TOME XXIV

ground, With the buildings thereon, forever, for the several limitations, trusts, provisions and uses declared and expressed in respect of the same by the deeds of sale referred to, and the declaration by Alexander Rae and William Hunter (made before notaries) and by the terms under which the trustees were elected, Section 3: The Corporation were authorized to sell all, or any portion of, the property held in trust by them, but only on a requisition signed by three-fourths of the proprietors of pews in the church,of at least one vears standing, and not in arrear of rent and at the time residing in the parish of Montreal ;: and no sale or alienation shall be valid unless sanetioned by three-fourths of the proprietors, qualitied as aforesaid, Section 5 provides for Killing up vacancies in the Corporation, When the vacancy is occ: asioned by the death, removal, or change of residence of the minister, the succeeding minister shall fill the vacaney. When the vacancy is in the number of the lay members, the sune shall be supplied by the votes of such persons as shall be elected to fill the same, by à mujority of the votes of the proprietors of pews in the said church, of one yewrs standing, not in arrear of pew rent, at a meeting to be convened as thereafter provided. Section 6 : Whenever à vacancy occurs in the office of minister of the church, a meeting is to be called of the proprielors, pewholders and members of the church vot in arrear of rent for the purpose of taking the steps necessary for supplying the vacancy by electing a committee of nine, of whom six shall ba proprietors s of at Teast one Years standing, and in full communion with the church, and the reipaining thre *e AY be pewholders who have paid rent for three years preceding their election, and are in full communion with the church ; who shall have full power to take such steps as to them may seem best adapted for speedily obtaining à minister to the said church. Under Section 7 : to fill the vacancies as to the lay trustees - à meeting is to be called of the proprietors not in arrear of rent, on à day to be named, for the purpose of supplying such vacancy or vacancies by à person or persons who are proprielors in communion with the said church. Section 8 provides : for the calling of publie meetings of proprietors or pewholders, on a re quisition signed by 20 propr telor " Or Gen holders. Under the amending Act, passed 27th May, 1857, Cap. 191,it was provided, See. L, that the trustees, save the

minister, should go out of office the 25th December then next : und by Sec. 2: an annual general meeting of the proprietors of pews is to be held on the 25th Dece mber in every year, and by Sec. 3: six trustees shall be elected at the first annual meeting after the passing of the Act. Sec. 4: Two trustees to retire annually. The by-laws of the chureh were put in

evidence, IS5, Une ing of the cember, 1 SUV of pre arrear Of 1 years pre and the ot ticle 3: At bers prese In appoint in right 0) in arrear members o which shal arrear Of p that there Htoi'e Perso give but or vote, they :

was to hav.

ferred to, pew, and h deed, dulv tit ed to all arrear for r be valid exc ts being a by-laws. 4 tixed on his Vears shall church, and highest bide to pay the r proprietor, the trustees considered à paid annual be considere laws it is sta have paid rei Stunding, &e all pews in P prices as th tWo Veurs of to an annu:a all deeds gra

ral sel nil ide vues | to en, ro ing, ish l D lus the ath, eed- Vis cu p- » fill rs Of vear proce Of pro- 'reur suphom id in ay ding who see said

