TOME X

DE LA PROVINCE DE QUÉBEC, 33 sent, that he has attended St. Andrew's Church, ever since 1867, sun- B during all which time he has leased and ne one or r the more pews in it: that, from 1st January, 1872, to the 31st of any ne cember of that year, he was the lessee and “holder of pew d in 1° 68, paying annual rent for it, to the amount of 866,50 : tious that he was, therefore, a pew- holder, under the 10th by-law r the of the corporation of the church, and held under à verbal 1, the lease ; t'at, on the 7th December, 1872, plaintiff received 1872, notice from defendants that they declined to let him a pew That M for the following year: whereupon, he addressed to them a nernl letter expressing his wish to renew the lease of his pew for ceed- another year: but, being again informed that he conld not # the M vetit, he caused a tender of 866.50 to be made to the tren- > aC- surer Of defendants, as rent for the year to come, which was,

nitted however, refused ; that officer further declining to let plaintiff dants D à pew for any sum whatever. Suosequently, on the 27th

pew, M December, he again, through a notary, tendered the money, » the Band required delive ery of the pew, and again met with a

inter- refusal ; that, on the 2nd January, 1873, pew rents being 4 and Æ payable annually in advance, plaintiff repeated the same him- M request, with the same result ; that, notwithstanding these

s: and M refusals, plaintiff persisted in attending the church, and, d faith sitting in pew n° 68, on New Years Day, 1873, and occupied | regu- it for the first ten days of the month, without any interrepli- M ference by defendants ; by which the lease v was, as plaintiff

ent to Mcontends, renewed by fucite reconduction ; that, after the

nts, by Mfirst ten days of the new year, during January, February, ON. J., March and April, defendants maliciously disturbed and )oRION, Mino'ested plaintiff in his enjoyment and occupation of pew , SaN- En 68, which, however, he continued to hold under most disagreeable circumstances such as having his books re-

perior mo ved, and others put there for the use of strangers ; having

the cushions and hassocks sent down to his office, having

ew- Bstrangers shown into his pew, and having a printed placard r 1873, Mvwith the words, “ for strangers,” stuck upon it. The plaintiff of his then proceeds to say that, notwithstanding all these things, d, and he persisted in occupying his pew, up to the bringing of his om he action, in June last. He then reverts to something that had

stances bainful.

œ, wheolutely ht. I

ccurred in March, 1873. The books that had been put in the pew 68, for the use of strangers, having been removed by Johnston, he shortly afterwards got the following letter from he Secretary of the Church : “Sir, It having been brought o the notice of the trustees of St. Andrew’s Church, that you

legal Bemoverl the books out of the strangers’ pew, the Secretary intel-Bvas requested to write to you, desiring you, for the future,

s, and

ot to remove the books placed in this pew, by the trustees, resents

or the use of strangers. Yours truly, J. WARDLAW, Se-

cetary.”" Up tothis point, in the recital of the plaintiffs wrongs, it is quite intelligible that he contends for two things : 1st, that he was lawfully the tenant of pew n° 68, after the 1st January, 1873 ; and, 2nd, that defendants, being without right in what they did, moreover, did it in a vexatious manner, entitling him to greater sympathy, and heavier dameges. If they really were, or even if he thought they were wrongs that he had to compluin of (which is the one question to be hereafter considered), it is quite conceivable that plaintiff should deem himself entitl:d to complain of them; but it is not so easy to understand, under these circumstances, why he should continue to complain that, having

received the Secretary’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 #ds still further to set up in his declaration, that, afce: sain on the 7th of May last, he wrote still another letter to defendants, and that they have not even taken av notice of that. So that we have before us, on plaintiff”s side, a: asser'"on of right on his part, and of a violation of it by defendants, “ot only by what they did, but by what they refrained from doing. They once let him à pew in their church, for à year, he says, 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 considered their right, defendants put out his books, returned

his hassocks, and stuck 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 Johnston ejected the books, he has a right to complain of them for writing him a letter on the subject; and when he writes to them he has an equal right The defendants encounter this action by pleading, 1st. that plaintiff was not lessee of the pew n° 68, after 31st December, 1872, and they had à 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 euch year, and for one year only, and defendants are under no obligation to continue the leases, nor is there any continuation of them without their consent, nor any

notice required of their termination. 3rdly. that the notice ofh$ the 7th of December was unnecessary : and plaintiff frequently acknowledged 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

to complain if he gets no answer.

of peace :

not to re-] been ratiti 25th Dece and admit defendants and expre that I take dence, and sarily. I the power time fully { that I inti Was in real

“ Had the « had, plainti such exerci they had n giveit, If, legally in th With it, it is else’s proper let or for th.

gave this pe the terms o defendants x that defenda pew would tr tionable, TI determinatior serve to char fact itself, ” the pew he « let to him aft dants could s the nature n against their lcase ; that it as long as he prescribed by him know tha.

but that he d j Some days, the season of peac.

assert their rio that they acqu but he is soon l

ds wo 68, ing pus ner hey one ble \ of ciring eon À ting He and any 1p in last, they have part, they ce let ng as hold conrned s for were only nas à the right unter ee of had à that, 1, the dants there + any ice of ently

ani

reise gake

of peace and harmony in the congregation, they determined not to re-let the pew to plaintiff ; and their determination has been ratitied by the congregation, in general meeting, on the 25th December, 1872, at which meeting plaintiff participated, and admitted he was without right to the pew. 5thly. the defendants put in issue the truth of the plaintiff’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. I 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 opinion that I intinated 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, plaintiff cannot complain that they exercised it, unless such exercise was a mere cloak for express malice ; and, if they had noi, all the best motives in the world would not giveit. If,after the 1st of January, 1873, pew n° 68 was legally in the possession of defendants to do as they pleased with it, it is obvious that they might put out of it anybody else’s property that they found there, and might placard it to let or for the use of strangers ; but, if, all this time, the law gave this pew to plaintiff, as a consequence of the nature or the terms of his previous lease of it, acts of ownership by defendants would be unauthorized and offensive. The fact that defendants gave notice, on the 7th of December, that 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 tiie fact itself. The plaintiff knew, on the 7th of December, that the pew he occupied in St. Andrew’s Church would not be let to him after the expiration of the year, as far as defendants could settle that question. He must then relÿ upon the nature and terms of his previous contract to hold it against their will; and he does so. He says he had a verbal Icase ; 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 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-eminent

season of peace and wood-will, defendants would not openly assert their rights, 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

RARES 1 nly exercise seusonuble forbearance on their part, they er Le eine ownership, and give him plainly Sade Le are

ie ie 71 lointi tt st shew that he td LISUL, co e » intiff must she no right there. The p'a “emipéd:lahe0: dt.

ith ; 1st, by the express terms of an unexpired de A % ù “by the tacit continuation of it: or gray, by di l 2nc ) à | Dha intiff produced.

and PO usage of the church. ‘The plaintift ee RAT: at the enquête, on the 4th November, three Fan “à sas Re qe , The me give 5 ist of exhil lescribing them. ‘The na g SR list of exhibits à A have to look at what they mak EE Ar lie PAC Fe ; É f, as between these 0 , ) Nil 7 1Ke proo ; di , ot ; and they undeniably mi DA proof of; a ey ur ‘ ssively three pews fro Le À rented successivels à >arties, that plaintift rente Ps servable in Nndante So much is this the case, that it a which the words of the descriptive list of a fr " paper FA ÉEME : . nishes * calls the frs ANT mself furnishes, that he L : 1869 plaintiff hi AN TR NE ‘8 Church, for the year 1869. “ ndrew’s Church, euse for pew 68, in St. FSC de ‘n, and Thon ne à “ Jease ” is barred by a stroke of Le . "nt \ + $ the word ‘“ receipt ” is substituted. Fe 4 rs ti n ha set near. ifest. The plaintiff, in his declaration, had : ation is manifest. The p , | Rabiho out that he held under a verbal lease, and to SRE AU held under a written one would have bound pi . L rever this may Le, the fact or series of acts is es But however his may Le, ül 1869. for bew n° 68 For the lished. He paid pew rent in 1869, for F 1871, there is proof car 1870, no payment is proved: but, . 14 1872, there of the payment of $66.50, for pew n° 66; and, in 1872,

Ï or ° 68, which is also proof that he paid the same sum for pew n° 68,

i i t recci ated Janis the one he last occupied. This last reccipt En uary 9th, 1872, acknowledges receipt of the os ne for rent of 1st class pew n° 68, in St. Ac r'eu 8. pu : Beaver Hull, for the year 1872.” If this : of “a ee

21 01 2 % t A ; ER x à s) i i the parties (at least as far a g the intention of the p ue Me would be difficult to say what does ne ne as 1 st necessarily exclude, unc at it must necessarily ex , not mean to say that M MANN dE circumstances, positive and clear proof, of an invari is es itling plaintiff to a renewal of the lease on eue RE i stion ; and, in the absenci terms ; but that is a separate Eee HS dde 9 9 . 0 . 1 wW c ] à , this usage (a poin pres of legal evidence of ue pe notice) this paper, whether called “ lease ” ot Une Ne 1 s L- Cr clusively shows that the money was an O1 pe ne à 2 1 j 16 D )€ 4 thing that was given, viz: the enjoyment of the pe aa eur 1872, and no longer. We must then App He LL ] . 0 ° à Q-4 : € à à g à SON in such case, is found in Art. 1658 : e ie . written terminates of course, and ne Sa expiration of the term agreed sos 2 Lin ue ot je 4 ase, The O Lucie 7Teco l .. LL terms ot the lease. Then, as to pr LE ue pretension is equally unfoundeil. ia ARE net ) LU LV 1 ) \ under a presumption « Le reconduction, except 1] pbs k both parties, ‘and the very contrary is made decisively app à ,

rent by t plaintiff b though in decisive, c plaintift is usage of t] pletely fai nization li certain r'eol It sprung, and all its things tha inc rporate voverned, a done. The that, in fes to renew |( IS a very d renew them gation has h time x disc in the prese right under relieved frorr I entirely f According t« décline notie shall do SO, concerned : b may not be general princi inateria, LT w in LSG8, by that State, I:

