on the subject of the rights of parties to pews, and therefore they must be governed by the principles of the Church of Scotland. The Church of Scotland lays down the rule that every man in the parish has rights in the parish church, and unless he makes him- self offensive to the church his rights cannot be interfered with. It is founded on the parochial system. If a person were to apply for admittance into a Presbyterian Church, and were notoriously objectionable, yet if he profess adherence to the principles of the Church of Scotland, the Trustees would be bound to give him a pew if they had one at their disposal. The Rev. Mr, Lang, the minister in charge said : — There is a time at the end of each year when all the pews in the church virtually revert to the Trustees ; that does not include the pews owned by proprietors. One of the Trustees said : — .The Trustees have always contended that the pews are rented from year to year, and that the lease of each pew ends with the year, and can only be renewed with the consent of the Trustees either tacit or expressed. He has known cases in which parties have grumbled on being deprived i^ 57 of thoir pe\N s in that way. The notice of the Annual Meotino- intimates that the Trustees or their representatives will be on hand to lease the pews of the church. It was customary to con- tinue tenant in his pew as lon^- as he pays rent regularly. The Trustees consider they have a sort of discretion in regard to the letting of pews, " our right has never been questioned before, that I know of, to refuse a pew-holder a pew." Another minister, speaking of the church in which ho is the minister, says : — The Managers (in his church) have duties very similar to the Trustees in St. Andrew's Church. The Managers have the sole power over the pews, and can let them to whom- soever they please. As I understand it, the Managers have the power to eject a member from his pew. T have no doubt of it. Many members of the congregation stated the custom to be, that you paid the rent and you were supposed to keep possession of your pew; the receipt given was the rent for the year.' Some said they understood that any person paying his pew rent, got his pew on paying from year to year. The pews are continued by the payment of the rent in advance. There seems to be no doubt that the Trustees have exercised the discretion sa far as to refuse to continue single letting in pews, when a pew was wanted for a family. The pew occupied by Appellant in 1871 was owned by Mr. Mackenzie, who sold it. and Appellant wanted Trustees to refuse to approve of the sale ; they, however, declined doing so, but compelled the young men who had sit- tings No. 68 to leave that seat in order to give it to Appellant. I understand these young men had paid for the lettings just as the pew-holders paid for their pews, but when the occasion, in their discretion, called for the exercise of the right to refuse to renew the letting of the seat, the Trustees exercised it. "When the neces- sity, as in this case, for the exercise of theirrighttorefu.se to renew the letting of a pew arose, they, in their discretion, exercised it, and refused to renew^ the letting of their pew to Appellant ; and as already intimated, I think they had the right to do so. I have not been able to see all the cases and authorities cited on the argument to show that the right to refuse a member of a religious society a seat in a church belonging to the body, is one whicbi i m \\ ,4* (' '■! .If f '^: V i; ' JiN '^ •It.. 1: 4 ; . f!- rift; I ' 1 1 !1 I 68 rosts with thn conjrregMtioii alone, and that tho oxorcisi^ of their discretion will not be reviewed by legal tribunals. Many of the decided cases to go to the full extent contended lor. As I do not consider it )iece.ssary 1o go into that ([uestion in deciding this case, I express no decided opinion on it. I consider that the riaintifFliere claims that ho had a right to the pew in question; and in the view I take of the law, he had not such right under the act incorporaling D«'fendants and their By-laws, and therefore his action fails, and this appeal should be dismissed. NoTK. — llis Lfinlsliip 'J'lie Ilonoiiiiililc Mr. Justice llitchicncxt expressed his iva.sons and opinions. TIrkc aio inserted iniracdialely after the reniiirlvs of His Lordship The Honouriible Mr. Justice Henry. REASONS AND OriNIONS OF HIS LORDSHIP THE HONOURABLE MR. JUSTICE STRONG: Strong, J. (dissenting) : — This action is, as I read the declara- tion, brought to recover damages for disturbing the riaintilf in his enjoyment of pew No. 08 in St. Andrew's Church in the city ot Montreal. It is conlined to the w^rong alleged to have been done to the Plaintifl in respect of this particular pew, and does not mak(> the case that Plaintiff was illegally excluded from the church altogether ; and if it had made such a case, the evidence clearly w^ould not have supported that pretention. It becomes material then to ascertain, in the first place, what was the Plain- tiffs title to this pew 68 at the time of the disturbance of Plaintiff's possession in the month of January, 1873. The opinion I have formed, after consulting all the authorities cited in the factums and at the Bar, and several others, is that the contract entered into between the Plaintiff and the Defend- ants, the Trustees, under which the Plaintiff occupied this pew No. QS during the year 1872, was a verbal lease^-a character which the Plaintiff himself attributes to it in his declaration. The Plaintiff then proves a title precisely as he alleges it in his •declaration to this pew, as a lessee for the year ending on the 31st '■'i » 59 December, 1872, under a verbal contract with the Defendants, at a rental ol' $6(5.50. By the law of the Province of Quebec, in accordance with the modern and aneient French law, a lease for a short time, less than nine years — Mitirely unlike such a contract in ]']nglish law — gives no right of property lo the lessee, but con- stitutes merely a p»^r,sonal contract between the parties. There is, therefore, much less dilliculty than in the casi^ of a similar contract governed by the law of England, in holding that the right o! use of a pmv, which involves no interest in the property in th church, or in the pew itself, may be made the subject of a l(»ase. The absolute sale of a right to use a pew has been held in England to confer no right of propi^rty in the soil, but merely a right in the nature of an easement or servitude, though of course not an easement or servitude proper. — (Hinde vs Charlton L. R. ; 2 C ; p. 104.) Article 1600 of the Civil Code of Lower Canada contains a pro- vision not in terms expressed in the Code Napoleon, though it appears to be universally considered as the law of France also : — " Incorporeal things may be leased or hired except such as are '' inseparably attached to the person. If attached to a corporeal " thing, as a right of servitude they can only be leased with such " thing." There seems, then, no reason why a contract conferring the right to use a pew in the manner in which such property is generally used, namely, by occupancy during divine service, should not be as much a lease as the right to work a mine or quarry, or the right conferred by contract on a particular person, not amounting to a servitude, in favour of another property, to use a riffht of way or passage. In all these cases I find several of the commentators on the Code Napoleon treating the contract as a lease. Marcade, on Article 1713 of the Code Civil, at p. 431 (6th edition) says :— " On " ne loue pas une eglise, un cimitiere, une place publique, une " grande route, un fleuve, mais on loue trcs bien des places dans " une eglise, des emplacements d'etalages de marchands sur la " voie publique, le droit de recolter les fruits et I'herbe d'un " cimitiere, le droit de peche dans un fleuve, &c." Other authorities are to be found to the same effect. I can see m I M W'k 00 )■ J I!' ■j;^ Mil'' 'ill P 1 ■i 1 i 1 1 i|* I !: Iheroforo, no obj«»ctioii to aitributiiii^ to the contract which the Plaintill' enten'd into, Ibr the occupancy of the pew for the yeur 1872, the; denomination and character of a lease as the Plaintilf himself has done. Then if it is a lease, one of the learned counsel for the Appel- lant, Mr. K(»rr, whilst he concedes that the notice of 7th Decem- ber made tacile reconduction impossible, mak«>s Article 1657 of the Civil Code (L. C), which he says must apply to all verbal leases, whether made for fixed and certain term or not. According to the strict letter of Article 1657, three months' notice would be in all cases necessary to put an end to a verbal lease, even though it should be proved or admitted (as in the present case) to have been for a term certain. This Article 1657 is almost" identical with Article 1736 of the French Code, which only differs in requiring notice to be given, according to the custom of the place, instead of fixing an inviri- able^delay of three months; and the Commissioners cf the Code in their Report (4th Report, p. 29), say of the Article that " it is " based partly upon Article 1736, C. N., but goes beyond it in " specifying the delay of the notice required to be given." Then, the commentators seem to be all of accord that the Article 1736 was inaccurately drawn, and that notice was only necessary in the case of a verbal lease for an uncertain term, and consequently where the duration of the lease is ascertained, though the contract may be verbal, the Article does not apply. Marcad^, after dis- cussing this Article, comes to this conclusion : — " II faut done " dire que le conge sera ou non sera necessaire, selon que la con- " vention (ecrite ou verbale, peu importe) laisse ou non, indefinie " la duree du bail." — (Vol. 6, p. 481. See also Duvergier 1, p. 485 ; Duranton 1, p. 116 ; Troplong 2, 404 ; Zacharice 3, p. 23, and Demante 7.) This, I gather from the judgment of Mr. Justice Sanborn, was also discussed and decided in the case of Webster v. Lamontagne, though the report of that case in the Lower Canada Jurist does not show that very clearly. The lease was, of course, subject to the requirements as to proof of Article 1233, and as the rental w^as upw^ards of $50 it could not have been established by the 61 testimony of witiiGssos; all dillicully on this hoail is, howovcr, HMnovi'd by tho clear adiiiissiou oi' the Phiiutiif". Moreover, the receipt oi' the 0th January, 1872, thoutrh not of itself a lease, would b;» a written evidence of it, at all events a good com- mencement of proof. The consequence is that the lease came to an end, without any notice, on the 31st December, IH72, at which date, in my opinion, the Piaintilf ceased to have any legal right to occui)y the pew No. 08. The riaintilF seems to have con- sidered himsi'lf, that his right terminated at the end of the year, for, as Mr. Justice Monk points out, his tenders of the rent for 1873 implied a recognition by him of the necessity for a ncnv lease on which to found his title to the continued occupancy of the pew. Nothing is to be found in the Act of Incorporation, or in the liy-laws made pursuant to it, giving colour to the conten- tion that a contract for the lease of a pew for a year shall be construed not to m. an what the parties agreed to, but shall ])e intended to be a lease for an indeterminate period, possibly to the loss of the lessee. Then, with reference to the usage applicable to th(5 holders of pews in the Roman Catholic Churches in Lower Canada, upon which the judgment of the learned Chief Justice of the Court of Queen's Bench proceeds, I would venture, with great deference to an authority of so much weight, to suggest that in the cases to which the Chief Justice refers, the lefse of the pew being in- determinate as to duration, custom has provided for that, on which the parties have been silent, and has annexed to the con- tract the term that the lessee shall have the occupation of it as long as he resides in the parish, but I do not understand iVom the statement of the law which the Chief Justice gives in his judgment, that the Visage would override the express contract of the parties, and that in a case like the present, where there was a lease of a pev\' for a year certain, this usage would entitle the lessee to insist on a right of occupancy as long as he remained a parishioner. Moreover, I should doubt, though on this point I hesitate to express an opinion, whether the rules applicable to the parish churches in Lower Canada would apply at all to the congregation of a voluntary religious body, regulated by an Act V I ■ i. i (i2 «: ifll'i ^» [ I % '' ' ^ i' * 111 '■it !'