evidence, They appear to have been passed on the 11th Murch IS51. Under Article 2, the trustees were to call a general merting of the congregation, to be held annually on the : 25th December, Two auditors were to be appointed by those present, say of proprietors of at least one years standing, and not in arrear of rent, and pewholders who have paid rent for the two years prereding, one of which auditors must be a proprietor, and the other may be ax pewholder, both quahtied as above. Article 4: At the general meeting of the congregation the members present, qualifie {as above, shall elect à treasurer, Art. 4: In appointing à committee to select à minister, all proprietors in right of property possessed not less than one year, and not in arrear of pew rent, shall be entitled to vote, and also all members of not less than three years’ standing, one at least of which shall have been a mmber in full communion, and not in arrear of pew rent, shall be entitled to vote. [It was understood that there should be only one vote for each pew. Where tino or more persons 80 quulified should occupy à pew, they should give but one vote, and in case of disagreement as to who should vote, they should have no vote. No proprietor or pewhoider was to have more than one vote. Nection 6 of the Act, is referred to. Article 9: Every person having purchased pew, and having paid for the same, and who shall produce a deed, duly executed by the trustees, is à proprictor, and entitied to all the privileges of a proprietor. Proprietors not in arrear for rent may transfer their pew, but no transfer is to be valid except on the express condition of the new proprietors being approved of by the trustees, and subscribing to the by-laws. Any proprietor who does not pay the annual rent tixed on his pew, agreeably to his deed, for the space of two vears shall be considered as having forfeited his pew in the church, and after notice, the trustees may sell the saine to the highest bidder, and the proceeds of the same shall be applied to pay the rent due, and the surplus shall be paid to the last proprietor, Article 10 : Any person who shall Tease à pew from the trustees for one year, and pay the rent in advance, shall be considered à pewholder, The rents of pews and sittings are to be paid annually in advance from the 1st day of January, and are to be considere ! due, The current yeur isineluded,wherein the byhuws it is stated as a qualification, that the individuals must have paid rent for three years, and are members of three years’ standing, &e. Article 11: The trustees are empowered to sell all pews in possession of the chureh, at such times and upset prices as they may decide on, but not for a less sum than two yeurs of the fixed annual rent announts to, and subject to an annual rent over and beside the purchase money, and all deeds granted shall contain a clause that the annual rents

6s RAPPORTS JUDICIAIRES REVISÉS

may be augmented or incrensed by the trustees, according ns they may deem the wants of the congregation require ; they

having obtained the sanction of two: thirds of proprietors of pews of at lenst one full yeur in possession, not in arrear of rent, at the time residing within the Parish of Montreal, Article 12: The congregation in these by-laws implies the pro: pr ietors of pews, Cpewhol lers, members in full communion with the church, and regular sitters whose names are entered in the church books, collectively. Article 13: The term church in these by-laws, referring to persons, comprehends those members of the congregation, collectively, who are in full communion, Article 15: The trustees are to enter in a book, to be kept for that purpose, the names of the proprietors of pews, peuholders and sitters: when more than one individual rents a pew they shall give their names to the trustees, that they may be entered on the roll of the congregation. Article 14: The trustces, previous to the election of à trustee, or the election committees for selecting à minister, shall make out lists or rolls of the proprietors and members qualitied to be trustees, or to vote on the election of trastees or members of committees for the selection of à minister, or to vote in the election of such comimittees. In the view take of this case, it Will not be necessary to consider, or express any opinion on unfortunate differences that have occurred between the Plaintiff and the congregation of St. Andrew's Church. The right of à parishoner to à seat in a purish church in England and Scotland being based on the fact that the nation assumes to provide for the spiritual instruction of the people, cannot be asserted in relation to the members of religious congregations in this country, which have none of the rights of established churches and must be regarded as voluntary associations. The right to à pew ina church must be considered in the nature of an easement, The proprietor for the time being has a right to occupy it at meetings of the congregation for religious purposes, but he could not destroy it or erect beneath it à cellar or place of deposit for goods, or use it for like purposes, His rights being of a limited character may be subject to modifications which would not attach to other inte rests coming out of lands, The fee simple in the property, in this as in most of the churches of this country, is vested in the trustees whether under the name of trustees or minister and churchwardens, and they hold according to the various rights declared by the conveyances to them, or the acts of the Legislature incorporating them. The plaintitf occupied à pew

in the church for several years, and oceupied one in 1869, described as “are a pew n° 68 in St. Andrews Church, Beaver

Hall” The rent for the veur was $75. He took the pew

in dispu obtained Plaintitt from J being f Benver Under t} vance, t] this letti Sanborn, one wlh “Itis ne ‘article, hecessit was Falls V: Lamon In this ca ouly bécr ane l'ecs Wu in et party int it withou Responde:

him a pe were tren lucite l'ec leurned il Article 16 understan duction, sinple venr rent in ad:

three mon verbal one, Appellant have the r on payinen all the tru lease, woul Article 165 of presume occupy. It the Statute proprietors, called, and interest wh

TUE full )0k, * ot lual hat Ar:tee, ake dto bers e in this opieen reh.