Poration of re questions whi,

: the ecclesiasti

with which th all those chur the colony bei ciple will be f of the States in the case of ] 10 Eq., 178, th nation of the m Party is à volu cases of dispos

lis ht, ot, aw ed, ha ese ake \ese on ein aich A 69.” and \ter- | set the JS.

stabthe proof here rhich Janein arche, ce of s) it I do r all sage saine sencé ntly conbcific r the law e, if r the this acite

nt of

Lppi

rent by the notice of the 7th of December; the fact of laintiff being suffered, at New Years time, to sit in the pew, though in the absence of notice, it might be important if not decisive, can have no weight under the circumstances. The plaintif 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 orgunization like this one, exercising corporate powers, under certain regulations, with the Church in Scotland from which 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 were obliged to shift for ourselves, and get incorporated and agree among ourselves how we should be soverned, 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 Jeases, as long as the rent is paid in advance,

is a very distinct thing from the invariable obligation to renew them in all cases. It merely shows that the congresation has hitherto been harmonious and that this is the first time à discordant note has been heard. I hold therefore, in the present case, that defendants have established their rivht under the terms of the lease, and I am therefore relieved from considering their reasons for exercising it, and ['entirely fail to see any indication of express malice. According to this view of the matter, [ ought properly to decline noticing this subject any farther; and T certainly shall do so, as far as the merits of that question are concerned ; but, 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 muteria, L would refer to a book published in New York, in IS68, by Murray Hoffman, upon the ecclesiastical law of that State. It treats of questions connected with the incorporation of religious societies under the statutes of that State, questions which, the author observes, are often influenced 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 the revolution. At pages 275-6, the principle 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 Steven, in the House of Lords, L. R,. 10 Eq., 178, that courts will not interfere with the determination of the majority of the body of which the complainin

party is à voluntary member, except in certain strictly defined cases of disposal or misappropriation of property in trust:

38 RAPPORTS JUDICIAIRES REVISÉS and it is only when civil rights as to property are involved that the secular tribunals will examine so far as to see that the fundamental rules of law have been observed. These principles have guided me in disposing of the present case : and having satistied myself that, under the law applicable to the terms of his leuse, the plaintiff has suffered no violation of his right, his action for damages for such violation must be dismissed with costs.

Here follow the remarks of the Judges in appeal :

Ramsay, J. dissenting : This appeal is from à judgment of the Superior Court, dismissing an action of damages brought by appellant against the respondents for refusing, without justifiable grounds, to allow him to continue in the occupation of pew No. 68, in St.-Andrew’s Church, in this city. The respondents, defendants in the Court below, are a corporate body, under the terms of an Act, 1849, 12th Vic. ce. 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 recognized by that preamble, was the congregation worshipping in a church commonly called St. Andrew’s Church, situated in St. Peter Street, Montreal, and destined “ for the public worship and exercise of the religion of the Church of Scotland. ” As they were not a corporate body, they acted by two sureties, the late Alexander Rea and William Hunter, in whom the property 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 whole congregation, other trustres were appointed for holding the said property along with the said William Hunter, the then surviving trustee. From time to time the congregation named other trustees till at length the trust appears to have centred in the Rev. Alexander Mathieson, D. D., John Smith, John Boston, William Edmonstone, John Frothingham and James Gilmour, 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 legislatively established is not without importance, for the dispositions of the Act are not perfectly clear. By section one it is the minister and trustees who are incorporated and they have the power to make, alter and ameni such (sic) by-laws, ordinances and regulations as shall not be contrary to the constitution and by-laws of the Province, the Act of incorporation, or to the constitution of the Church of Scotland as established by law in Scotland. But in spite of this disposition of section one, it does not appear the minister and trustees constituted the whole corporation. In other words corpora-

tors" rights ter and Tr porated est above ment corporatiou moval and « cies occurri!

who had in ning who tl the general the offices o by such pers the propriet said Church vened as he meeting is t the death, où and how it Session and members of :

meeting is tc evidently of at least, one church ;: and rent for thr These truste With the chu said whether which appea sections 6 an us having rig nion with th holders not i in arrear of years, The ec enough, but v It seems to n tending the s4 the preamble tained by the Congregation pewholders, 9 und regular s books, collect

| defined exten

bers of whic of their relig

ed at se se :

ion ust

, Of by sti- \ of ON dy, pr'eing sul" V CORgin d in NOT'nd.” ties, the said

tors’ rights existed elsewhere, which really reduced the Minister and Trustees to the condition of administrators of the corporated estate, and legislators subject to the threefold proviso above mentioned, They were not limited by the objects of the corporatiou only, but they were subject to deprivation by removal and other causes, and they could not fill up the vacancies occurring, There was then a body superior to them, and who had inalienable rights. There is some difficulty in defining who their constituents were. Section 5, which describes the “general course of proceeding with resvact to the filling of the offices of Minister and Trustees, says * 1t shall be supplied by 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 arrenr of pew rent, at a meeting to be convened as hereinafter mentioned.” Section 6 enacts how the meeting is to be convened in case of the vacaney happening by the denth, 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, pewholders and members of the said church, nt in arrear of rent. ” And this meeting is to elect à committee of nine, by a plurality of votes, evidently of this meeting, of which six shall be proprictors of, at least, one years standing, in full communion with the church ; and the other three may be pewholders, who have paid rent for three years, in full communion. Section 7 enacts : These trustees shall be chosen from Proprietors in communion with the church, by proprietors not in arrear of rent. It is not said whether communicants or not. Setting aside section 5, which appears to be needless, and looking at the dispositions of sections 6 and 7, we find several persons recognized by the Act us having rights. Proprietors of one year’s standing, in communion with the church : proprietors not in arrear of rent ; pewholders not in arrear of rent : members of the said church not in arrear of rent ; pewholders who have paid rent for three years. The condition of proprietors and pewholders 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 sustained by the 12th by-law, which isin these words, “The term congregation in these by-laws implies the proprietors of pews, pewholders, members of « full communion with the Church und regular sitters, whose names are entered in the Church books, collectively.” We have, then, a body of somewhat un-

| defined extent, having rights in the corporation, and the mem-

bers of which are chiefly distinguishable by the community of their religious belief, and from the fact that they worship

together, The appellant, plaintiff 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 publie worship and exercise of the religion of the Church of Scotland, and incorporated under the name and style of “ Ministers and Trustees of St. Andrew's Church, Montreal.” In addition to this, he was pewholder in the said Church, and not only 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 1849, which spiritual office is held by that law «dd vitæm, or ad culpam. He was, therefore, indisputably à corporator, and, as such, had common rights with the other corporators, subject to the statutes and the by-laws. L may here add that it is not for à moment pretended that his position as a worshipper, as a communicant, or as an elder, could he in any way lawfully affected by any action of the Trustees; in fact it is clearly established, and unquestionably the law of the Church of Scotland, recognized by the acts of incorporation, that in matter of conduct he was only amenable to the kirk session. But is it contended that the Trustees could refuse à member of the church, already à pew-holder, he not being 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, according to the rules and by-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 had no

remedy ; and though something new like this was advanced À

in the pleas and at the Bar, this extreme position was not at

first unequivocally taken up, nor does it appear to be conti- Bs

dentiy 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 tru- tees do à

now decline to let à 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 bon«a fide reason, it becomes necessary to enquire what the action of the congregntion 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 alter explains t] of the Cha considerab That, in x harmoniou:

resign his Trustees, ir resign as a the Sir Tu -s. A on them foi another enc the present of the me Mr, Johnst:

whom app others, it w short, it lo appellant 2 offended :

speakiny, if 4th Novemb resign his E him i to it, not: \t, o whi iwh Elder, Mr, I letter to Mr.

for his wife!

sake,” to be directed : agro Mr. Laing le would be a least of de would have overcome, U tées on the 7 pleaded in t] desire to sus appellant dic Elders,” but had become No. 68, to t Ist January pretension of Member of th