• h ol' Parliaiiuint simihir to that which Ibrins the organic law of the Uespoiidonts' corporation. As to the hiw applicable in Scotland to pews in churchoN ))»>- lon];^in^ to the EKtablishcd Cluirch there, I lind no reference to that law or iisap^o either in the Act ol" Parliament or in the By- laws, and 1 am at a loss to understand any princi])le on which customs i)revalent in Scotland can l>e imported into this contract of lease, in such a manner as to overrule the express agreement of the parties. If it could be shown thiit these rules as to the occupation of pows in churches of the Scotch Establishment, had been expressly or by implication adopted by the Corporation of St. Andrew's Church, they would, of course, have an important })earing, and the law of Scotland might be made applicable, but there is no evidence to show any such adoption, and, therefore, the rights of pew-holders in this church are to be assimilated rather to those of other voluntary religious associations than to those of pew-holders in Scotland This is the principle enunci- ated in the two cases of Long vs. Bishop of Cape Town, 9 L. J. r. 8, 1869, and Re Bishop of Natal, 11 L. J. (> ), p. 353, and it is one which is entirely applicable to the present case. Then it has been argued that some usage or custom not to disturb a pew- holding lessee in the occupation of his pew, has existed within St. Andrew's Church itself. Some testimony has been given by witnesses who rather state their own opinions on the subject than prove the fact of such a usage, which is, of course, not the proper way to prove a custom. Moreover,what these witnesses speak of,as to this usage of continuing leases is to be referred rather to courtesy and good feeling than to right, so that even if it were admissible to aiiect the rights of the parties in this way, the evidence w^ould fall very far short of establishing any binding custom. But surely as matter of law it is out of the qm-stion to say that a lease having been made for a lixed term of one year, such a lease can be prolonged indefinitely by the proof of any usage or cus- tom. Articles 1017 and 1024 of the Civil Code of L. C, which correspond respectively to Articles 1160 and 1135 of the French Code, certainly do provide for a reference to usage in the inter- pretation of contracts. Article 1017 provides : " The customary (];? •' clttUKOM must 1k' Nuppliocl ill coiitnicts, ftltliontyh thoy bo not " exproHscd." And Article 1024: " The o))li;^nition of a contract " extonds not only to what is expressed in it, but also to all the " conse(juence« wlii«h,by equity, usacce or law, are incidi'Ut to the " contract accordiui;- lo its nature." Ihit these articles only moan that all natnriil incidents and consequenct's llovviii'^' I'rom the ox- l>ressed ai^-reoment of the i)arlies may be added to it by proolof usa«,'-e. It is not meant that the express dispositions ol" the par- ties may b(» overruled or extended ])y usa^e. President Larombiore, in his commentary on Article 1100 (correspoii ling- to 1017) states this very decisively. \h> says (Larombiere : Obliijations, vol. 1, p. <)20 ;) " Mais uni((uenn'nt dos- " tine a suppleer le silence du contrat, Tusajji-e no pout pn''valoir " contre les dispositions «'xpresses des parties, ni contre les dis- •' positions Ibrnielles do lu loi. Celles-ci commandeiit, colles-l;\ " deroj^ent, et tous deux retirent a I'usage uno puissance qu'il " ne pent et ne doit exercer qu'en Tabsonce d'un texto explicito " de la loi ou d'une clause d»'Togatoire des contractants." I con- sider it just as much beyond the power of the riaintilFto control or add anything inconsistent to the terms of the lease, as it, in- stead of it having been made verbally, it had been made in the most solemn and authentic manner known to the law, a notarial instrument, in which the contract of the parties was recorded for a lease for one year and wo lonfj^er. Surely, in that case, violence could not be done to the agreement of the parties ])y any evidence of usage or custom, however clear and decisive. lieferring to the authorities on English law, the rule as to an- nexing incidents to mercantile contracts or leases, bv evidence of custom or usage, is governed in that jurisprudence by principles precisely similar lo thosi^ I have mentioiu'd. 1. Leake on Con- tracts, pp. 111-115; Webb and Plummice, 2 15. cS: Aid. 74G ; Clarke vs. Royst(me, 1-^ M t*t W., 752. If the Res])ondents had a right to take possession of the pew, their manner of exercising that right, provided they were guilty of no excess, cannot be called in question. This is in accordance with a well-known rule of law, which I ai)i)r(>hend linds a place in all systems of ju- \ 04 llV lip !' i. ri8pru(l(Mi(Mv Nemo damnum farit niu qui iil farit, quod farere ju» tiisi hnhet. — (Dii;": do Ufg : .lur: L., 151.) Tlit'i't' can thordoro 1)« no onquirv quo animo a party. oxcrciNcs his undoubtiul rii;'hl. At all t-vonts, this is tlm law of England (Williams' NotoH to Saunders, pp. IH, ID), and I lind the law laid down in ])r(>cist!ly tho same terms in a reported decision oF the Court oi' Queen's Bench lor Lower Canada — David vs. Thonuis. 1. L. C. Jurist, p. 01). I think the api)eal should ))i' dismissed with costs. Itjl I 1 ■'! III it 'ti n ! ...I! REASONS AND OriNlONS OF HIS LORDSHIP THE H0N0URAI5LE MR. JUSTICE TASCHEREAU : TAS('ni-:uEA.u, J. : — The Api>ellant, as a mem])er oi' tlie congrega- tion of St. Andrew's Church, Montreal, brought against the Res- pondents, in the Superior Court in that city, an action upon the <^'ase, complaining of their refusal to allow him to continue, in 1873, in the peaeeful occupation of a certain pew, known as No. 68, in the church above mentioned. He alleges in his declar- ation that from the year 1807 to 1873 he was It^s.see of that pew from the Respondents, at a yearly rent of $00.50, whieh sum he paid them regularly, and that he thus became and was a pew-holder, under the 10th By-law in the A(^t of Incorporation of Defendants, and amendments. That his holding of pew No. 68 for the year 1872 was bt/ verbal lease. He further alleges that on the 7th December, 1872, he received from Res- pondents a notice that they declined to re-let him a pew for the year commencing the 1st day of January, 1873, which notice was in the following words, to wit : — " IVIoNTREAL, 7th December, 1872. "Extract from the minutes of meeting of the Trustees of St. " Andrew's Church, held in the Vestry on Saturday, the 7th *' Dec. inst. It was resolved : '' That in order to sustain the action of the congregation, taken *' in regard to Mr. James Johnston at its meeting on the evening taken rening • of the 4th Novt'iribt-r last, tho Trn.stceN do now dmlint' lo l«t "a pt'W to Mr. Jiiuu's .Tolinstoii lor the fusuino- yem-. " CarvitMl, — ^Ir. A. niintiii dissciitiii^-. "(Si!i-H<'(l) .lAMIvS W.VllDLOW, " St. .Aiidrt'w'H Church, " St'iTctary. ''To JanicM Johnston, lCs(j., Montn'ul." Tho Appellant :ill<'u*('s, also, that on ri'iH'i villi;* this notice lie ^vrot•» a IVitMidly letter to Uespoiidents, sayinu' that ho was anxious to continue tho h'aso of his pew for another year, and that, on l)eini;" inlbrnuHl that they would not let him a i>ew, he caused a h'u^al teiulor oi' $0»).50 to 1)0 niado to Uospondents on or about liOth December, 1S7-, as rental lor the year commencin<^ 1st January, IS'-"), which teiubM- was refused by liespondents, who iurtlier refused to let him a pew for any sum. lie allei^cs that thi.s was followed by a notarial protest of the same date, and by another on the iirst juridical day of January, 1873, with a renewal of tender, wliich was refused ])y Respondents, with a declaration that they would not let the said pew, or any other pew, to the Api)ellant He alleiivs, further, that notwithstanding- said refusal, as an elder and a member of Session of th(» church, he was prestnit at Divine Service on the iirst day of January, 1873, and occupied the i)ew in ([uestion, and continued to occupy it during the iirst ten days of January, without objection or interfen'iice by or on the part of the Ivespoiub'iits, and that he thus became the leual lessee of i)ew G'S for the yi'ar 1873, ])y tacit renewal {lactic rccondnclion). He then states that subsec(ueutly to the 10th January, 1873, he was molested by Uespondents in the occupation of his pew to such an extent that Appellnt's family wa.s driven from attendance at Divine Service in said church, and that he had to put up with the presence of strangers in his pew, seated there by order of the Uespondents. That Respondents had his cushions aiul l)ooks removed Irom the pew, and put and pasted in his pew phicards with the words "For Stranrers " printed thereon, and, in fact, 11 ■RP w. ■ t ?:,'■■ Bi. h ''1 ■i 1 *itii Ill*',; 1 :1h by Kovoral otlicr acts that tb<'y treatod Apjx'llaiit as liavini^- iio rig-ht to th(» occupation of 'he pew, j.nd did, in lact, act wiili intent to In-ing the A])i)ollan< into contempt and ridicule, and to j'orcc him to leave the ch\irch, to his damage ol' 810,000, The ]fesi)ondcnts pleaded that Ai)pellant was no hnis^cr m pew-hold<'r alter the 'nst December, li^T-, alleu-i)!!*- their riuht to reluse lo 1 ase a i)ew to Ai)pellant, and that accordiiur to the By-laws of Ihe churcli they were undi'r I'O obligation to continue the lease, and moreover, that they were justilled in so doing by a desire for the preservation of peace, and that they acted in good faith. The facts proved in tli(» casi' justify tlie averments of Ai)pel- lanl's Declaration, and, moreover, establish that thi^^'spondents are a corporate body by ^ irtue of Chaj). 1')4, 12 Vict., which grants th<'m the property, the administration of the temporalities of the church, for th(^ use and advantaue of the congregation Now, it api)ears that in the ye-'.r 1872, the Aj>pellant gave olience to certain members of the congregation. lie was then requested to "etire from the eldership, and. havinu' refused, the several resolutions al>ove alluded to were passed, and, as the result of his grievances, the A[)pellant In-ought the present action. lie has been unfortu.iate in tlu^ Superior Court, and on apjieal to the Court of Quoeu's Bench, the Court, by a majority of one out of five Judgep.'^has conlirmed the judgment which dismissed his action. I must here admit that the recei[>t for the rent constitutes a lease of that ])ew for the yt»ar commencinu" 1st January, 1872, and ending 31st December, 1872. Such a lease, under general terms, would terminate with the year, and a tariff reconduction could not lor a moment be inferred, according to Article l()-">7 of Civil Code : but I am of opinion that the rule of law ai)i)licable, accordinu' lo our Civil Code, to a lease of an immoveable property, is not applicable to a lease of a pew^ The Appellant contends that according to the rules of ihe church, beini^' a member of the conu'regation and an elder, he was entitled each year to th.' lease of a pew on payment of the yearly rent, and could not bi' deprived of that right without a fair trial by a competent tribunal, not comi)osed of pruvticalIy doiiics, l>ut oi the Kirk Session. I adopt in this cause this view of lli<' vVppol- hxut. It is uudeniahle that accordint-'to tho usaaool' that «hurch, a member oiut* a k'ssee oi' a pi'W can eoiitiuue to hold il hv i)av- inmaiuiiiii- a niem])er of the eliurdi. unless h" be fTuilty of immoral beluivioiir. aiul in that case tht^ uu'inb -r can only be deprived of his pew by the Kirk Session. They alon.' were entitled to pass a vote oi' censure ai^f'ainst the Appelhmt and settle the dillieulty. Moreover, tho Respondents are mere Trustees, to he compared to j)ro;-urators and a«^ents with th;' very limited powers u'iv.'ii to them by the Constitution and Bydaws ol" the church,— and nowhere can I find such extraoidinary powers as those (daimed by the Respondents as Trustees. The M*.h Article of the Bydaws. read in connection with the i»th Article, clearly shews that once lesst'e of a i)evv. a nuMuber of th" coneginning, lis fault was certainly more than com- pmsated and atoned for, by the petty annoyance h' was subjected to on the pirt of th ' Trust-es. and" sp 'ciully by the unfair and illegal resolution to dcpri -,' him of th ' rio-ht to a pew. Havinu- no authority, in th ' cai):t -ity m wliich th 'v act >d, to rel'us • t<. redet p'w No. <;s, or any othn- j) 'w. whidi was tantamount to an excommunication from his church the conduct and lan- guage of the Trustees towards a man of .haraeter and eneiu-y must have been very oii'envive, ami of a miture to wound his feelings. I am disposed vo allow the ai)peal. lant r.'ut and remained i say that AppeJ- was entitled to his ]> "w, and could not be deprived of It in th a memb '!