18 à and iber and COT'tees wus Aary fthe itual ectlv land, held force, ights 1 the inent icant, y anv |, and nized et he ended iurch,

ility,

paid are in if the

*eason t was ngre-

ny as

to an ultercation which took place at the meeting, and which explains the latter part of the minute, und the observations of the Chairman. The minute then goes on to say that, after considerable discussion, it was moved, seconded, and resolved : That, in virtue of the fact that Mr. Johnston has not acte harmoniously with his brother Elders he be requested to resign his position as Elder” The motive, then, of the Trustees, in refusing appellant à pew, was to force him to resign as an Elder, No one will, for à moment, pretend that the sing of Elders was a portion of the duties of the Tri s. and they were, therefore, using the power conferred on them for one purpose, arbitrarily and vexatiously, to gain another end. What renders this peculiarly objectionable in the present cnse, is the fact that the Minister, the f‘hairman of the meeting of the 4th November, who denounced Mr. Johnston to the meeting, and who was the person with whom appellant had an alterention 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 oflended a Trustee. But their excuse is no better, legally speaking, if deprived of this suspicion, for the meeting of the 4th November had no more rights to summon appellant to resign his Eldership than the Trustees had the right to coerce himitoit, It may not be altogether without importance to not it, on the &th November, four days after the order whi iwht to compel appellant to resign his position as Elder, mé Laine, the chairman of both ‘ineetings, wrote t letter to Mr: Johnston, urging on every possible PRE EE for lié “wifes s sake, for his own, and above all ‘for his soul's sake,” to bend before the storm which Mr. Laing himself had directed against him. We have not to enquire whether Mr, Laing feared that a new prosecution in the kirk sessions would be as fruitless as on à former occasion ; but, to say the leust 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 appelant did not work “harmoniously “with his brother Elders,” but they say that, “{o the best of their judgment, it had become undesirable and inexpedient to let êhe said pew, No. 68, to the plaintitt for the year commencing the st January 1873.” This plea, then, is à return to the pretension of the respoudents 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 evidence of all the squabbling which took place (the rights and wrongs of which it would perhaps not be very easy to balance), and we have superadded alleged improprieties of conduct of Mr. Johnston in Church, not ‘alleged, not ainount-

ing to a great deal, and which, even if they had been more important, were not within the jurisdiction of the trustees, but of the kirk session. The respondents” argument at the bar amounts to this: That a church in a colony is nothing more than a voluntary association, 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 he understood it. In support of this new, and as even a more extreme case, the case of à member recently expelled from & London club was cited. It is not altogether easy to seize the precise value of “a voluntary association” as an absolute term: but it seems to me to be singularly infelicitous when used to signify the association of persons for religious purposes. Not one man in x hundred chooses his religion, and consequently I cannot see any kind of analogy between the tie that binds coreligionists together, and that which exists between the members of a social club. The case of à man being refused a box in à theatre would have been more near the question from the respondents’ point of view. But even if applicable, the club cases do not bear out respondents’ pretensions. All that has ever been said is that, in a club established for social purposes, a member may be expelled according to the By-Laws and in good faith. In the first of these cases reported, Hopkinson vs The Marquis of Exeter, L. R., 5 Eq, 63. Lord Romilly said, p. 67 : “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 for which they are designed are social, the others are only secondury. It is, therefore, necessary that there should be à 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. It follows that a club is a partnership of a kind different from any other.” The master of the roll then goes on to show that the nature of such a partnership required the existence of à by-law of à very stringent nature for the removal of objectionable members. The case of Bichardson-Gardner vs Freemantle, (Fisher's Dig., Vo. Club, sec. 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 be decided that they have oxceeded

their poy the laws the paris, systein, a according 1826. Bt congregat foresight matter, | among its approved to cet rid against hi that the ti discontinu then, in t] even, the be the by dents felt :

excluded 4 denied hin pretext. 4 ad vantages pew while à new com already sai some respe respondent ing trivial, the merit orders his because he decline to l to resign.

what shoule the club ? « permitted t and pick biscuits, but you have n

à potato.” Ric into the m

than that ( To contend

dthe church,

merely to av

Lation, open

have ights sy to es of ountmore stees, + the thing mbers body, ast S0 ; more rom & ze the solute , when ligious nn, and en the exists a man ‘e near even if ndents a club xpelled first of eter, L.

re very n who iterary he Conets for 1ly secà good thing g that a partof the artnerringent case of Club.

,howof the ceeded

their powers, and that no conclusion can be arrived at from the laws and usages of the Church in Scotland, because, for the parisa churches, the seats are distributed under a parochial system, and, in the chapels of ease, the matter is regulated according to a model adopted by the General Assembly in 1826. But can it be maintained seriously that, because the congregation of Saint-Andrew’s Church has had so little foresight us not to reduce to writing a special rule on this matter’ we are, therefore, to presume an understanding, among its members, of à system which never could have been approved by reasonable people. However desirable it may be to get rid of Mr. Johnston, it is evident that those who are against him, would hesitate to affirm a resolution to the effect that the trustees might, at their discretion and without cause, discontinue the lease of à 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 by-law, common to all, and cause together. Respondents felt their weakness, and they say that they have not exeluded appellant from w-ship, and thut they have only denied him a pew. It seems tome this is x disingenuous prétext. 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 fultilled the conditions imposed in reference to a new comer—@ fortiori in preference to strangers. I have already said that I thought the illustration of a social club in some respects unfortunate, but as it has been selected by respondents to maintain their position, at the risk of appearing trivial, [ shall give an example which has at all events, the merit of being entirely in point. A member of a cluh orders his dinner. The committee want to get rid of him, because he had a quarrel with a popular member, and they decline to let him have his dinner, so that he may be induced to resign. Would not an action lie for this trespass ? And what should we say of a defence of this sort on the part of the club ? “We never expelled you from the club, you were permitted to wander about the club, read the news-papers, and pick up a precarious subsistance from the plate of biscuits, but we are not obliged to give you dinner, becaus?2 vou have no vested right in any particular mutton chop or

& potato.” Ridiculous as this case may appear, the answer I put Linto the mouths of the club committee, is not more absurb

than that of the corporation of Suaint-Andrew's Church. To contend that if Mr. Johnston had not been driven from

the church, other persons would have left it, seems to me

merely to avow that there were other people in the congre-

gation, open to the same kind of reproach the majority had

directed against Mr. Johnston. To resume then, the assertions that Mr. Johnston had interr upted the services of the church, had insulted the clergyman, and not worked harmoniously With his brother elders, are neither here nor there in this suit. If the Trustees are irresponsible. they are of no consequence, and if they have to justify without a decision of the kirk session their opinion was 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 à par with the whole proceedings of the Trustees. The word lense is certninly used through the action, and a point is made that appellant had tacite reconduction. It is plain that there was no contract of ordinary lease, and that the law of tacite reconduction does not apply ; but the action does not necessarily depend on that. The whole storv is set forth in the declaration, and that is all that is required in our system of pleading. Appellant expressly says that he was à corporator, à pewholder for yeurs, and à member of the kirk session; that he had had pew 68 for the current year; that he desired to continue and tendered the rent in advance, and that the plaintiffs knowingly and maliciously, and in order to bring appellant into contempt, refused to let him have the pew. The 1espon-

dents 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 usage of the said Church. (The by-laws do not touch the matter, and the usages and customs of the Church were against them.) They ple: ad that it had become undesirable and inexpedient to let the said pew to appellant (not less à special excuse because à bad one), and they conclude by avering that “in the whole they acted in good faith and in accordance with the practice and 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 x question of pleading? And if it was only à question of whether the lease of a pew was à common loase 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 ? It is not too plain that this illegal evidence was dragged in to bolster up an impossible justification ? [ trust no one will be deluded by this shallow artifice ; what this cause in effect decides is that every member of every congregation holds his pew at will of the trustees or the churchwardens. T 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 conduct was not such ans to entitle him to any exemplary

danages.

to be illeg obstructive that he ha words use which coul Mr. Laine reverse of Mr, Laing manœuvre.

without fo question I gross provo and I woul the costs of DORION, from the n that the Ti whatever t] house can :

that they, tl the propriet more of hi:

another year The trustees a voluntary : É either an im à person was contract ? It ber of the C rules of the ( pertained to !

to be turned Church, there rules of the ( altogether, bi that. It was the members,

to keep it as.

nour did not « from the Chu not the course obstructive : h

3 was another t Lthe proper au could exclude

some other CI

1ONS rch, asly this nsethe tun et to This proused had ct of does that.

js all Iant r for had and ntiffs ant spontion, D the laws f the come sant confaith and issue ssent.

nd if as il is or cenlegal etifiallow nber es or

ed to

and play

ninal.

dunages. 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 that he had called Mr. Laing 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. Laing not only of untruthfulness by saying that the reverse of what Mr. Laing had stated was true, and that Mr. Laing knew it, but he also accused him of a deceitful mancæuvre, How far such an accusation in such à place, nade without foundation, is open to ecclesiastical censure, is a question Ï am not prepared to decide; but it certainly, as a gross provocation, decreases the appelant’ s right to damages, and I would give him 505. and costs in the Court below, and the costs of his appeal.

DorioN, €. J., said he had also the misfortune to differ from the majority. The contention of the respondents was that the Trustees are the proprietors of the Church, and do whatever they please with it, Just as the proprietors of a house can ; and that they can say any year to the pewholders that they, the trustees, will not lease pews to tliem, just as the proprietor of several houses may give notice to one or more of his tenants that they rannot have their house for another yeur. His Honour could aot come to that conclusion, The trustees are, no doubt, the proprietors. The congregation is a voluntary association, but, like all other associations, there is either an implicit or express contract when parties join it. When a person was admittel into a church what was the impi'd contract ? It was that, as long as he wished to remain a member of the Church, and conducted himself according to the rules of the Church, he should have all the advantages which pertained to members. It was not understood that he was liable to be turned out at the pleasure of the trustees. In the Scotch Church, there was a body to judge of infringements of the rules of the Church. À man might be expelled from the church altogether, but it was not the” business of the trustees to do that. It was in evidence that the pews were disposed of to the members, and whenever à man got a pew he was entitled to keep it as long as he wished, by paying the rent. His Honour did not deny that Mr. Johnston could have been expelled from the Church, and thereby from his pew. But that was not the course adopted here. Mr. Johnston might have been

à obstructive ; he might have deservéd to be expelled, but that

was another thing. His expulsion could only be effected b

Qthe proper authorities not by the trustees. If these trustees could exclude him from St Andrew's Church, the trustees of

some other Church might exelude him from their Church, and

Mr. Johnston might have to go to Quebec in order to be permitted to attend church. There was an implied contract when Mr. Johnston joined the church. that he should have all the advantages of à inember of the church. Of course, if the

public service, his Honour did not say but that they woull have the right to take them. But he would say this: that the Trustees must admit all the members of the church on equal terms. As long as Mr. Johnston had not been deprived of his B rights as a member, he could not be excluded from his privileges as such. The witnesses stated that they knew of no in- E stance of an elder being deprived of his right to a pew. If Mr k Johnston made a disturbance in the church he could be expell- È

had a right to put Mr. Johnston out of the charch altogether if he disturbed public worship, but the evidence only referred to his having obstructed meetings, not to his conduct in church at all. He found a notice on his pew “for strangers only.” Books for strangers were placed in the pew, and he carried them elsewhere. But the real cause for depriving him E of his pew was his conduct at meetings. There ought to be a È

ment that there was tacit reconduction. His Honour did not agree with that. All the authors were agreed that à pew was

which applied to leases of other property. The word ‘“lease ”

had no possession of the pew:; nothing but the right to use it B at public worship. Therefore it was not «x property like a house,

SANBORN, J., giving the judgment of the Court:—This is B an action whereby the appellant demands of the respondents B as à body corporate and politic, the sum of $#10,000 as Bi damages. His action is based upon the pretension that he Rs was entitled to the use, as a lessee, of a certain pew in Saint:

1873, to the first of January, 1874, being pew numbered 68.8 Appellant alleges that he was lessee of a pew or à pewholder from 1867 to 1873, and of this particular pew numbered 68 during the year 1872, and that he tendered to the respondents, in advance, the rent for said pew No. 68, being 866.50. This tender was made on the 20th December, 1872B It appears that the appellant had had difficulties with the congregation, and that they had found his participation inbl the business affairs of the congregation so disagreeable that the trustees on the 7th December, 1872, resolved not to lens to appellant a pew for the ensuing year. This was apparent|l\|

church required some particular pews for the performance of Ps

ed. His Honour did not say but that the Trustees might have Bi

tribunal to regulate that. It had been contended at the argu-

not like a house. It was not to be governed by the rules Bi

was used for want of a better term, but the pewholder reaily à

Andrew’s Church, in Montreal, from the first of January,Bi

done to pr under arti person, wh and pay tl The rent advance fr then due.” verbal leas months’ no had this, h said pew, advance, à said pew books to b and strange been by tl disgrace, an for which :

that the ap whom he c control of t] Without ref the case, the lessee, and t pews in à € governed ac Church of S in the cases, as property acquire à qu purpose of 1 right which seats of a cl but is conti, Service, and to another ] to all of who the division the law of S owners, and i Church som others, such ownership in gives to the the ordinary not an ordine to the suppor

co be tract have ifthe

ice of Bi

vould it the equal

of his È

privino in-

[f Mr. À

xpell-

; have #

rether referuct in

ingers be

nd he g him o be a arguid not Ww Was

rules lease ” really use it

done to prevent appellant possessing the right of a pewholder under article 10 of the by-laws, which declare “that any person, who should lease a pew from the trustees for one year, and pay the rent in advance, shall be considered a pewholder. The rent of pews and sittings is to be paid annually, in advance from the first of January, and is to be considered then due.” It is contended that this pew was held under 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 pew, for the year 1873, having offered the rent in advance, and that he had been troubled in the possession of said pew by respondents, who had caused his cushions and books to be removed and the pew to be labelled for strangers, and strangers to be placed therein, and that the appellant had been by the action of respondents, put to contumely and disgrace, and subjected to great pain of mind and annoyance, for which respondents are responsible. It must be observed that the appellant treats the respondents as the parties, with whom he contracted, and as the responsible parties, having control of the temporalities of the church and congregation. Without reference to any incidental questions that arise in the case, the appellant’s action must depend upon his being a lessee, and the law relating to lessors and lessees applying to pews in à church like Saint-Andrew's Church in Montreal, voverned according to the laws and usages of the Presbyterian Church of Scotland, as far as those usages have been proved in the cases. It may be remarked that pews are not classed as property in the strict sense of the word. ‘ Parishioners acquire à quasi property in the seats, or area, for the special purpose of Divine Service.” 1 Bell's Dictionary, 293. “The right which is sometimes acquired by private persons in the seats of a church is not, in strict speech, a right of property, but is confined to the special purpose of attending Divine Service, and may be taken from the acquirer if he removes to another parish, and if the increase of the parishioners, to all of whom the common use of the church belongs, makes the division of the area necessary.” Erskine’s “ Principles of the law of Scotland,” p. 116. This has reference to the pew owners, and in parish churches in Scotland. In Saint-Andrew's Church some persons have a proprietory interest in pews, others, such as appellant, hold only by lease, having no ownership in à pew. As the rights, which ownership of pews gives to the owner, is peculiar, and not subject to many of the ordinary incidents of property, so what is termed lease is not an ordinary kind of lease, It is a means of contributing to the support of the 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 furite reconduction, becnuse the occupancy is only when services are held, and if from any cause they were omitted for one Sabbath at the commencement of the year, there would be no means of establishing either a holding over, or tacite reconduction. The trustees are not lessors in the ordinary sense, because the funds derived from pew rent are only received in trust for the benefit of the congregation. The droit de gagerie could not well exist or be exercised, as the lessee could not be expected to garnish the pew to secure the rent. Pothier, “ Louage ”, No. 14, Says : “ On tolère néanmoins le louage des bancs et des chaises dans les églises. On peut même dire que ce n'est pas proprement un contrat de louage, et que ce qu'on donne n'est pas donné comme le prix d'usage de ces choses, qui ne sont pas appréciables, mais comme une contribution aux charges de la fabrique.” If this is a lease, it is not one which falls under 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 lease, which necessitates the three months notice to terminate it. This was fully discussed in the case of Webster vs Lamontagne, decided in this Court, 21st September, 1874 (1). In this case there was no tacit renewal. The pew No. 68 had only been 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 be presumed to have known it without such receipt. Before the expiration of the year, respondents notitied appellant that they would not lease him a pew for the next year. This was quite sufficient, if it were treated as an ordinary lease, to prevent a contract of tacite reconduction. This appears to have been an exceptional proceeding on the part of respondents, and without grave reasons it would seem as offensive as it is admitted to have been unprecedented. The question, however, which we have to determine, is not one of taste or propriety, or even of justice, but one of right. As I shall have occasion further to remark upon the powers of the trustees of this Church, L will only say here that T consider they had, during their term of office, control of the Church property, and the

(1) Le locateur ne peut expulser son locataire qui occupe par tacite recon: duction les lieux loués, sans lui donner un congé dans les délais voulus par la loi, savoir un congé de trois mois. Art, 1609 ©, C. (Webster et Lamontagne, C, B. R., en appel, Montréal, 24 septembre 1874, Dorrox, J, EN C., Moxk,

J., T'ASCHEREAU, J., RAMSAY, J., et SANBORN, J., a sens le jugement de

S., Montréal, 19 mai 1874, TORRANCE, J., 181., 152 ; 19 J., 106.)

administr such had determine This case, to my un inquire in the appella matters ent property, stances, in or resoluti becoming claim ent respondent:

respondents such allege.

faculty ; he occupancy, f to a pew in member of ages for res No. 68: he that he is a à and we can « Presbyterian Presbyterian churches her bers and à as well from + of the Ch M originated, w + when proved law by virtue settled by the Long vs the in re Bishop decided, “ thai by law, the C any other re position, and t Lother commis:

Within their expressly or places the Pre itisin the Un as Was remar Judgment in TOME X

DE

de

to on.

the an y 1ceing are vec it of xist nish ays :

dans nent onné ppréle la inder erbal ainty nths ase of pteni- » pew paid r one lant, wn it year, bin à were tacite prograve have have en of 1er to aurch, their 1 the

> reconpar la ntague, Moxk,

administration of the temporalities of the Church, and as such had a right to rent pews, and the discretion to determine who should, and who should not, become lessees, This case, as it is presented, and the facts proved, according to my understanding of it, give this Court no power to inquire 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 cireumstances, in order to enforce mutual contracts made by by-laws or resolutions of agreement, to which all parties assent in becoming a member 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 agreement with respondents and demands of them damages for the breach of such alleged contract. He claims no prescriptive right or faculty ; he does not even claim under à three years occupancy, from which he might contend that he had à right to a pew in Saint-Andrew’s Church so long as he remained a member of the Church or congi°gation, but he claims damages for respondents refusing to lease him the particular pew, No. 68 ; he does not at all base his pretensions upon the fact that he is a member of the Church or an elder in the Church ; and we can only determine his claim as he presented it. The Presbyterian Church in Canada being an outgrowth of the Presbyterian Church of Scotland, like all other Protestant churches here, is a mere voluntary association, and the members and adherents of that Church may acquire rights, as well from the terms of its constitution as from the usages of the Church of Scotland, from which their policy originated, when adopted by them. These rights and usages when proved and invoked doubtless may be enforced by civil law by virtue of the contract of association. This was clearly settled by the judgments of the Privy Council in the case of Long vs the Bishop of Cape Town, 9 L. J. N.$., p. 809, and in re Bishop of Natal, 11 L J. N. $, p. 353, when it was