• ot e cornoi ation, unless he b.^ expelled by the Kirk Session 1 would allow him $800 damauvs for the ill treatment and .«■■' f ■ A vexa- I'i* ;i It; m tions lu> lias boon .subjected to, by the conduct of the lu'spoiidents, widi full costs in all the CV)Uits. p r 'A "•*; m UEMARKS AND OPINIOXS OF HIS LOHDSIIIP Tll'S. IIONUUKABLE MR. JUSTICE FOIKNIEU: FoUR.VlKR.T.: — L'Appi'lanta. dopuisranueclKO", jus(|u'a Tan nee 18'i 2, inclusiveiiienl, contiiiuellemcni occu])e uu ])anc dans I'J^lu-hse St. Andre (h> Montreal. En iSTi', il occupait h''i>'aloment lo ])ane X..>. G>, e.'unn ' niembre de cotte congTce-ation, en vertu (Viw l)ail verl)al (|ui lui avait eie consenti par h's Intimcs a rai.son do $t)G..jO par aniiee, jKiyable d'avane(^ suivant les rcghMUiMits adopte.s j^our Ui rei>-ie des all'aires de (•■■ite conu'reu-ation et I'acte do 12 Viet. ("h. 1 ")4 ; (|ui I'a eriu'e e.i corporation. La quahte de locataire de l)ane (pew hohlers) liiidnnne cii vertu de TarticU^ 12 de ces reirlc- jnents tou^ les droits et privile-i'.'S appartenant> aux locataires de bancs ('))e\v holders), suivant la eonstilution, les reghuneiits, la pratique, et les coutumes de TELj-lise St, Andje depuis son ctabli.s- .seinent. En 1871. rAnpelant fut elu un des dllieiers spirituels (tdder) et oceupa cette ])osition jus(|u"a I'epoqiu' dn 'jricl' doiit il se plaint dans sa declaration. Le 7 iJe. 'embr.' "187;!, les Intinies lui fii-oit rem.^ttre I'avis sui- vant : " it was resohed that in order to sustaiii the action of the '■congregation taken in regard to Mr. James Johnston (the Appel- " hint) at its meeting of the 4th November last, the Trustees do now ■■ decline to lei a pew to him for lli > (Mi-uing year. Carried — Mr. " A. Buntin dissenting-." L'Appelant, nonobstant cet avis, informa les Intimes qu'il entendait conserver la joui.s.sance de son banc. Alin de se conformer a rol)ligation de payer d'avance, il lit faire deux Ibis en Dccembre 1872, et uiu' autre fois le 2 Janvier 187-]. jour de recheance, des ollVes rcelles du montant du lover du bani en (luestion. Malgre le rel'us de ces ofFres, il continua d'occuper ]^ banc pendant quelque temps, mais comme les syndics ayant fi't mettre des placards imin'imes indi(|uant qu'ils mettaient ee GO hiUK- j\ l:i disposition dos rtranj^.M's, dont qui'l(|Uos-uus priivnt possession mali^rt'' rAppchint, tiyant do plus, iait fiilcver los cous- siiis vt l(»s livrcs do I'Appcdant, ([u'ils lirciit transporter a son bureau d'ad'airos, co dernier se trouva enlin Ibrte d'ahundonner son l)ane, alin d'eviter un plus u'rand scandale. Les Intimes out plaidc ])ar deiien-ation generale, et aussi par exception qxiil n'avait qu'un bail d"un an ]>our le banc No. GS, et qu'ils avaient le droit de rel'user de lui loner i)Our une autre annee, invoquant speciaUnnent Tusau'e de ri-lg-lise di; la maniere suivante: " That aecording- to the By-laws, eustonis and practice "of the said church, the pews therein are let each yciiY and with- '•out notice ibr their termination ; that there was no continuation "of his Imise, and they were under no obliu'ation to continue the " leas' to him." Us ajoutaient qu'ils n'avaient ])as jiigo a propos de lui louer un ])anc pour ranin';e 187-"3, ni pour aucun outre temi/s; ([ue le 7 Decembre, ils avaient dans leur discretion decide de ne pas lui louer le banc, decision qui tut conlirmee dans une asseml)lee generale de la congregation. La pretention de I'Appelant est d'apres ce qui precede que comme membre de la congregation et comme locataire de bancs pendant plusieurs annees, les Intimes n'avaient pas le droit de le priver de son banc, taut (ju'il se conlormerait a la condition de payer davance II pretend de plus que faute d'avis contornit'- ment a larticle 1G)7 du Codi^ Civil, il y a eu continuation de son bail, par tacite reconduction. La difriciilte en cette cause rei)oso entierement sur la nature du bail iait a 1 Apptdnnt ])ar les Intimes dans rLirlise de St. Andre a Montreal, d'un banc deiilisj sans qu'il ait etc Iait de conditions speciales entre les pni'ies. On ne i)eut considerer comme des baux les dilferents rei^^us donnes a Tappelant i)our constater le paiement de son loyer pendant les cinq annees qu'il a occupe un banc dans ci'tte culise. lis soni ti)us dans la meme forme, je ne citerai que le dernier : — il- U ft' 'M 4.:.' t:^ St. Andrew s Church. ,,-»r ^.„„., ., t o+u iuvo ..XT -1 A/^.rn " Montreal. January yth, 1871:. " Mo. 1 — $bi>.oO. •' '• Received from James Johnston the sum of sixty-six j";?, dollars, |l5i-. U» m ^— 1?: ,i [i« 1 !■ P vm mif 70 • being rent of 1st class pew No. OS in St. Andrew's Church, Beaver ''Hall, for the year 187l\" Co re^u ne fait preuve que du pavement pour ]87"2 ; il ne con- tient aucune expression qui puisse faire voir quelle est la duree du bail qu'il fait neceKsairemont supposer. S'il y avait eu un hail par eerit de ce banc pour dix ans, i)our la menie sommc, payable annuellement d"avaiiee, lo re^!U aurait-il etc con^u dans une autre forme ? Certainement non. Le bail intervenu entre les i>arties en cette cause n'a pas ete mis par ecrit. II est en })reuve que ce n'est pas I'usage de l'\s faire ainsi. Le seul article des roglements concernant les baux est I'article 10 ainsi con^u : •• Any pi rson who shall lease a'pew from the Trustees for one year •' and pay the rent in adA'anee shall be considered a pew-holder." Le terme d'une i-nnee mentionne dans cet article n'est pas pour determ^.iier la duree du bail en declarant qu'il ne sera pas de plus d'une annee, mais il est la evidemment que pour delinir la ([ualite de h)C(ilaire de })anc ())ew-holdcr) qui donne ;\ celui qui la ]>osscdo le droit d'etre considere comme ni'Mubre de Teulis,'. Le meme arti( le jiarlant d'une autre categoric de membres, ceux qui out droit de votm- ;i I'clection du comite charu'c du choix d'un minis- tre, ■^icclare cu'ils devront avoir payc trois annees de loyer ; mais la encore c'est ])our deiinir une qualilication, non pas pour iixer la duree da bail. Au conlraire. Tobligation de payer annuelle- ment et d'avance n'implique-t-elle pas (jue le bail doit avoir une duree indelinie ^. 11 n'y a rien ni dans ces reglements, ni dans Vacte d'incorjioration qui fasse voir qu'on a cu I'intention de d«''- terminer la duree des baux. Ce silence n'exclut pas sans doute le droit des syndics de faire des reglements sur ce sujet, mais il indique clairement qu'on n'a pas voulu (>n faire, })arce que sans doute Ton a agi sur la prcsomption (|ue cehii qui ioue un banc le prend i)Our tout h^ tmnps qu'il s.>ra membre de la congregation II n'est pas suppose devoir changer dci'lise comme de logement On n'a lixe le terme du bail parce (pie Ton a considere que de sa nature il doit ctre pour terme iudtMini, et on y a mis qu'une seule condition, le paiement d'avance. Jusqu'ici r'est ainsi que le regleniMit a etc interprete et mis en pratique. La preuve eta- 71 blit ce I'ait do la maniere la plus comi)l('tt'. La prt'toutiou des Intimt's (juf c'ost Tasaiie do loner dos bancs aniniollomont a oto oontrodito do la nianiero la pins forniollo. Wiqu au coiitrairo c'ost l)ronv6 an-dol;\ do tout donto (jno do tout temps Tusaiio invoquo par I'Appolant a provalu. Jo considero la preuvo sur co point coninie sullisante pour nio Justilior d'arriver a la conclusion ([uo lo bail fait a I'Appolant, en Tabsonce do touto preuvo contrairo, est conlbrnio a Tusaure conslant dopnis Toxistoncr do la oongrog-a- tion. Dans I'acto d'incorporation, pouvoir est donno aux syndics do i'aire dosroglonionts, etc., pourvu qu'ils no soiontpas contraircs aux lois de la province, ou aux autres dispositions do I'acto d'in- corporation on a la constitution do I'Eglise d'Ecossc tollo (|u"«''- tablie ])ar la loi, vn Ivosso. L'articlo Icr des roy'lomcnts declare quo TEglise do St. Andre consorvera la Ibrnio de c\dtc ct do i^ou- vornement de la dito lllu-lise l-ltablio d'Ecosse. Cette declaration no justilie-t-elle pas de rocourir aux usau'os suivis dans cette (''U'liso concornant la location di's bancs et d'en lairo rap])lication dans CO cas ? Jo lo crois, pourvu «iu'il n'y ait point conllit outre cos usages (>t Ics loii-- du pays. II n'en existe certainement pas. Car d'aprc.s la preuvo iaite en cette cause les usau'»»N suivis a co sujet en Ecosse diUcreraiont pen de ooux (jui lo sont u-eneralenicnt dans la Pro\ iiice dc Quebec, lis no sont en contradiction directe avec aucuno des lois do cette [)ro\ inco. Pour exi)li!] m un < ontrat on pout invoc|uer Fusa-o t- Ujue ic perniet lo code civil qui a conser\ e la niaxime du droit roniain. In, contract isi tacit e innaut uMs assoinbloes do la congregation et de 'I I? it I I ri f- I Hi;,, f :i; 1 'i !l 1H! '■1 M 72 rriilicc aviiit «''tt'' telle qu'ils «''t;iiont justiliuhlos (1(3 lui cnlcvcr son l)aiic. Connno Ics iaits out «''ti'' iiKMitioiiiK's en d(''tail par ceux qui iii'ont prect'dt'', jo m'a)).stien(lrai de les rrprter. Si la coiiduitc! de I'Appelaut meritait line censure ce n'«''tait pas aux Intime.s a la lui iiilliii-er, inais c'est devant un tribunal si)irituel, le Kirk Ses- sion, (ju'il devait (''tre traduit pour en rejiondre. C'et avance n'a (•iO i'ait (pi(^ i^our essayt^r de pallier ra])us de pouvoir (ju'lls out commis par leur r(''solution du 7 Drcenibre, relusant de loner un banc A rAi>pelant pour supporter racliondela conyre^-ation ot le I'oreer de resii^-ner sa chari^-e iVEU/er ei le ]n'iver du droit de i)ren- dre part aux ali'aires de IV'-o-lise. Cost pour arriver a ce resultat (ju'ils out eu reeours a I'expC'dient de lui refuser un ban<', le niet- tant de cettc^ nianic're hors de Ici^lise. Mais les Iiitimi''s oubliant qu'ils ne sont que des adininistrateurs, pretendent (jiVeux seuls lorment la corporation et (pie I'Appelant ni aiiciin autre, ne peii- vent r('*clamer Texercice d'aucun droit eonime niembre de la con- greu'ation (corporator). Cependant ils derivent leur pouvoir de ces memes membres (pi'ils pretennent n'avoir aucun droit, ils ne sont (|ue leurs agents, soumis. dans tous l<\s cas, siijets an controle des asseinblees dont les membres sont les vrais ])roprii'taires de Veglise. Je repeterai ;i ce siijet les paroles de THonorable Juge en Chef IJorion : — "As commoners the memb'^rs of this congregation have certain •' rights resulting from the implied contract entered into when they "joined the congregation, and of which they cannot b;> deprived "arbitrarily by the Ilespondents. Among those rig'hts is that of " obtaining seats and pews on the same terms and conditions as all ''the other members of the congregation and of retaining them as " long as they submit to the rules and usages of the church." Pour ces raisons, je concours dans le jiigeineut iniirmant celui de la Cour du Banc de la Heine renvoyant Taction de I'Ap- l)ellant, ji' suis d'avis (|ue les Intimcs doivent etre coiidamn(''S H payer $800 de dommages avec tous les frais tant eii Cour Infe- rieure que dans cette Cour. FouiiNiER, .1. (Translation) : — The Appellant has, from tho year 1807 until the year 1872, ino\v ill St. Andvew'H Churcli, Montreal. In 1S72 ln' was the Icii'al occupant of ])evv No. OS, as a memlx'r of tliis congrouMtion, in virtue of a verbal lease, u'ranted to him bv the Respondents, at the rate of $60.50 ]^er annum, i)aya))le in advance, accordinii' to the ]iy-la\vs adojited for the manauement of the nllairs of tliis congreg-ation, and the Act 12 Vict , Ch. 154, which constituted it into a corjioration. The quality >[' })ew-holder irives him, ])y virtue of Artich^ 12ofthe.se Hy-laws, all the rii>-hts and privileges Ix'longing to pew-holders, according to the Constitution, the By-laws, the usaii'e and custom of St. Andrew's Church, since its establishment. In l.STl the Appi'llant was elected one of the spiritual oiiicers, and occu])ied this position until the period of the IroubU; of which he C()m])lains in his Declaration. On the Tth December, 1873, the Kespondents had the followinu" notice sent him : " It " was resolved, that in order to sustain the action of the congre- " gation taken in rc^uard to Islv. James Johnston (the Appellant) " at the meeting of tin' 4th November last, the Trustees do now " decline to let him a pew for the ensuing year. Carried. Mr. " A. Buntin, dissenting."' Notwithstanding this notice, the Appellant informed the Respondents that he intended to retain the enjoyment of his pew. In order to comply with the necessity of paying in advance, he caused t.Mulers of the amoun' of rent of the pew^ in question, to be made twicv^ in D^'cember, 1(ST2. aiul again on the 2nd January, 1H7'), when the rent was due. In spite ofthe refusal of these oilers, he continued to occu[>y the i)ew during a considera})le period ; but as the Trustees caused printed placards to he posted on his j^ew, indicating that they placed the pew at the disposal of strangers, some of \vhom sat therein in spite of the Appellant, and had, further, tlie cusliions and books of the Appellant removed to his warehouse, the latter found himself obliged to abandon his pew, in order to avoid a greater scandal. The Kespondents jileaded a general d«Miial, and also an exception, to the eiiect that there was only a lease for one year for the ]>ew No. 6^, and that they had the right to refuse to lease it to him I'or another year, specially invoking the usage of the cliui 'h, as foHows : "That according to the By-laws, cus- 'fi ;>. I .