: decided, “that in places where there is no Church established

S vw

sent de E

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 members may adopt, as the members of any other commission may adopt, rules for enforcing discipline within their body, which will be binding on those who, expressly or by implication, have 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 difference, as was remarked by the Honourable Judge, who rendered

judgment in the Court below between the position of à TOME XXIV. 4

member of Saint-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 à parish, but has only to do with those who voluntarily become members of it. Where the church is affiliated with the state, and a member or adherent has rights as resident of à particular purish, the loss of which affects his legal status as a citizen the case is very different from this when no such relations exist. The cases decided in many of the United States Courts, and particularly in the State of New-York are very numerous, determining almost every variety of questions that can arise between churches and church corporations and the members and adherents. It has been determined in cases of incorporated Presbyterian churches, under a similar Act to that under which respondents are incorporated, that petitioners represent the church and congregation in the same sense as bank directors represent a bank, and have control of all the temporalities of the church and church property during the continuunce of their office. The doctrine has been well settled that the trustees and not the congregation have full control of the church property. This will be found, amongst other cases, in German Reformed Church »s Buche, 5 N. Y. Rep., p. 666, (Sanford) ; Law vs Cipperly, 7 Paige, 281. Petty & Trustees &e. vs Tooker et al., 7 Smith’s N. Y. Rep. p. 267. Hanlan vs First Reformed Dutch Church (New Jersey) 4 U. S. Digest, p. 452. Madison Avenue Buaptist Church vs Baptist Church in Oliver street, 3 Robertson, N. Y. Rep., 597. In the case of Robertson vs Bullions, Kernan’s 11 N. Y. Rep. 265, the relations and powers of the trustees of a corporation of a

the large ma

from, in oth } tages of the } doing so, the : contract or i

have assente } the judgme » dismisses the 2 MONK,J., à from his co » cxpressed th } simply state

D judement,

à) law and fact points ruisec + Mr. Johnston « Court to dec

À entitled to no

à notice, he wis

J reconduction

» days against

2 Upon the dec | trustees had

The occupatio à occupant got :

+ end of the yea

expired on th

Haware of thi

À continuation ! ofcred to pa à trustees had t] : had control ov.

Auot, who had :

he said, thougt à notwithstandir another year; he occupied t Sanctuary whe M policeman and t00k every pre Athey put up no Hpersisted in « idisturbance in t 07 that there : nomment, It wa “action of the t Nery excited me

Presbyterian church, very similar to the corporation in Suint- Andrew’s Church, are fully discussed. From the view taken by me of this case, as presented, it is unnecessary to decide whether the trustees have exceeded their powers or whether the action taken by them was justifiable under the circumstances, but if we were compelled to say whether they had the power to do what they did, I should have no hesitation to say they had. There can be no difficulty as between them and the congregation because their action was approved by the congregation. If the appellant had any remedy, it would be to assert his right as a member and officer in the church to à seat therein, as a faculty, and his conclusions should be, to be assigned a pew or maintained in the possession of à pew, not for damages for breach of a contract. But had it been presented in this form I should find great difficulty in coming to his relief. Where the church is à voluntary association and a person may withdraw from it at pleasure, so far as his civil rights is concerned, I cannot well see how it can be denied to

{ a otr'eil ily the jf à ; AS ach ted are ons and t to ionense all ring well full ngst NN. Y.

’etty 4 U.

ptist the 265, of a uintn by »cide ther ums- 1 the b say and the ld be to a o be , not preg to nd à ed to

2 the large majority of the congregation that they may separate

from, in other words refuse him participation in the advantages Of the church, and of the reasons to justify them in

» doing so, they must be the judges. Of course where there is a contract or implied contract by the constitution, to which all

have assented, the rules adopted must be observed. I think

à the judgment correct and ought to be confirmed which

! dismisses the appellant’s action.

MoxK, J., did not desire to add much to what had fallen

| from his colleague. Mr. Justice Sanborn had so clearl

À expressed the view which he entertained, that he would

» simply state the grounds on which he concurred in the

4 judgment. The court had to do simply with the question of

" law and fact raised in the case. Adhering strictly to the ÿ points ruised by the pleadings, he would remark that + \r. Johnston wanted three things. First, he wanted this

| Court to declare that there was a lease, and that he was À entitled to notice. And if there was any difficulty about the

2 notice, he wished the Court to declare that there was tacit

DRSEL QU An ns Pe SN ET SUR es

reconduction because he occupied the pew for eight or ten

1 days against the will of the trustees and the congregation.

Upon the declaration, the Court had to declure whether the trustees had à right to terminate the occupancy of a pew.

} The occupation of à pew could not be viewed as a lease. The ! occupant got a droit d'usage for à 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

Lotiered to pay the rent. This was a recognition that the A trustees had this right of exclusion, and so they had. They à had control over the temporalities of the Church. If they had Auot, who had ? Mr. Johnston recognized the right, and now M he said, though he did recognize it, he had a right to the pew, M notwithstanding the refusal of the trustees to go on for

Aanother year; and if not, there was tacit reconduction. But if Uhe occupied this pew beyond the year, he did so in a “sanctuary where it is not always convenient to bring in a

à policeman and have a fight during the services. The trustees ta)

took every precaution ; they wrote to hims they warned him ; Athey put up notices on the pew. Nevertheless Mr. Johnston “persisted in going to this pew, and he created serious

Mdisturbance in the Church. His pretensions that he had a lease,

or that there was tacit reconduction, did not apply for a

moment. It was proved that Mr. Johnston, long before the

Maction of the trustees was taken, did conduct himself in a

Bvery excited manner. It did not involve moral wrong; but he

OL Lo

was à very eccentrie 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 judgment dismissing the action should be contirmed.

TESSIER, J., concurring, considered the case as one of strict law. The plaintiff had brought an action on a lease; had he proved it? There was neither a written or a verbal lease, There was simply a receipt for rent. There was only permission to occupy.

Judgment contirmed, Dorion, C. J., and Ramsay, J., dissenting,

D. MacMasrer, Counsel for Appellant : The Appellant SRE of a tort, and asks for damages on three grounds :

ist. Because of the refusal of the respondents to lease or assign him “a pew ” in St. Andrew’s Church. 2nd. Because of their refusal to lease or assign him pew 68 for the year 1873. 3rd. Because having complied with all the formalities necessary to insure the continuance of his pewholding and the lease of pew 68, and being, according t: his contention, the legal lessee and pewholder of that pew for the year 1873, he was molested and disturbed in his use and occup: ation of it by the respondents who, placarding'it “ for strangers,” placed strangers in it without his consent and against his will to an extent to deprive himself and his family of the use and occupation of it; removed his cushions and books from it and sent them to the warehouse of his firm with a carter, and otherwise questioned his title and brought him into ridicule. He alleges that he has “by reason of all the said premises suffered loss and damages to the extent of $10,000. ” The issue raised by the Plaintiff is much broader than that to which the Defendants have attempted to restrict him, and to that to which the Honorable Judges, adhering tothe judgment of the Courts below, have restricted. The respondents by their resolution “declined to let a pew to Mr. James Johnston for te nex° year” (1873). Appellant relies upon : 1st. His right as a pewholder in St. Andrews Church from 1867 to 1872 inclusive, under the tenth by-law of the church, as interpreted by the sage and customs prevailing in St. Andrews Church. 2nd. His rights as à lessee of

pew 68 for the ie 1872, A verbal lease under the law of the Province (C. C., art. 1657). 3rd, His rights as à commoner

and corporator derived Ft his being à member of the congregation owning the church property administered by the Respondents, and Ath. His rights and privileges as an elder and member of St. Andrew’s “Church, under the constitution of the Church of Scotland. His allegations called for an adjudication upon all these points, and upon all and each of them

ww

he relied fc Plaintiffs :

to a contin duction, u Canada : th proposition pellant was Church for refuse him :

à pew for t and the cu who shall le the rent in of à pew an the first Ja (By-law 10, [Chief Jr pew 68 2” Mr, Mac fused to lea pondents co mine not to.

holder was :

vance, The | pation, and ; gresation, ‘1 son had once year to yea trustees and revert to the ing of pews t el to have cc 2 Parsons, ot referred to, ir ES aneou:

Noble v Le n’s Law the well-estat nated into co law of the Pr His lease was

(1) Sections 54:

(2) CL & Fin.,

(3) 3 Durnford (4) P. 98.

rch.

hey tly the

rict Lhe

asc.

\4 à ent-

lant nds :

sign heir 3rd.

y to pew and 2sted

DE LA PROVINCE DE QUÉBEC, 5e

he relied for the maintoinance of his claim for dumages. The Plaintiffs allegations also raise the issue that he was entitled to a continuance of his lease for the year 1873 by lacite veconduction, under Article 1609 of the Civil Code of Lower Canada ; this contention he now waives, relying upon the four propositions stated, The germ of the issue is, whether the Appellant was entitled to hold and occupy a pew in St. Andrew's Church for the year 1873, or had the trustees the right to refuse him a pew for the year, 1. The plaintiff was entitled to a pew for the year 1873 under the tenth by-law of the church, and the customs and usages prevailing in it, “ Any person who shall lease a pew from the trustees for one year and pay the rent in advance shall be considered à pewholder, The lease of a pew and sittings are to be paid annually in advance from the tirst January and are considered to be then due, &c.” (By-law 10.)

[Chief Justice RicHanRDs; “Did they refuse him a pew or pew 68 27]

Mr, MACMASTER : “ Both my Lord ; he alleges that they refused to lease him that pew or any other pew, and the Respondents contend and plead that they did ‘decide and determine not to let a pew to the Plaintiff. ?” The quality of pewholder was acquired by the payment of one yeur’s rent in advance. The by-law plainly has reference to a permanent occupation, and it is proved that it was so construed by the congrevation. The evidence clearly established that when a person had once paid his rent in advance, he retained his pew from year to year as à matter of right, without reference to the trustees and that asa matter of practice, the pews did not revert to the trustees at the end of each year. No express lensing of pews to the plaintiff is proved. The parties are presumed to have contracted with reference to the prevailing custom. 2 Parsons, on contracts (1). In doubtful cases usage may be referred to, in the construction of a Statute, as affording a contemporaneous exposition. Dunbar vs Countess of Rorborough (2) Noble vs Durell, (3) usages become consensual laws. Brown’s Law of Usage and Customs (1875) (4). In this case the well-established custom of continuous pew occupation emanated into contract. 2. The plaintiff was entitled, under the law of the Province, to the lease of pew 68, for the year 1873. His lease was verbal. No written lease is proved by the Res-

(1) Sections 543-4,

(2) CL & Fin., 335.

(3) 3 Durnford & E. R., p. 271.

pondents. He paid his rental on the 9th of January, 1872, for pew 68, and received a receipt signed by the church officer,

l'he Court of Original Jurisdiction held this receipt to be a written lease, and that the tenure expired at the end of the year 1872. “The lease, if written, terminates, of course, and without notice, at the expiration of the term agreed upon, ” (1) a simple receipt acknowledging the payment of a sum of money for a specific thing, for a specific time, signed by only one of the parties, is not a contract, much less a written con. tract, though it may be evidence of a contract written or verbal, The receipt of the money for the time specified is not in. consistent with the existence of either a written or a verbal lease for a much longer period. In this case the lease was un: doubtedly verbal, but the term agreed upon not being proved, is presumptively one reconciliable with the provisions of Article 10 of the by-laws, which seems to contemplate continuous pew tenancy, so long as the pewholder pays his rent in advance. Interpreted by usage, the term is wncertain as to its dura: tion, dependent on the payment 9f pew rent annually in ad-

vance ; but, “when the term of a lease is wncertain, or the È

lease is verbal, or presumed, as provided in article 1608 (three

separate conditions) neither of the parties can terminate it

without giving notice of it to the other, with a deluy of three months, if the rent be payable at the term of three or more months, &e.”’ (2). The Plaintiff, under the law of the Province, was then by reason of the term of his lease being wncertair,

and by reason further of the leuse itself being verbal, entitlei B

to a notice of three months to terminate. This notice he did B not receive, and the lease remained undetermined, and conti

nued during the year 1873. There are no provisions in our law à

which exempt pews or church seats from the ordinary rules of

Jease relating to houses and other immovable property. The} rules contained in this chapter relating to houses extend alsoh

to warehouses, shops and manufactories, and to all immovable

property other than farms and rural estates, in so far as they Ba (3) Pew 68 is proved to be fastened tobs

can be made to apply.” the floor with nails for a permanency. It is immovable by des:

tination (4). 3. The appellant was entitled to à pew, and coulik

not be deprived of a seat in the church, under the Act of In:

corporation (5) and the by-laws made thereunder. He was 18

(4) C. C. L. C., 379 and 380.

(5) 12 Vict., cap. 154.

member and corp Responde by the Re behoof of owned th ber of th church pr for the s:

vision ant

church.

the mere They per from any traordinai ly restrict make, esta by-laws, r!

trary to t} provisions of Scotlar Great Bri laws estal necessary ( no author which he analogy oi Justice in exeluded t 4 The Ap rights and under its Andrew's prohibited Church of Great Brit established “This chur established therec£ de.

andards # said (1 by-law 14 intended tc and forms ( then est:

obtained le

72, for officer, 0 be a of the se, and 1pon, ” sum of y only nn conor ver not inverbal "as un:

>roved, f Arti.

inuous advans dura:

in ad.

or the E

(three nute it f three x more "OvinCe, ertain,

ntitled B

he did 1 conti-

our law

‘ules of v. The

ad also

ovable B as they Bi ened th

by des-

d coull L

of In.

e was abs

member of the congregation, and had rights as a commoner and corporator in the church property administered by the Respondents, The church property wus held and administered by the Respondents, and by their predecessors “ for the use and behoof of the congregation.” The congregation purchased and owned the church lot and building. A pewholder was a member of the congregation (by-law 12) and a joint owner of the church property. He was a constituent of the Respondents, who, for the sake of convenience, were entrusted with the supervision and generul management of the temporal affairs of the church. They had no absolute or arbitrary rights. They were the mere servants of the congregation in temporal matters, They perfunctorily leased the pews as they became vacant from any cause, and collected the rent also. They had no extraordinary or exceptional powers. Their authority is expressly restricted by the Statute incorporating them. They “ may make, estublish and put into execution, alter or repeal such bhy-laws, rules, ordinances or 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 (1849) by laws established, and as may appear to the said Corporation necessary or expedient for the interests thereof” They had no authority to exclude the Plaintiff from the church in which he had a legal interest and right of property. By analogy of reasoning, as explained by the learned Chief Justice in the Court of Queen's Bench, they might have exeluded the whole congregation and have closed the church. 4. The Appellant was entitled to à pew by reason of his rights and privileges as an elder and member of the church, under its act of incorporation. The congregation of Saint- Andrews Church expressly subjected themselves to and prohibited themselves departing from the constitution of the Church of Scotland, as in that part of the United Kingdom of Great Britain and Ireland called Scotland now (1849) by law established.” They, furthermore, by their first by-law, enact : “This church and congregation now in connection with the established Church of Scotland, and adhering to the standards thereoËl declare that they shall continue to adhere to the said andards and maintain the form of worship and government said Church.” In virtue of these enactments and of by-law 1% it is plain that the members of the congregation intended to subject themselves to the constitution, standards ani forms of church government of the Church of Scotland, then established in Scotland. They are presumed to have obtained legislation intelligently and with reference to the

existing Statutes in Britain. The Church of Scotland is onc of the established Churches of the United Kingdom. (1) The Church is recognized by the Statutes of Canada (2) as well as the act of Incorporation of Saint-Andrew's Church. At the time of the passing of the latter Statute (1849) there existed, and there still exists in Great Britain, a Statute 7 and 8 Vic, Chap. 44, Sec. 8 and 9, which provided for the establishment of “quoad sucra” churches in Scotland, in which the Elders are entitled to à pew in the church. The Plaintiff alleges his quality of Elder and the Rev. Gavin Lang, for the Defendants, declares that quoad sacra churches are governed in very much the same way as Churches here. The Imperial Statute last cited is entitled to recognition here. The Civil Code of Lower Canada (3) provides for reference to the Statutes of the United Kingdom. The Pluintiff, as an Klder and spiritual officer of Saint-Andrew’s Church, was a member of the kirk Session, a body entirely independent of the Respondents, having cognizance of the spiritual affairs of the Church. If he were guilty of any otfence against the spiritual laws he might be tried by the kirk Session and not by the Respondents. The kirk Session alone has power to exercise discipline for ecclesiastical offences. Heale’s practice (4); Cook's styles of procedure in the Church Courts (5): Duncan’s Ecclesiastical laws of Scotland. (6) The offence complained of against Appellant was that “he did not work harmoniously with the minister and his brother elders—not a very serious accusation under the Republican system recognized by the Presbyterian Church. This resolution was passed on the 4th of November, 1872. The Trustees made the resolution the motive of their determination to refuse the Plaintiff a pew. It is clear that the Plaintitf's failure to work harmoniously with his minister and his brother elders, was no ground for depriving him of his civil rights, and that the trustees acted ultra vires. It is also plain that he had been guilty of no offence entailing forfeiture of privileges for which he was amenable to spiritual censure—otherwise he would have been subjected to the discipline of the kirk Session. The previous attetnpts at disposing or snspending

Chap. 8, Art. 25,

(1) Imperiai Statutes, 5 Anne (1706), (2) 18 Vic., Chap. 2, and by 7 George IV, Chap. 2, Sec. 1 (3) Art. 1207,

(4) pp. 9 and 10,

the Appe Session, ir where the reversal o him. The & him arbitr4 Session to have acte sufficient g It is to be a series of irr itating t dents a des fession. TI question of of Scotlanc entitled to this countr heard of, eit the testimo sides. Rev.

of the Chu without ecc of a Churel similar (3). 1 entitled to a rent; and hi pew on the « (4): Beaudr Catholique Ë un banc da Plaintiff sub mentioned h in view of tl dents, and tl diunages.

(1) Duncan's ]

(2) Burns’ Ecc p. 317; Heale's 32, 48 and 49,

(3) Denizart, \

(5) pp. 236 an

the Appellant had terminated disadvantageously to the Session, in the Synod—the highest Court of the Church, where the Appellant maintained his position and obtained a reversal of the judgment of suspension pronounced against him. The authorities seemed, however, determined to exclude him arbitrarily from the church, and the failure of the kirk Session to secure this end in their previous venture, seems to have acted as à stimulant to the Respondents without any sufficient ground whatever to deprive him of his civil rights. It is to be regretted that this attempt was accompanied with a series of petty, though distressing annoyances, extremely irritating to à sensitive man, ev.icing on the part of Respondents a dearth of charity dishon ri. g to the Christian profession, These facts are referred to as bearing upon the question of dumages. Under the constitution of the Charch of Scotland, the Plaintiff, in virtue of his Eldership, was entitled to the privilege of à pew (1): such was the rule in this country also. Depriving an Elder of a pew was never heard of, either in this country or in Scotland, according to the testimony of the reverend gentlemen examined on both sides, Rev. Robert Campbell says it is contrary to the spirit of the Church of Scotland. The action of the Trustees 1s without ecclesiastical precedent, In England, every member of a Church is entitled to a pew. (2) The law of France is similar (3). In Lower Canada the concessionnaire (allottee) is entitled to a continuance of his lease so long as he pavs his rent; and his wife, after his death, is entitled to continue the pew on the same terms: See Langevin, Münuel des Paroisses (4): Beaudry, Code des Curés (5). “Toute personne majeure Catholique Romaine domiciliée dans la paroisse « droit d'avoir un banc dans l'église :” Langevin, Manuel des Paroisses (6). Plaintiff submits that for each of the four considerations mentioned he was entitled to a judgment in his favor, ard in view of the aggravating character of the torts of Respondents, and their wanton invasion of his rights, to exemplary damages.