\. ^ ■ ( ; •i it V.,' •i'li I Jill f '^4 . ••:' •■I 1 ''t^ i I Ir 'I 1^: ,11 1 ^m ri ■■ 1 i m : ' pip 74 " toms and practico of the said church, tho pows therein ar»> h-t " each yoar, and without notice lor their termination ; that tliere " was no continiuition of his lease, and tliat they wero under " no obliiiution to continue his l(»ase to him." They added that lliey did not deem it proi)er to lease him a pew lor the year 187-'. nor lor any oth(M' tim«'; that on the 7th Decem])er they decided, in their discretion, not to lease him a pew, a decision which was conlirmed ])y a special meetinii' of the conuregation. The ])retention of the Apju'llant is, according to what pre- cedes, that, as a member of the congregation and a pew-holder for several years, the Kespo. "Received from James Johnston the sum of sixty-six |';|', dollars. " being n'ut of 1st class i)ew No. G^ in St. Andrew's Church, " Beavi'r Hall, for th(» yoar 1872." This rtMeipt only makes |))'Oof of the payment for 1872; it contains no expression which makes it evident that the duration of the lease must n(M)essarily be taken to l)e. Had there been a writtoi lease of the pew for ten years, for the same sum, payables annually in advance, would the rect^pt have been drawn in a dill'erent form ? Certainly not. The lease between the parties in this cause has not l)een put into i o H •WTiiin'j;. It is j^rovcd that it was not the custom to do so. The only articlo of tht> l{y-hnvs touching- leases is No. 10. in tho following- terms : — "Any ])(M'son. who shall lease ii ]>ew I'rom the " Trustees for oin> year, and pay the rent in advance, shall be " considered a ])evv-holder," The term of one year nienticmed in this article is not meant to determine the duration of the lease, by declaring that it shall not be for more than a year. ))ut it is evidently only intend(>d to dellue the quality of pevv-holder. which uives to each one who po.s.sesses it, the riirht to be consid- ered a member of the church. The same article, speakini^ of an- othtM' «lass «)f members — those who have the riuht to vote at the election of the committee to l)e entrusted with tht^ choice of a minister — says that they must have paid thr<'e years' rent ; but here mj^nin it is to explain a qualification, not to lix the term of the lease. On the contrary, does not the oblig'ation to pay an- nually in advance imply that the lease has an indeiinite term :* There is nothini^ either in th(>se lU-laws or in tht; Act of Incor- ]wration to show that there was an intei\tion to lix tlu' leiiii-th ol" duration of the lease. This sileiu-e, vuidoubtedly, does not de- prive the Trustees of the ria'ht to make liy-laws on the subject, but it indicates clearly that they did not wish to make tliem, be- cause, without doubt, they a-'ted on the ])i'esumplion that every lessee ^vould take his pew for as loni>' a time as he remained a memlier of thi» cono^reii'ation. It is not to be imag'ined that peo- ple chanu'e their churches as ihey do liieir houses. Tiie term of the lease was not lixed. because it was considered, by the nature of the case, that it should ])e an indep 'iident term, and theri; is only one condition attached, vi/., payment in advance. It is thus that the Uy-law has been interpreted, and i)ut in practice. The proof establishes this fact in the most complete mannei'. The pretention of the Respondents ' that the custom of leasinu' pews annually has himn contradicted in the most formal way. On Ihe other hand, it is proved beyond a doul>t that the custom invoked by Appellant has always pr«'vailed. I consider th(» proof on this point as sullicient to justify iw in arriving at the conehision that this lease given to App.'llant, in the absence of all proof to the i:^ ;*'.( ii. M i Miit r , ,1) I i: i t ■ . ]t ♦Hi ,f 1, I- ;: i'i ^*.,\ I.. j i t ■:. j 1 ■;' ■ iM f-'ontrary, is lo Ix' rcnuljitt'd hy tlif const luit u.s;m«o in force siiico the exi.slciioo of tlie coniircu'ntion. Ill tho Act ol' Incorporation, ])()\vcr is u,"ivcii to the Trustees to iriaive IJy-liiws, iScc, provided they he not contrary lo tht! l;i\\ s ol" tlie Province, to the other dispositions of tlio Act ol' Incorpora- tion, or to tlio Constitution oi" the Cliureli oi' Scothmd, as estah- lished hy law in Scot hmd. Article 1 of the IJy-laws declares, that St. Andrew's Churcli is to preserve the I'orm of worship and g-overnnient of the Estal)- lished Church of Scotland. Does not this declaration warrant a reference to the us;i<4es of this church concernini»- the letting- of pews, and an application of tlu'ui in this case '{ I think so, in so I'ar as there is no variance between these usages aiul the laws ol" the land. For, by tlu^ i)roof nuide in this case, the usages of the Esta])lished Church of Scotland on this point dill'er very slightly from those which ol)tain in th«^ Province of Quebec, and they are not ojjposed to any of th(^ laws of the Province. In order to explain a contract a usage may be invoked as permitted by the Civil Code, which has preserved tln^ old maxim of the Koman Law : — In amirniiis tarite insurit quic t^unt maris et cotisiielKdiuia. In consulting these usages according to the proof, we see that it is the custom of St. Andrt'w's Church, and of the Church of Scotland, to h'ase pews, at the option of th > meml)crs of the congregation without a iixed term, on the condition of ]xiyiuent of rent in advance For all these reasons, l):ised on the nature of the leas \ on the custom of pew-letting in St. Andrew's Church, on the usage ibl lowed in Scotland, which may be invoked under the peculiar circumstances of this case, I believe that tho Appellant was legally in posse.ssion of pew No. OS, of w^iich he was unjustly dei)rived. The Respondents have in vain tried to prove that the conduct of the Appellant, at the meetings of the congregation and in church, was such that they were justified in depriving him of his pew. As the facts have been mentioned in detail by those who have preceded me, I will refrain from repeating them. i t I'^vt'ii liiul the condu 1 of tli""Ai)it"Il;iiit (l('st!i'\ (mI ( ciism-c, it wah not tho proviiici' ol'th;' 'rin-li'<'s to iiass it upon liim ; he should lirtvo Ik'i'U l)r()Uu;'ht to iiHtWi'i* any iharuci's Ix'lbr.' a si'iritual tribunal — tlu^ Kirk S^-ssion. This niov-- has only Immmi n»a»l(« to endeavour to i)alli.'tt' tho ahus^ oj' pow-.T which lln'y had coni- niillfil hy thi'ir resolution ofth 7lh J)t'C('ni))('r, rolusiny to let a pi'W to Apindlanl, in oidcr to sustain the action ol" the conur**'.;"!- tion, and to I'orco him to rcsiu'ii his olU'c of cldfr, and to drprix c him of the riu-ht of takiii'j; part in tln' atlairs ol' the 'atioii (corporator). Nevertheless, they (the Trustees) derive w.hat ri<»-hts they have from these same members, who, as tliey j)ret<'nd, are without ri^'hts ; they are only their ay-ents, and subjec.', in every instance, to the control of a meetinu- of the true proprietors of the church. I will repeat the remarks ol the Honourable Chief Justice Dorion on this subject : "As commmers the members of the coni^-reg-ation have certain *' rialits resultino- from the implied contract entered into when " they joined the conn-reu-ation, aiul of \vhich they cannot be de- " prived arbitrarily by the R(>spondents. Amonu' these rig-hts is " that of obtainina- seats aiul pews on the same terms ami condi- " tions as all the other members of the conu'reu-ation, and of re- " taining- them as long- as they submit to the rules and usages of *' the church." For tliesr* reasons I concur in the judu'ment reversing- that of the Court of Queen's Bi'iich, w^hich dismissed Appellant's action, and I am of opinion that the Respondents should be <'ompelled to pay $300 damages, with co.sts both of i\\^ Court below and of this Court. ?> feu r.% IMAGE EVALUATION TEST TARGET (MT-3) r^ '^ 1.0 1.1 150 H^H S? 144 ■■ ^ 1^ IIIII2.0 \J5 III 1.4 12.2 & V^ 6" <^ Va :V> ^^J^ ^ / ^W v Hiotographic Sdences Corporation ^ *^!^ ^' 23 WEST MAIN STREET WEBSTER, N.Y. 14S80 (716) 872-4303 "9.^ ^mm mmf A % ^S P 78 M i 1. \. ivii ii; REMAKKS AND OPINIONS OF HIS LORDSHIP THE HOXOUJJ ABLE MR. JUSTICE HENRY : Henry, J. : — The Ai)pellant having been in the legal possossioii of a pew (No. G8) in St. Andrew's Church, Montreal, during the year 1872, and during the months of January, February, Maroh and April, 1873, complains of being disturbed in his possession thereof. on several o;casions during the months named, by the Respondents they having removed his books, cushions, &e., therefrom, and ])y placing x)lacards thi'rein intimating that the p3w should be re- served for strangers. The Appallant is shown to bj one of the congregation for whom the Respondents, as Trustees, held the title of the church. (See Art. 12 of the By-laws.) He had b^en the holder of pews in the church for several years, and of the one in question (No. 68) during the years 1869 and 1872. The church having been burnt in October, 1869, and not rebuilt and occupied till November, 1870, the Appellant occupied No. QQ in- stead of No. 68 from that time till the end of 1871, returning to No. 68 in January, 1872. The rents of the pews were paid an- nually, but no written leases were granted and no letting was annually made, but those in possession continued from year to year to pay the rent, sometimes but not generally in advance. The Respondents contend that under these circumstances the leases terminate every year, that no notice to quit is necessary, and that they, as Trustees, could be justified the day after the ex- piration of the year, in turning out, without any previous legal notice to quit without any other legal justification or necessary explanations, the books and furniture of any of the pew-holders. If they have that abstract right, we cannot, in an action like the present one, withhold from them the defence which that right enabled them to set up. The arbitrary and improper exercise of a right so peculiar as that claimed, would lead to the most unpleasant consequences, and the existence of it would enable the Trustees, without legal restraint, to unseat and drive from their pews any number of the p3W-holders they pleased to injure, without a moment's notice. THE assossion ; the year ircli and 1 theri'ot'. ioiidents L, and ])y Id be re- le of the held the lad been d of the r2. The )uilt and [o. 66 in- irning to paid an- tins: was year to idvance. ices the icessary, the ex- is legal cessary holders. like the it right iliar as lences, it legal of the )tice. 70 All tV..i would be nocensary for them would be on the first day of J anuary, in any year, to say to A, 13, C or D : " V/e have decided that although you are an elder and communicant of the