(1) Duncan's Ecclesiastical Laws of Scotland, pp, 202, 204, 206, 207. (2) Burns’ Ecclesiastical Law, vol, 1, p. 358,8. 3; Haggard's Consist. R., p. 3173; Heale's Law of Church Seats, London, 1872, Book Second, pp. 31,

32, 48 and 49,

(3) Denizart, v°® % Banc dans les Eglises,” p. 174, sec, 7 ; p. 175, sec, S.

(5) pp. 236 and 242,

The Appellant submitted the following authorities in support of his claim for damages against the Respondents : Mayne, on Damages (1); 10th Jur., N.S., part 2nd (2); Yarborough vs Bank of Englund (3); Stevens vs Midland Ruilway Co. (4); Lawson vs Bunk of London (5): Green vs London General Oinnibus Company (6); Civil Code of Lower Canada (7); Brown v. City of Montreul (5); Long v. Bishop of Cupetown (9); Brown v. Le Curé et les Marquilliers de lu Paroisse de Montréul (10); Forbes v. Eden (11).

Mr. W. 4. Kerr, Q. C., Counsel for Appellant, followed : If one of the objects of the congregation, in getting their Act of Incorporation, was to give to the trustees power to administer for their benetit the temporal affairs of the church, it cannot be denied that at the same time they declared that they would continue to adhere to the standards of the Church of Scotland, and maintain the form of worship and government of said Church. It therefore becomes necessary to look into what was the form of worship and usages of said Church. Now assimilating Saint-Andrew's Church with a parish church, and its constituent congregation of pewholders as parishioners, ete., under the parochial system, authorities from the common law and from the civil law of the province are not wanting to sustain the rightful claim of the Appellant to continued pew occupation during his congregational connection and membership of the Church as a pewholder, and it was held in Forbes v. Eden (12), per Lord Colonsay, that à “ Court of Law will interfere with the rules of even a voluntary association to protect the civil rights or interests of individuals which may be infringed.” Citing from parallel parish laws : “ Every man who settles as a householder (here,

(1) Pages 1 to 10.

(2) Page 499.

(3) 16 East, 6.

(4) 18 Jur., N.S., 932.

(5) 2 Jur., N.SN,., 716.

(6) 6 Jur., N. K., 228.

(7) Art. 356.

(8) 17 L. C. Jur., 46: 23 R. J. R. Q., 69, 548 et 549, (9) 1 Moore's P. C. C., N. N., 411.

(10) L. R., 6, P. C. Ap., 159 ; 21 KR. J. KR. Q., 169, 525, 531, 534 à 557, (11) L. R., 1 Sc. Ap. 568 et seq.

(12) L. R., 1 Sc. Ap., pp. 568, 569.

who joir right to.

and Wr rule is fo and the Church a the cong Le] Andrews could be rights of worship & the word aroued th its Own c to holdin recognize church, he sentence © receipt fn The recei] between K of it is t} under Civ notice of t power tor gation. If we are ent Statute is usage may the express United St ed in Pars usages bec of law int the parties “like a fa “obligator “actions, Î “ parties to

(1) 4 Haggal (2) 3 Durn.

(3) 7 Peters (4) See Per

to 3 Lansir p. 28, 8 h

in ats :

arail- , VS

of q Y.

Le 11).

ved :

Act r to ich, that urch ernlook said th «a Iders rities vince ant conre, and hat à

[vallel here,

who joins the constituted Church and Congregation) has a right to call upon the parish for x convenient seat.” (Groves and Wright v. Rector of Hornsey (1). In Quebec the same rule is followed. The parallelism between the parish rights and the congregational member rights of Suint-Andrew's Church are near and plain. The intention of the members of the congregation, it is evident, was to import into Saint- Andrew's Church all the rules of the Scotch Church which could be imported. Now in Scotland one of the greatest rights of à parishioner is the right of attending public worship and the right to a seat in the church. Here by using the word congregation instead of the word parish, it may be argued that Saint-Andrew’s Church is the purish church for its own congregation. Moreover, in this case Appellant's right to holding a pew as a member of the congregation was recognized, and, according to the usage and custom of the church, he coulii not be deprived of this right except by the sentence of à Spiritual Court. It will be contended that the receipt for the rent limited the term of the lease to one yeur. The receipt is an act done subsequently to the agreement between Respondents and Appellant, and all that cun be said of it is that it is indicative of a verbal lease. In which case under Civil Code, Article 1657, Appellant was entitled to x notice of three months. The Respondents have no arbitrary power to refuse à leuse of a pew to a member of the congregation. If there is any doubt as to the character of the lense, we are entitled to refer to usage and custom. But where x Statute is express as to some points and silent as to others, usage may well supply the defects, if not inconsistent with the express directions of the Statute : See Noble v. Durell (2), United States v. Macdaniel (3), and other authorities collected in Parsons on Contracts, Vol. 2. And hence these proved usages become consensual laws in the way to become chupters Of law in the unwritten rules of the country, binding upon the parties to them. “These usages are proved tk evidence “like a fact, and when proved it is held in law if has an “obligatory character in relation to certain executed trans- “actions. Its existence will raise the presumption that the “ parties to a contract acted in conformity with its terms.” (4)

(1) 4 Haggard’s Consist. R., 194.

(2) 3 Durn. & E., p. 271.

(3) 7 Peters R., p. 15.

(4) See Per Nelson, J,, in Allan v. Merchant Bank, 15 Wend and Note

to 3 Lansing R. 94, 95, cited by Browne, Law of Usages and Customs 1875, p. 28.

The proved custom and usage are manifestly undeniable and form not only part of the original contract between the parties, but may be read with the 10th by-law as supplementary, not contradicting it, and may be given as foilows : “ Any person who shall lease à pew from the Trustees for one “ year, and pay the rent in advance, shall be considered a “ pewholder. The rents of pews and sittings are to be paid “annually in advance, from the first day of January, 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 standing, «nd the pewholder shall “ be entitled to continue in the occupation of his perw from yeur to year, by paying his yearly rent in advance ax “ heretofore directed." The supplemented by-law is not only the rule of the contract between the parties, but the constituent of the pewholder’s title to the possession of his pew, which cannot be diverted from him by the arbitrary or discretionary exercise of trust power, and which is defeasible by the act alone of the pewholder, by his voluntary surrender

or by his criminal misconduct subjecting him to deprivation of his pew tenancy by the proceedings at law: Because his possession is in the nature of a life tenancy so long as he continues his connection with the church, in the same way as the right of the parishioner to his pew concession continues during his connection with his parish. “Of course when the right to a pew has been created by à lease for a defined period, it will terminate at the expiration of that period, but when the pew has been sold to à purchaser, his right, unless surrendered, will continue as long as the church stands and is used for chureh purposes. On the death of the owner, it devolves upon either his heirs, or legatees, or devisees, or upon his personal representatives.” Relations of Civil Law to Church Polity.... Strong, 1874-75, page 130.

The learned Counsel then referred to the following articles of the Civil Code, which he thought applicable to the present case, viz.: Art. 1657, 1608 and 1642, and concluded by submitting that Appellant was not only entitled to a sitting but to a pew, and that he could not be deprived of it except by excommunication or by à new division being deemed necessur y.

Mr. C. P. DavipsoN, Q.C., and Mr, CRoss, Q. C., Counsels for Respondents : The only two contracts relied on by Plaintiff as stated in his declaration, are: 1st, À legal verbal lease. 2nd. A continuance of that lease by tacite reconduction or by verbal lease for want of notice. His conclusions are for damages for having been molested in his occupation and enjoy-

ment of p to his rigk wishes no pew gener not to tunt custom we therefore, contain all beyond its IS, 20 and the nature If s0, was :

of pews in Code, relat:

entitled Ap inination, :

his remaini expiration ( the part o!

the year 18 three mont and by Bya pewholde rent; 80 we ing the leas a Written co year. Now terminate of to apply tot leases. The such à conti the Code, In del Œuvre taine, in his of pews are the Fabrique pellant, that ly for a fixe from. The } fultil the en:

Would be dej Was other t cach case, to in default.” rent in adva

(D) 4R. JR.

nd he [e- S :

ne

| à aid \re led hat are ‘OIL

as niv the his ÿ or 1ble ider tion his s he y as nues the ined riod, ight, nds ner, s, or ww to

ieles sent sub-

but t by

2Ces-

nsels

ntitt,

ense,.

r by lamjoy-

ment of pew n° 68. The controversy is therefore solely as to his rights to occupy that particular pew. If Appellant wishes now to widen the issue und say he was entitled to a pew generally, failure on his part to prove his contracts ought not to turn against us if it should Le shewn that usage and custom were not in favor of Respondents. The first point, therefore, Respondents contend is that the declaration must contain all the causes of action, and no adjudication can be beyond its conclusions, and on this point will refer to Art. 17, IS, 20 and 50, of the Civil Code of Procedure. Now as to the nature of this holding of Mr. JOHNSTON. Was it a lease ? If so, was it a written lease ? A verbal lease, if the holding of pews in à church fall within the provisions of the Civil Code, relating to the lease of houses or real cstate, would have entitled Appellant to three months” previous notice of its termination, while à tacit renewal would have taken place by his remaining in possession more than eight days after the expiration of the lease, without any opposition or notice on the part of the Respondents. The written receipt is “ for the year 1872,” and it obviated the necessity of “iving the three months’ notice. Evidence of verbal lease docs not exist, and by By-law n° 10 no member or adherent could become a pewholder in St. Andrews Church without prepayment of rent; so we find Appellant on the 9th January, 1872, renewing the lease of pew n° 68, paying its rental, and receiving a written contract for its enjoyment during the nest ensuing year, Now under Civi, Code, Art. 1658, leases if written, terminate of course, and without notic:. But it is impossible to apply to the lease of a pew the law applicable to ordinary leases. The Court below has unanimously held that it was such à contract as could not be brought within the articles of the Code, In the case of Richard v.the Curé et Marquilliers de l'Œuvre et Fabrique de Quebec (1), C. J. Sir L. H. Lafontaine, in his judgment at p. 269, remarks :—“* The concessions of pews are made for a tixed term. It is in the interest of the Fabrique and of the parties concerned, including the Appellant, that it should be so because this tends to assure cqually for a fixed term the receipt of the revenue derived therefrom. The Fabrique is, by these means, put in a condition to fulfil the engagements of their administration. The Fabrique would be deprived of this advantage, if the clause in question was other than comminatoire, and if it was necessary in cach case, to give notice, so as to put the lessee of each pew in default.” In this case the occupant had failed to pay his rent in advance, and the Church beadle ejected him from his

(1) 4R. J, R, Q., 260, and 12 R, J, R. Q., 469.

pew. 5 American Rep. (Albany); Kineaid's Appeal (1) The rights of pew owners in church discussed arguendo ; 2 Pardovan (Hills Institutes) (2); Auger vs Gingras, Stuart's Rep., “ A quasi possession qui ne consiste que dans des droits (3);” 1 Bell's Dictionary (4); Strong's Relations of Civil Laws to Church Polity (5). As to securing any new rights by holding possession for eight days after the 1st January, 1873, it is difficult how such a claim can be urged in the face of the facts of record and of Appellant’s case, as stated by himself. He had notice of the resolution passed by the trustees on the 1st of December. He was present and voted at a meeting of the congregation held on the 25th of the same month, when a motion was carried endorsing the action of the trustees. He himself complains that respondents refused the tenders of rent made with his protests of the 20th and 27th December, 1872, and 2nd Janvary, 1873. The evidence of more than one witness gives a positive denial to the pretension of acquiescence. Moreover, obedience to the articles of the Code previously referred to ceases to be a necessity if the lease of pews cannot be assimilated to that of houses or of other real estate, and an action for disturbance in the enjoyment of a pew cannot be muintained without title. Auger vs Gringras, Stunrt's Rep. (6); 1 Ferrière, Dic. des Termes de Prat. &e. (7) ; Jousse, Traité du Gouvernement Spirituel et Temporel des Paroisses (8): Beaudry, Code des Curés (9) : 1 Maréchal (10) ; Stocks vs Booth (11). Possession for above sixty years of à pew in a church is not a sufficient title to maintain an action upon the case for disturbance in the enjoyment of it. Woodfall, Landlord and Tenant (12); Prideaux on Churchwardens (13) ; Sinith, The Purish (14); Pettman vs Bridger (15): 2 Phill. Ece. Law (16); Rogers (17). It cannot be said that the act of respondents was ultra vires. The control of pews is a temporal matter. It is proved that the practice was that all pews

(7) Vo. Banc d'Eglise.

(11) 1 Durnford and East, P. 498, (12) P, 540.

(15) 1 Phil. Eccl. Rep., 91.

come once that object holdings.

poralities « the sessio pews, and | forfeited p 3rd article, of the tru:

church of did not act 2 Pardova “Banc” (2 Presbyterid others foun Hoffinan's lant claims have addres, of the Trust of the churc is contendec This is doub tees were @ proprietors.

session of à ] committee to tees justifiec what is nece:

sel referred Ames on Cor Campbell, on for forty ye Hunter, Mitc teen witnes-e Rev, Mr, Can belief that it Church of S

(1) Pages 523, (2) P. 272, (3) 10 M, & W (4) 32 Barbour' (3) Pages 171, 2

(7) Par, 411,

come once à year Within the control of the respondents, so that objectionable persons might be refused renewals of their holdings. The choice of pewholders so belongs to the temporalities of the church, that it cannot be interfered with by the session. The by- laws give power to the trustees to let pews, and by the 9th article it is provided that all buyers of forfeited pews must be approved of Ly the trustees. By the 3rd article, all moneys are to be received and paid “ by order of the trustees only.” The minister, and members of the chureh of very long standing, declare that the respondents did not act ultra vires. On this point of the case were cited 2 Pardovan, (Hills Institutes) (1); Durand de Maillane, vo. “Banc” (2); Burton vs Henson et al., (3); Cooper vs First Presbyterian Church of Sandy Hill. (4). This case, like all others found in the American Reports, is founded on title. Hoffinan's Ecce. Laws of the State of N.-Y. (5). But appellant claims his right as a spiritual right. If so, he should have addressed himself to an Ecclesiastical Court. The decision of the Trustees in exercising their power over a temporality of the church, must be considered as final. The appellant, it is contended, had rights as a member of the congregation. This is doubtful, for he was not à corporator, so far as Trustees were concerned, as the election was by the vote of the proprietors. The appellant has not been in continuous possession of à pew for three years, and he could not be on a committee to appoint a minister. Now, were not the Trustes justified in not renewing the lease, or, in other words, what is necessary to justify their act ? [On this point Counsel referred to Grant on Corporations (6); and Angell and Ames on Corporations (7): and also to the evidence of Dr Campbell, one of the Trustees und connected with the church for forty years, Rev. Gavin Lang, Dennistown, Macdonald, Hunter, Mitchell, John O’Gilvy and Morgan.] Of the nineteen witnes-es examined on behalf of appellant, only one, the Rev, Mr. Campbell, has ventured to assert even the qualified belief that it is not in accordance with the “spirit” of the Church of Scotland to refuse a member a pew, But his

(1) Pages 523, 528,

(4) 32 Barbour’s N. Y. Rep., 222.

(5) Pages 171, 247 and 251.

(5) Par, 411.

opinion is admittedly “ founded on the parochial system,” and he qualifies it by saying that “the Trustees would not be justified in refusing him a pew s0 long as he behaves himself civilly.” But we urge also that appellant acquiesced in jurisdiction of respondents, although he has taken objection to the decision arrived at. The letter of the 10th December, 1872; the resolution of the congregational meeting of 25th December, 1872, on which he voted ; the letter of 29th May, 1873; pieces 4 and 5 of record being demands upon respondents to exercise their powers in appellants favour, constitute an acquiescence, such as bars Mr. Johnston from contending that session or trustees had no right to refuse him a pew. [See Brice, Ultra Vires (1); Hoffman's Ecc. Laws of the State Of N.-V. (2): Dumner vs Corporation of Chippenham (3). AN decisions opposed are based on the parochial system. The system followed in the province of Quebec, where parishioners are compelled to pay tithes, cannot be assimilated to that of St. Andrew’s Church,the contrast could hardly be more striking than between these Churches. Respondents conclude by praying for confirmation of the judgment of the Courts below :—1st. Because the appellant has alleged want of sutficient notice to quit, and tacit renewal, as the sole grounds in support of an alleged verbal lease ; whereas the articles of the Code relating to lease do not apply to pews.

2nd. Because appellant’s holding of pew n° 68 terminated on

1st December, 1872. S3rd. Because the respondents, in the exercise of a rightful discretion, on the 7th of December, 1872, determined to refuse appellant the occupation of pew No. 68 during 1873, and because that determination was ratified and confirmed by the congregation on the 25th December following. 4th. Because Appellant has not set out any title to said pew; has not questioned the power of the Trustees in the premises ; has not asserted any jurisdiction on the part of the Session ; has not alleged himself to be a member of the congregation, où that he has been deprived of or disturbed in any spiritual right, or that he was refused a pew generally. 5th. Because the” renting of pews, collection of revenues and determination of holdings, ure inseparable powers, and all of a purely temporal kind. 6th. Because there is no evidence of record legally connecting the Respondents with the four series of acts complained of, and because Appellant has not proven damages. 7th. Because the Superior Court

(1) Pages 131, 275.

(2) P. 279 {3) 14 Ves., page 251.

tirst, and the facts dendents lisimissec Mr, Ac a servitud laws of ] cable to leased Gr or hired ( suffcientl points rai the appel The Ch Were crea ground ot publie Wo Scotland, William } ping in t] May, IS05 the congr statute fui part of tlu certain tru the said co Was then numbers ol tr'ustecs no and the Le t''ustees (w the name.

Church, M lish, and pt Ye. as shal the province titution ot land, as ne dient for th Corporation and dispose Poration we

1} Civil Cod (2) Civil Cod (3) Code Civ