church, and ont^ of the parties for whom we are Trustees, you shall no longer hold a seat in the church." Can anyone say that such should be the relative po.sition occupied by Respondents and those for whose use they hold the title in trust? The Respondents do not avowedly claim that i>osition, but give a reason for the commission of the aets complained of, and make an insufficient attempt at a justification. Their justification for the acts complained of, on the ground of alleged improper conduct of Appellant, must wholly fail, for neither the law nor the Constitution of the church, empowers them to refuse the continued occupation of a p^w to which the party holding it was otherwise entitled, because they might have objections to his moral character or conduct. By their plea they attempt a justification on the ground that, to the best of their judgment, before the 31st of December, 1872, it had become unde- sirable and inexpedient to let the said pew No. 68 to the Appellant for the year commencing the first day of January, 1873, or for any other time, and in the exercise of their discretion, and in good faith, without malice or any other than conscientious mo- tives, and with a desire to fulfil their duties, and for the preserva- tion of peace and harmony in the yt^ongregation, the Respondents did, to wit : on the 7th day of December, 1872, decide and deter- mine not to let a peio (that is, any paw,) to the Appellant. For the sake of the Respondents, it is, perhaps, to be regretted that it having become " undesirable and inexpedient, to the best of their judgment, ' to give any sitting in his own name in the church, does not constitute them the judges in such a case ; nor does it allow them, "in the exercise of their discretion," to take the stand they did ; and although they acted in good faith, and without malice, &c., there is no justification under this plea ; and it is to be further regretted that the course they adopted (conscientiously, no doubt,) resulted, as in many other cases where arbitrary power is exercised or attempted to be used, in lessening instead of increasing the peace and harmony of the ■w rT 80 iill i. I, "f hi 111 ■!'f I •I'll •i'ongrogation. The By-laws and Constitution of their church di- rectly vested the power, not in the Trustees (who are frequently not persons capable of deciding" questions of moral conduct, &c., or versed in church discipline), but in the Session, and, by ap- peal, in the Synod. The Appellant had recently been disposed as an Klder by the Session, but the Synod reversed the action of that body ; and at the time of the refusal to him of a seat in the church, he was, by the rules of that church and by a decision of its highest court, an Elder in full standing, and one in regard to whom the Trus- tees had no right to exercise their judgment or discretion so far as to refuse him a seat for the reasons pleaded ; and if, in their judgment, in a matter in which they had no legal control, they thought it "undesirable and inexpedient" not to leave the Ap- pellant in the enjoyment of his rights, but invaded them, they must abide the consequences; and if, by attempting to usurp power that properly belonged to other bodies in the church, and by disregarding the action of the Synod, whose de- cision should have been respected, they have produced liti- gation and otherwise increased discord and want of har- mony in the congregation, it is but what might have been expected. The attempt by the Respondents and the Session to disrate the Appellant having failed, we can only conclude that the attempt to do so shoidd i\ot have been made ; and if the Appellant, after the judgment of the Synod, acted improperly, a fresh case, before the proper authorities, should have been brought ; but to permit the Trustees, who merely hold the title for the benefit of the congregation, and who have limited powers only, as their dealing with it, to decide upon the conduct of one of its members, and an elder, too, and thereupon deprive him of a pew or seat in his church, would be to strike at the root of all proper church government, and create an imperium in imperio calculated to create all sorts of strifes and conflicts. Having Ihus disposed of this justification, I will now consider the case as presented by the other pleadings. Much has been said at the several arguments of this case, a good deal of irrele- vant testimony introduced, and many points discussed, in the IM 81 rch di- uently 3t, &c., by ap- by the and ai vas, by court, 3 Trus- I so far II their dI, they the Ap- m, they I usurp church, )se de- jed liti- 3f har- e been Session de that if the )erly, a been le title powers of one him of of all mperio Dnsider 3 been irrelc- in the judgments rendered in this case previous to the appeal to this Court ; but many of those points and arguments, and a great portion of the evidence, I consider unnecessary to be referred to in my view of the law that must govern the decision. The Appellant claims that he was rightfully in the possession of the pew in question when the trespasses and wrongs were committed. Ist. Because having been in possession in 1872, he was entitled to three months' notice to quit, and without which he could hold over for the year 1873, during which year the trespasses complained of were committed. 2nd. That having continued in possession eight days after the 1st of January, 1873, under Article 1609 Civil Code, Lower Cantda, he could hold pos- session on paying the annual rent in due time for that year by tacite reconduction. The Reispondents deny the correctness of these positions, and contend, as to the first, that no notice to quit was necessary, and, secondly, that they having given the notice of the 7th December, 1872, and subsequently refused to receive the rent, there was no tacite reconduction. I am of opinion that there was no renev/al of the lease by tacite reconduction, and that the notice referred to and the refusal to receive the rent, destroy the Appellant's contention on that point. See Articles 1609 and 1610 Civil Code (L. C). I will, therefore, proceed to consider the Appellant's first position, and in doing so must, in the first place, solve the question as to the nature of his holding. Was it by a lease ? I feel bound to decide that it was, and by a verbal one, for the receipt for the rent for 1872 does not constitute a lease. It is merely an acknowledgment of the receipt of the rent for the year, signed on behalf of the Treasurer, and would not be incompatible with a holding by lease, written or unwritten, for life or from year to year, or otherwise. Besides, the Treasurer had no authority to lease or let the ptws or make any contract therefor. The letting was a verbal one by the Respondents, as Trustees, to the Appellant, but it has been adjudged that if it were a lease it was not of the ordinary kind. Mr. Justice Sanborn properly says : — " In St. Aadrew's Church in " Montreal some persons have a proprietary interest in pews — 1» 82 li V n h +ij " others, as Appellant, hold only by fease, having no ownership in " a pew;" and adds: — " As the rights which ownership of pews " gives to the owner are peculiar and not subject to many of the " ordinary incidents of property, so what is termed lease is not an *' ordinary kind of lease." And further: — " It is a means of contri- *' buting to the support of the Gospel." I cannot conceive that in the relation of the parties here now, the ob/ect for which th3 pews are let, or the purposes for which the rent is applied, can in any way affect the^character of the holding, or that the application of the rents can in any way affect the rights of the tenant who pays them ; nor can it legally affect those rights, whether they are merely Trustees' or owners' ; nor are the Trustees the less lessors in the ordinary sense, as between them and their tenants, because the funds derived from pew rent are only received in trust for the benefit of the congregation and as " means of contributing to the support of the Gospel." In support of the view taken by him, Mr. Justice Sanborn quotes Pothier (Louage ; No. 4), who says : — " Ou tolere neanmois " le louage des bancs et des chaises dans les eglises ; on pent dire " ce n'est pas proprement un contrat de louage, et ce qu'on donne " n'est pas donne comme le prix d'usage de ces choses qui ne sont " pas (not applicable, as the Judge quotes him, but appreciable,) " mais comme une contribution aux charges de la fabrique." This doctrine is held and may be properly applicable to churches under the laws of France and to Eoman Catholic Churches in Lower Canada, and be totally inapplicable to churches held by a civil corporation like the one in this case. In this and other countries, churches are owned by one or more persons not neces- sarily belonging to the same religion as those who worship in them, and surely the doctrine of Pothier cannot be held appli- cable to them. If owned by a civil corporation, the same prin- ciples, I take it, would govern as if owned by an individual, except as being the Trustees and thos'^ for whom they hold. But if French law is to be enforced in one respect, why not take it in its integrity and comprehensiveness ? "We would then have, under the French and Lower Canadian parochial organization which prevails with respect to the Roman Catholic Churcli, and ^.i^if 83 even under the ju isprudence in England and Scotland in regard* to the Established Churches there, to decree to the Appellant, as lessee of the pew in 1872, the right to retain it as long as he re- sides at Montreal on payment of the rent originally agreed upon, subject to the right of the Respondents as Trustees ; with the sanction of the two-thirds of the congregation to raise or lower it. In that view the Appellant's action would be sustainable to recover by law compensation for the damages done to him. The Trustees in this case hold the titles, and although re- strained in some respects, they have the ordinary power of Trus- tees to lease ; and can do so " within the terms of the Constitution " and By-laws and as incident to their title. Corporations aggre- " gate may make what estates they please in their church or other " lands." — (2 Step ; Com., 733.) When that power is so exercised by them I can see no difference in principle by which their leases would, as between them and their lessees, be different from, other leases by other Trustees, or be subject to the application to them of different rules of law. The lessee in either case obtains the right of possession and user for the time, and pays the rent agreed on. The Trusts are declared by the conveyances, the Acts of Incorporation, and its amendment and the By-laws,, and the Trustees have to account in the ordinary way to their cestui que trust. After full consideration of the position of the Respondents, in regard to their lessees, I can come to no other con ^' U.Jon than that it is one incident to any ordinary civil cor- poration, and that the Court, without in the slightest degree trenching on the religious rights, privileges or responsibilities of the Trustees or congregation, or with any discretionary power of the former, is empowered and bound to deal with the subject matter, as one purely of civil contract, and in that view to con- sider and adjudge the rights of parties as in regard to the proprie- torship and leasehold of pews. The exercise of this pov>'^er will not trench on the rights of spiritual jurisdiction, nor will it in any way dJBfect the contracting powers of the Trustees. It only, in this case, is invoked to decide upon the contract made, and for an unlawful interference with the rights of the Appellant under it. To sustain the proposition that the Appellant held by lease. m M) i> '« [{•i»: VliJ (( i( 84 • and not a mere easement or license, it is necessary first to show that the subject matter is capable of being leased, and if there be no legal i-rohibition, the understanding and expressed views upon that point of the parlies themselves, may aid in ascertain- ing their respective rights under the circumstances. A lease is well defined at Common Law to be " A conveyance by which a " man grants lands or tenements to another for life, for years, or at »' will." — (Step; Com., 512.) " Inordinary legal intendment, tene- " ment includes not only land, but rents, commons, and several " other rights and interest issuing out of, or concerning lands." (1 Step ; Com., 170.) By Article 1605, C. C. (L.C.) "All corporeal " things may be leased or hired, except what may be excluded by *' their special destination, and those which are necessarily con- " sumed by the use made of them." By Article 1606, *' Incorporeal things may also be leased or hired, except such as are inseparably connected with the person, &c." The pew in this case is, in my opinion, a subject of Article 1605, and under that Article may be leased for any term within the trust. By the 10th Article of the By-laws, " Any person who shall " lease a pew from the Trustees for one year, and pay the rent in " advance, shall be considered a pew-holder. The rents of pews " and sittings are to be paid annually in advance, from the 1st day " of January, and are to be considered then due, &c." I have before stated that in regard to the church temporalities, the corporation here not being an ecclesiastical one, but the creation of a special Act of Incorporation, partakes of the character of all ordinary civil corporations ; and I have so decided after an exhaustive search for the leading principles to determine that point. If correct in the position taken, it necessarily follows that the Trustees had*t>ower to lease for a year, or for years, the pews in the church, and that the party leasing from them got a leasehold title, and not a mere easement or license, to occupy and use. The right acquired by the Appellant was not, there- fore, an easement ; an easement being " an interest in and over " the soil. It lies not in livery, but in grant ; and a freehold " interest cannot be created or passed otherwise than by deed, and " the right oi profit a prendre, if enjoyed by a holding of a certain 85 " other estato, it is regarded in the light of an oasemont appurten- " ant to such estato ; whereas, it' it belongs to an individual, distinct " from any other lands, it takes the character of «« interest or estate " in the land itself, rather than that of a proper easement in or out " of the same." (Wasburne on Easements, 7 ; Grimstead vs. Marlowe, 4 J. K., 717.) Easements, that is, such as stated, '* being interest in land, can only be acquired by grant, and " ordinarily by deed, or what is deemed to bo equivalent thereto, " a parol license being insuffii'ient for the purpose." (Wasburne Easements, p. 18.) " No servitude can be established without a " title ; possession even immemorial is insufficient for that purpose." (0. C. L. C, 549.) •' As regards servitudes, the destination made " by the proprietor is equivalent to a title, but only when it is in '* writing, and the nature, the extent, and the situation of the " servitude be expressed." (C. C. L. C , 551.) A parol license being revokable, no term of holding could bo created, and therefore the holding by the Appellant cannot be an easement or under a mere license. His holding must therefore be as a lessee under a verbal lease. It is now the settled legal doctrine that a corpora- tion, just as the Respondents' corporation in this case, has all such authority as will conduce to the attainment of its ends, save such as are, by direct provision in its Act of Incorporation or other constating instruments, or by necessary inference from the same, denied it. (Bryce on Ultra Vires, 38, ft seq., where some decisions are quoted.) " Ownership is the right of enjoying and disposing of things in the most absolute manner, provided that no use be made of them which is prohibited by lav/ or by regulations." — C. C. (L. C.,) 406. Then, I take it that not only had the Respondents as Trustees, by the express terms of the By-laws, by the Civil Code, but also by the late decisions, the power of granting leases of pews, and that such would bind the congregation then cestui que trust. 1 will apply but two more tests : — 1st. Could not the Appellant have had recourse for damages, if the Respondents, during the year 1872, had ejected him from the occupation of the pew, or have interfered with his proper use of it ? Having received the rent, would they not be estopped from saying he held only by 86 jj Ml I »! license where their contract wan irrevocable for that year ? Were they not bound, under the 3rd section of Article 1612 of the ('ivil Code, to give " peaceable enjoyment, tScc, during the continuance of the lease ?" And 2ndly. Had not the Kespond- ents, in the language of Article 1610, for the payment of their rent and obligations of the lease, a privileged right upon the moveable effects which are found upon the property leased, upon which they had a privileged claim for any rent falling due ? Having disposed of the question as to the lease, the next point for consideration is the nature of the lettings as to ttie term granted. I have already characterized them as ordinary leases, and can find no law to make them otherwise. "We have now to consider the nature of the holding of the pews for over forty-nine years up to 1872. The Trustees let the pews originally for a year, and for rent in advance, and the pew- holders, whether the rent was paid or not in advance, were allowed to become lessees for a second year by tacite reconduction, and so on from year to year. Art. 1609 provides : "If the lessee *' remain in possession more than eight days after the expiration of " the lease without any opposition or notice on the part of the '• lessor, a tacit re.icwal of the lease takes place for another year, or •• for the term for which such lease was made, if less than a year, " and the lessee cannot thereafter leave the premises or be ejected " therefrom unless notice has been given within the delay required " by law." This article clearly applies to all holders of a pew for over a year. The Appellant was a lessee of No. 68 for two years (*68- 60), and during the latter year was clearly entitled to no- tice. He resumed possession of it in 1872, having occupied No. 66 in 1871 at the same rate as he previously paid, without any new bargain or arrangement, so far as appears. What then was^ under all the circumstances, the nature of the holding under the contract ? Would it not be a fair inference that he resumed his former position as to No. 68, and which was the same as that of all other pew-holders who held for over a year ? And was it not the true understanding of the parties that his occupation should be identical with all the other pew-holders ? Did not the Re- spondents virtually say : " The rule and practice is to let pews, 11 y\ ']■'■ 87 for rent payuhlc annually in advance, and you shall have the same tenure a» all the othcrN, which is a holdinii^ as loni? as you pay the rent in proper time ; and we having now adjudi,'ed you as a lit person to hold a pew, you can, by payinu^ the rent in advanci^, <'ontinue to hold the pew until wo ^ivo you notice to quit, or you are declared by the proper authorities not a iit person to do so ?" I feel siutisUed that, had such been submitted for the consideration of a jury in an English Court, and they found that such was the implied contract, the verdict would be sustained, and I have found no law or rule which would prevent a judge in Lower Canada linding the same under the Code of Civil Procedure. In that ease the Appellant would be entitled to a legal notice to quit. It is not, however, necessary, in my opinion, to decide positively that point ; although, did the ter- mination of the lease depend solely on it, I would not have any hesitation to do so. That in all cases of verbal leases, and where the term is uncertain, a noiico is necessary, appears to me unquestionable. By Article 1657, " "When the term of a lease is " uncertain, or the lease is verbal, or presumed, ar* provided in " Article 1608, neither of the parties can terminate it without " giving notice to the other, with a delay of three months, if the •' rent be payable at terms of three or more months ;" if the rent " be payable at terms of less than three months, the delay is to be " regulated according to Article 1642." When the term of the lease is uncertain. This is clearly applicable to a written lease where the term is not stated, and under which a party may hold by the year, quarter, month or otherwise. It is also applicable to verbal leases, w^here the term is not originally agreed upon, for the word " lease " applies to both ; and nothing further was necessary to be provided for by the Code, unless a distinction were intended to be otherwise made between written and verbal leases. The Code evidently was intended to go further, and adds, " or the lease is verbal," a comprehensive term embracing all verbal leases, and so plainly mandatory that I feel bound to the consideration that, for good reasons (one of which may have been, not to lease so important a right as the ending of a lease to be resolved by verbal proof, subject, as it would be, to conflicting 88 evidoncc), tho IVamorK of tho Codo UHcd tho words adviH«'dly, and that they, in tho cmploymitnt of words so plain, and tho LctJi'iHla- turo in adoptinj^ thoni, intended llioni to apply to all cases of verbal leases, and to thos(» where tho term is uncertain. Such l)oin«; my opinion, I am necessarily bound to declare that, as no le«?al notice was «riven to the Ai)pellant, as required by the Cede in tho case of verbal leases, and where the term is uncertain, the Respondtnits were not justified in the trespasses and grievances committed by them, and that the appeal should be allowed, with costs, and that tho Respondents should 1)0 adjudn^ed to pay to the Appellant the sum of $300 damai^es, for the injuries com- plained of. It ^ jif ■t^ REMARKS AND OPINIONS OF HIS LORDSHIP THE HONOURABLE MR. JUSTICE RITCHIE :# Ritchie, J. : — I have given this case a great deal of considera- tion ; I have felt throughout the argument and throughout tho investigation I have made, that tho case is surrounded with a great many difficulties, and my mind has doubted and lluctuatcd in it from time to time ; but after most careful consideration, I have arrived at the conclusion, that the principle upon which Chief Justice Dorion, in the Court below, decided this case, is the correct one. This church, I think, dated a far greater distance back than twenty-live years ; I look upon it as dating back to 1805, This church was deeded to certain persons as Trustees ; and what was it so deeded for ? It was deeded for the benefit and behoof of said congregation, and for no other purpose what- ever. It was found afterwards at the date of thi? charter of 1849, that it was necessary that the church should be enlarged, and. that legislation should be obtained with a view to enable them successfully to carry out tho trusts and objects contemplated. A • Owing to the absence of his Loidship, the Honourable Mr. .Justice Ritchie from Ottawa, the compiler has been compelled to take a newspaper report of his Lordship's remarks, which docs no' contiiin the authorities citud. 1 80 THE lie from rdship's charter wan prantod, and it was for the use and behoof ot the congregation of the church. Under this charter, this church was subsequently enacted, and <'ertain Iiy-hvvv«, ruh's and regulations were made for th(! government of the church ; but it is clear that this church was for the benelit of Iho congregation, accord- ing to the laws and gov«'rnment of the Established Church of Scotland. Now, I think it is very much to be regretted, indeed, that either in this Act which was passed in 1849, or in the By- laws which were pas'^od in 1851, all questions, such as this, had not })<»en put upon a footing more clearly enunciated, so that these diflicullies might not have arisen. Now, I think that this church was not given to these Trustees for the purpose of letting or not letting — for the purpose of doing, with reference to that congregation, as it seemed right in their own eyes — but I think they held the churc^h for the benefit of the congregation at large, and those persons who worshipped in it ; and I think they had no arbitrary discretion in the matter. I think, to find out what rights the congregation had in this church, we must look at what rights congregations have in the Church of Scotland, according to the form of worship and government of that church, but I cannot take judicial notice of what the rules and regulations of that church are. They must be proved. I regret that in this action the law was not proved in a clearer and more distinct manner, so that it could be easily understood, and we could be governed and guided in the matter by something more distinct than appears in this case. The very words quoted by the learned Chief Justice, with reference to the minister of the church, show how little reliance can be placed upon that clergyn. ':i's idea of what the duties of those Trustees were, when he sa^o they had a ^' sorl of discretion." "What is the meaning of a ''sort of dis- cretion ? " They muot have a legal discretion or none at all. "We must know sometliing more than that with respect to it. When I turn to the evidence of the Kev. Mr. Campbell in this case, I find he puts it there on what I think is a very intelligible footing. He says, in effect, the rights of this church and the congregation of it are to be, as near as may be, analogous to the government of the Church of Scotland in Scotland, and the rights- -•#■'- 00 I 1:.': . I ' liiJr of a congregation there ; and ho says that there the congregation are never deprived of their seats ; that there, such a thing as depriving an elder of the churcn of his seat was never heard of, so long as he was a member of the congregation. I take thai in connection with what was said by Chief Justice Dorion in his judgment (which, I understand, is quite concurred in by my learned brethren or. this Bench from Quebec), and that is, that ihe pews aie let to the congregation, the rent payable in advance ; when they pay the rent in advance,they continue to occupy the pew until some good cause can be shown why they should be deprived of it, and thereby, of the benefits secured to that congregation by the first deed, and the statute passed in 1849, without some good reason. In addition to that, I put this: The learned Chief Justice says, for twenty-five years they appear to have acted in this way in this church, but as I date back the origin of this church to the year 1805, so far as I read the evidence, for seventy years there was a continuous acting up to that principle which the Rev. Mr. Campbell ^>uts forward — to that principle which was enforced in, the Province of Quebec with reference to the largest church in that Province, and appears to have worked without the occurrence of any one of all those numerous diffi- culties, suggested as possible to arise by the learned Chief Justice. "Was there any wrong done in this case that they should occur ? I think not. It is absolutely necessary that I should make some reference to unhappy differences which occurred. Otherwise I should not do so. One reason why I refer to them is to show there was no cause why this gentLman should be deprived of his pew, and another is, it affects the damages to be awarded to this casr. I trace the whole of these difficulties to the action of the minister of that church in changing the forms or modes of worship in the church, which was distasteful to the Appellant in this action, and to others, a mi'iority iu the church. I know historically, I know individually as a member of a church, and I know judicially as having been called upon to decide questions growing out of dif- ficulties arising from cases of that sort, that there is nothing more <'alculated to introduce an inharmonious spirit in a church, than n regation hing as leard of, ke thai ►rion in by my is, that ivance ; the pew eprived ition by le good i Chief cted in of this seventy which which to the ivorked s diffi. ustioe. occur ? erence lould re was pew, casr, nister in the 1, and mow ly as f dif- more than departing from ancient usages of the church, and adopting forms and observances that the congregation are not accustomed to. If parties are in the minority under those circumsta.aces, I do not mean to say there may not be such changes as they might not be bound to submit to, but I think their feelings — nay, even what may be regarded as prejudices — ought to be dealt with leniently. It appears, growing out of those changes, other difficulties arose. There is no doubt the Appellant in this case put forward a state- ment without sufficient foundation for it, though he says he had information which he supposed to be accurate at the time ; and he certainly did contradict his minister with reference to a ques- tion of fact in a manner and under circumstances that I do not think anybody would approve of, because, before he ventured to contradict another pointedly and unequivocally, he should have been well assured he had used all meai^s to obtain informaiion to justify him in putting forward a contradiction of that kind ; but though he was wrong in that contradiction, I think the gentle- man who aggravated that, was far more wrong when he openly, at a public meeting of the church, said that man had called his minister a liar. That is a term which I think no man is justified in putting into the mouth of another, unless that oth^r has actu- ally used the very expression itself, because, though it may be that a man may contradict another under the conviction that the statement made is erroneous or incorrect, still, to say the state- ment is erroneous or incorrect is far difterent from telling the person who is contradicted that he is " a liar." If the gentleman really, honestly and sincerely believed the statement to be in- correct, and it was a matter of discussion in the church at that time, it seems to me he would have been wanting in indepen- dence if he had not pointed out the incorrectness of it, but he should have taken good care his information was correct, and the manner in which he did so should also have been carefully guarded. Then, after that, there seems to have been other dis- cussion, and then the Trustees, it appears, desired to get rid of the gentleman as an Elder of the church, and, so far as the evi- dence in this case goes, it appears that with reference to Elders €f the church the Trustees have nothing to do. With reference '■1 92 ill Ml to their displacement or their office, they are subject to the laws of the church courts, and to be tried there and removed by their decrees. It seems that for any misconduct of a member of the congregation, inconsistent with the proper conduct of such a member, he may be brought before the proper courts, and have the matter duly investigated and duly tried, and, if tried, dealt with as those courts in their discretion may judge right and proper. It appears that course was adopted, and Mr. Johnston was tried, and was at first condemned ; but, upon appeal to the church tribunal, it appears he was entirely acquitted, and he re- mained in his office of Elder, not subject to the control of the minister or dismissal by the Trustees, or to the control of the Trustees in any way. But it appears they and a large majority of the congregation were desirous of getting rid of this gentle- man. It is my opinion, with reference to this matter, if they de- sired to get rid of him legally and properly, they had a right to take such action as would accomplish the object in view ; but I cannot assent to the proposition, that to accomplish what they could not do legally, they had a right to pursue another course and refuse to let him leave his pew, and thereby prevent him from continuing to be a member of that congregation. They could not do indirectly in that way what they failed to accom- plish directly through the instrumentality of the courts established in the church for that purpose. Therefore I think that where they adopted that course they were not exercising a reasonable discretion — they were not withholding the pew from Mr.Johnston for any reasonable, legitimate or proper cause, and that ihey were endeavouring to gratify their own feeling with regard to his (to them) obnoxious position in the church as an Elder. They were endeavoring to use the power they had in the church as trustees', in a manner which, I think, the laws of the Church of Scotland, with the original deed in this church, the charter of the church and the articles of the church never contemplated Trustees should use it. . It was never contemplated that they should coerce or turn out an Elder of that church by using a power over the pews in the way in which they did in this case. I speak this with reference to damages. The very circumstance I to his They sing a case. stance 93 of their feeling, and avowing, they were accomplishing one object in that way w^hich they had tried before and could not accomplish by legal means, should have made them pause, and. therefore, their conduct was very irregular, and in my opinion very improper.. The way in which they carried it out was equally objectionable. Considering this gentleman w^as an elder in the church ; considering the number of years he belonged to the church and his position in the church ; without any notice, sending all those articles used in his pew in the church, and by a common carter, and putting them into his place of business, was not treatment such as he should have expected. He was an ofBcer of the church (for an Elder is a high officer), and this con- duct was certainly not what he would have a right to expect. This and the placarding of his pew after wards was all done with one object — to drive him from the eldership and from the church. I think, up to this time, if he had done anything to entitle him to be driven from his eldership and from the church, that should have been established in the spiritual tribunals of the church, and not by the Trustees in the way in which they have done ; I think it is contrary to the spirit and government of the church. I might have mentioned also, T find in these articles the idea of continuation of occupancy of pew-holders is recognized, because certain rights and privileges are given to them. Who- ever paid rent for two preceding years is enabled to elect certain officers in the church ; I find, also, instead of saying that the Trustees shall make the rents and fresh agreements every year, renting the church every year, Article 10 declares that any persons who shall lease or rent pews and sittings, are to pay for them annually in advance. That would not be necessary if they were to be leased every year, because this clause would not be neces- sary. If they w^ere leased only for a year, and paid for in advance, there would be an end of the matter ; but it goes on, " the rents of pews and sittings are to be paid annually in advance." What does that mean ? It means, that having got the right of pre-emp- tion — if I may use the term — they go on using it. Why is it to be considered due, if it all rests on one individual agreement to be made at the time ? There would be nothing due, in that case, .:.?•• 'I •? ilk' I'; ■>i '■ hi 94 m li n -w ^i I" until the agreement was made — nothing due if the rent must be paid in advance. I put this in connection with the usage of the, church, and I think it clearly shows the conclusion at which I have arrived, though I am sorry it is loft to inference. It may be, all the difficulties suggested by the learned Chief Justic«'. may have arisen, but they have not arisen in this church in seventy-three years, and it is clear they did not arise from any of those causes put forward by the learned C^hief Justice in the present case, but, as I have shown, from the Trustees (and possi- bly the congregation also) desiring to do indirectly what they could not do legally and directly against him. In view of all these circumstances I am constrained to the con- clusion that this man has been wronged in being practically turned out of this church when he ought not to have been. I think this Court ought so to decide and adjudge him such reasonable damages in this case as, while not o^ a vindictive character, will serve to warn those persons entrusted with such delicate positions ag'ainst such an improper exercise of their powers. There is no more delicate position than that of an officer of a church who exercises- such functions as these. Every man loves his church ; every man feels that he will almost lose his life rather than his rights in his church, and if there is anything in this world calculated to arouse a man's feelings — and laudably so, for it is between him and his Grod — it seems to be an interference between him and his God, or the worship of his God, at all events. There- fore, I say it is that men's feelings are always seen on matters of this kind, and persons in office in a church should not step* out of their duty and deprive people wrongfully of their rights in the church. If they do, they should be so deterred that they shall not^do it again. There is nothing more unseemly than a congregation at variance among themselves. It seems to be at variance with the iDrinciples and doctrines inculcated in the church — with the life and doctrines of the blessed Saviour they go there to worship. We should do everything in our power in adjudicating cases of this kind, to prevent these difficulties arising, and if the result of this judgment should be such, that these difficulties which have been so Btrr>ngly pointed out by 95 .'i His Lordship, the Chief Justice, (which, I say, have not arisen in this case to justify the action of the Trustees) should become apparent, all I can say is, if the laws of the Church of Scotland are noi; sufficiently elastic to meet these cases, I am perfectly sure the right has never been refused to any church (in our province at all events) to make such rules and regulations for the management of iheir affairs as a body, as they may think right and proper, and may to the legislature seem reasonable. Regretting I am called upon to adjudicate upon this case ; regretting the observations which, in the solemn discharge of my duty, I am called upon to make, I trust that all those parties will re-consider this matter and that it will lead to an amicable arrangement among them. I believe this man had the right, when he had the pew for one year, to keep it so long as he continued paying pew rent iu advance, unless indeed, some good cause v/hich it is not necessary for me to specify, should be shown for depriving him of it. I will not say there may not be many matters referred to by the learned Chief-Justice which might not be sufficient for suspending him. I do not say that might not be done, but'it is sufficient for me to say nothing- appears in this case that warrants the Trustees, in my opinion, in depriving him of the right to have that pew when he was willing to pay for it annually in advance. Under these circum- stances, I think the judgment of the Court below should be reversed, and the Defendants in this case should be condemned to pay $300 damages, with full costs in all the Courts. ^1 '''1 I, .> !i -I 96 I V r. in ^M. ill m ZFIISTA-L IDEOI^/SE >V' OF THE Supreme Court of Canada. In The Supreme Court of Canada, Thursday, the ) Twenty-eighth Day of June, A. D. 1877. \ ■V Present : I Btampi. j The Honourable The Chief Justice. ♦» •' Mr. Justice Kitchie, ; " " Mr. Justice Strong, " " Mr. Justice Taschereau, "*> " Mr. Justice Fournier, " " Mr. Justice Henry. JAMES JOHNSTON (Plaintiff), Appellant, -.■^^..r^v ■, -. ' M . -■■ Slid -:'■ .:^:. -■ " '': THE MINISTER AND TRUSTEES OF ST. ANDREW'S . CHURCH, MONTREAL (Defendants), - - Respondents. The appeal cl the above named Appellant from the judgment of the Court of Queen's Bench for the Province of Quebec (ap- peal side), rendered in the above cause on the 3rd day of Feb- ruary, A. D. 1875, affirming the judgment rendered in the Supe- rior Court for the said Province, sitting at Montreal, in the District of Montreal, on fthe 30th day of December, A. D. 1873(, having come on to be argued before this Court on the 16th, 17th and 18th days of January, A. D. 1877, in presence of counsel as well for the Appellant as for the Respondents ; whereupon and hear- ing whc-t was alleged by counsel aforesaid, this Court was 9T pleased to direct that the said appeal should stand over for ji .'^- ment, and the same coming on this day for judgment, this Co» rt did order and adjudge, that the said appeal should be, and the same was, allowed, and that the said judgment of the said Court of Queen's Bench for the Province of Quebec (appeal side), ren- dered on the said 3rd day of February, A. l). 1876, in the said cause, and also the said judgment of the said Superior Court for the said Province, rendered on the 30th day of December, 1873, in the said cause, should be, and the same were reversed ; and this Court further orders and adjudges that the said Respon- dents should be, and they were condemned to pay to the fiaid Appellant the sum of three hundred dollars ($300) current money of Canada for damages, together with the costs incurred in the said cause by the said Appellant in the said Superior Court fcr the Province of Quebec, in the said Court of Queen's Bench for the Province of Quebec (appeal side), and also in this Court. Certified. (Signed) ROBERT CASSELS, Jr., I R. S. C. C. :J4yv,^^«i^: -*^:;i -$.'■^4 Ih ■lli^i -X.,-i i I Ill 1 1 1' ' *•. 08 vi; APPENDIX. Ui I'S Extract Jrom the Act of Incorporation of St. Andrew's Church, 12 >. Vic, cap. 154, sec. 1, Canada. ** TAe Ministers and Trustees of St. Andrew's Church, Montreal,'' shall be a perpetual Corporation, and shall have perpetual suc- cession, and a C jmmon Seal, with power to break, change and alter the same, from time to time at pleasure, and shall be in law capable of buing avd being sued, pleading or being impleaded, defending or being defgnded, answering or being answered unto, in all Courts of Judicature, in all manner of actions, suits, com- plaints, matters and causes whatsoever, and also of contracting and being contracted with, relative to the funds of the said Corpo- ration, and the business and purposes for which it is hereby now con- stituted as hereinafter declared ; and may make, establish and put in execution, alter or repeal such By-Laws, Rules, Ordinances and Regulations, as shall not be contrary to the Constitution and laws of this Province, or to the provisions of this Act, or to the Constitution of the Church of Scotland, as in that part of the United Kingdom of Great Britain and Ireland called Scotland now by law established, and as may appear to the said Corpora- tion necessary or expedient for the interests thereof; provided always that three of the members of the said Corporation shall form a quorum for all matters to be done and disposed of by the said Corporation. % v. , 99 B Extract from Bi/-Laios of St. Andrew's Church, Montreal. Article I. This Church and Congregation, now in connection with the Established Church of Scotland and adhering to the standards thereof, declare that they shall continue to adhere to the said standards, and maintain the form of worship and governrient of said Church. Article X. Any person who shall lease a pew from the Trustees for one year, and pay the rent in advance, shall be considered a pew- holder ; the rents of pews and sittings are to be paid annually in advance from the first day of J anuary, and are considered to be then due ; the current year is included when in these By-laws it is stated as a qualification that the individuals must have paid rent for three years, and are members of three years' stand- ing, &c. 1*11 ■I r c Plaintiff's Exhibit. C— Receipt for Pew Rent for 1872. St. Andrew's Church. • ' ' t ■ No. 1. . $66.50. ,.: ... Montreal, Jan. 9th, 1872. Keceived from James Johnston the sum of sixty-six ^ Dollars, being rent of 1st class pew No. 68 in St. Andrew's Church, Bea- ver Hall, for the year 1872, V: ,(,, < I v'v , . 'V " For the Trustees. • - > J. CLEMENTS. 4i yds. carpet, $4.68.— $71.18 St. Andrew's Church. il' II 100 D Resolution oj Meeting of ^th November , 1872. Resolved. — " That in view of the fact that Mr. Johnston cannot *' work harmoniously with the minister and his brother elders, he *' be requested to resign his office as elder." E Extract — Resolution of Trustees oflth December, 1872. Resolved. — " That in order to sustain the action of the congre- " gation taken in regard to Mr. James Johnston at its meeting, on " the evening of the 4th November last, the trustees do now " decline to let a pew to Mr. James Johnston for the next year. Carried. Mr. A. Buntin dissenting." Plaintiff's Letter in Answer to Resolution of Trustees ; 10th December, 1872. Montreal, 10th December, 1872. James "Wardlow, Esq., - Secretary of Trustees of St. Andrew's Church, Montreal. Dear Sir:— - I received your letter of the 7th inst. (yesterday), informing me of the action of the trustees regarding my peW in St. Andi'ew's Church. In answer thereto I have only to say that I desire to again lease the pew I now occupy for the coming year, as Miss Pollock, Miss Johnston, Mrs. Johnston and myself, " members in full communion," and family, are sitters in it. I am, Yours most respectfully, (Signed) J as. Johnston. 101 G Defendants' Acknoivledgment of Plaintiff' t Letter. Montreal, 11th December. 1872 James Johnston, Ewq., Montreal. Dear Sir : — I beg to acknowledge receipt of your letter of the 10th inst. I have handed it to the Trustees. I am, Yours most respectfully, (Signed) James Wardlow, Secy. St. Andrew's Church. li H Defendants' Answer to Plaintiff's Letter of 10th December, 1872, 1* ' dated 12th December, 1S12. Montreal, 12th December, 1872. James Johnston, Esq., Montreal. Dear Sir :— I am instructed by the Trustees of St. Andrew's Church to Inform you that if Mrs. Johnston, Miss Johnston or Miss Pollock are desirous of leasing a pew in St. Andrew's Church, the trustees will be happy to lease them one. Your obedient servant, James WardloWj Secy. St. Andrew's Churcli. ; ! \ I' w 102 K Extract from Minutes of Annual Meeting of the Congregation ofH^th . * . . • December, 1872. Moved by Mr. ThomiiH Darling, seconded by Mr. A. "W. Ogil- vic, " That this meeting objoct to tho action of the Trustees in •' notifying Mr. Johnston that the hmse of his pew for tho year '• 1873 will not be renewed, })ocause such action is calculated to *' interfere with the free and conscientious expression of opinion " of the members of this congregation upon matters that may be " brought before them." It was then moved in amendment by Mr. Andrew Wilson, seconded by Mr. Joseph Hickson : '• That tho action of the trustees in refusing to lease a pew to " Mr. Johnston be approved of." — Carried. Forty for tho motion and four against it. Mr. Johnsons Tenders and Protest of Rent 27th December, 1872. — Notarial Protest of Plaintiff against Defendants, demand of continuance of pew, and tender of rental ($60.50) for year 1873. 2nd January, 1873. — Renewal of Notarial Protest of Plaintiff against Defendants, demand of continuance of pew, and tender of rertal ($66.60) for year 1878. Dejenda^ds' Letter of ^th March, 1873. Montreal, 4th March, 1873. Sir! It having been brought to the notice of the Trustees of St. Andrew's Church that you removed the books out of the strangers' pew, the Secretary was requested to write to you, t08 doBiring you for the futiiro not to remove the hooks plat cd in thiH pew by the Trustees for the use of strangers. Yours truly, J. "Wardlow, Se»y. St. Andrew's Churrh. To James Johnston, Esq., Montreal. J. Wardluw, Ksq., Sir: N Vlaintig'i Amwer of ^th March, 1S7.'}. MojTTREAL, Gth March, 1873. SoiTOtary of St. Androw's Chni-ih, Mutitroal. I am in receipt of your letter of the 4th instant informini^ me that it is the wish of the Trustees that I should not remove the books placed in what y^u call "the Stranger's pew" in St. An- drew's Church. I wish to inform the Trustees through you that I hold the pew which I now occupy, and have hitherto occupied, under the Con- stitution and By-Law of St. Andrew's Church, and that while 1 am willing as I have alwuys been to accommodate with a sitting in my pew, persons* who may come to the church to worship, yet I reserve my right of absolute ownership therein. Furthermore, I wish to express my unqualified dissent against the Trustees placing any placards on my pew, as they have hitherto done, viz., by putting a placard on it with •' For Strangers " printed on it or otherwise, and I also dissent against the sending of the cushions, &c., used by myself and family in said pew with a carter to my warehouse. Such conduct on the part of the Trustees, I regard as calculated and intended to bring me into contempt and ridicule not only with the congregation of St. Andrew's Church, but with my partners, employes and the public generally, and which I am determined not to leave pass unnoticed, and must in the meantime characterize it as unnchristian and contemptible. I am, sir, yours respectfully, Jas. Johnston. 104 p • r H Jz; t-^