\ in tion ple, Ious rhts ary derime tion rect for ? be nte ,in the and rhts Le-

pew

S69, aver pew

in dispute, and began to oceupy it in January, IS72 and obtained n receipt for the rent date the 9th January, INT2 Plaintit produced and gave it in evidence, it rends : “ Receive from James Johnston the sum of sixty six 507100 dollars being for rent of first class pew n°68, in St, Andrew’s Church, Beaver Hall, for the vear 1872, For the Trustees, J,Clements.” Under the By-laws the rents are to be paid annually in advance, thut taken in connection with the receipt shows that this letting was at all events for one yeur certain. Mr, Justice Sanborn, in his judgiment says: If this is a lense it is not one which falls within the application of Article 1657 CC It is not such a verbal lease as is contemplated by that ‘article, Ftis the uncertainty of the term of the Tease which necessitates the three months notice to terminate it This was fully discussed and determined in the case of Webster v. Lamontagne, decided in this Court in IST4, suprà p. 4. In this case there was no tacit renewal. The pew No. 6$ had ouly been leased in 1872, and the rent was paid in advance, and à receipt ben specifving the rent for one year. This was in conformity with the By-laws, and Appéllant, ns a party interested, must have been presumed to have known it without such receipt. Before the expiration of the veau Respondents notitied Appellant that they would not leuse him a pew for the next vear, This was quite sutlicient if it were treated as an ordinary lease to prevent à contract of tacite reconduction. LE don't understand that any of the leurned judges before whom the case cume, thought the Article 1657 of the code applied, nor do they think, as 1 understand their judgments, that there was à facile reconduction. The Plaintifs right must then be based on the simple ground that he had a right to have à lease for the ver IS73 of the pew No, 6$, he being willing to pay the rent in advance for it, [we were to decide he was entitled to three months" notice to terminate the lease because it was à verbal one, Fapprehend this would not be satisfactorv to the Appellant or to those who contend that the holders of pews have the right to a renewal of their leases from vear to year on payment of the rent suggested. TE this be the correct view, all the trustees would be required to do to terminate the lease, would be to give three months notice, according to Article 1657, and there would be no difficulty and necessity of presumeldl 6r added conditions to the leases or licenses to occupy. It is not contended there is any express provision in the Statute or By-laws giving the right to pewholders not proprietors, to have à renewal of their leuses, as they are called, and that right must be implied from the nature of the interest which the pewholders have as members of the church

Fe Re:

PAL 2] LE Li; ee à

70 RAPPORTS JUDICIAURES REVISÉS

or from usage, As L'have already intimated, F do not think there ean be any analogy drawn from the right to oc Cupy seats in the parish churches in Scotland, the right to n sent being based on a different principle there,—there are no pew rents, as such, and the minister being supported from other sources, Whilst, in fSaint-Andrew's Church, the rents of pews are appropriated to the payment of the minister's stipend. The rights of proprietors scem to be detined by the Statute, and by By-laws adopted by the Corporation under the Statute. Thev alone can vote for trustees. In selecting à committee of nine for the purpose of choosing à minister, six of the number must be proprietors, every person having purchased

a pew in the church, having paid for the same, and who shall produce à deed duly e xecuterl by the trustees is a proprietor, and entitled to the privileges of a proprietor as specified by the By-law. Proprietors not in arrear of rent may transfer their pews by sale, gift or Will, but no transfer to be valid ercepl on the Crpress and bon of the ner proprietors bein approved by the trustees. À proprietor who refuses or neglects to pay the annual rent fixed on his pew agreeably to the deed for two years, shall forfeit his pew: and the trustees, haviny given two weeks notice of the forfeiture, may sell the pew to the highest bidder, provided the bidder be approved by the trustees. The proceeds of sale to be applied to the payment of the rent, and any sarplus to be paid to the last proprietor, LE think we may fairlv assume hat it was not intended that pewholders should have greater privileges than proprietors. There is nothing in the by- laws or Act 6 Incorporation giving them the right to continue to hold à pew beyond the year for which it is leased, nothing said about their being entitled to à renewal of the lense of a pew. though reference is made to pewholders who have paid rent for three yeurs. Suppose a pewhoider neglects to pay his rent, can he continue to hold the pew ? If not, how is he to be dispossessed of it? and when? [Is he to have a reasonalile time after the end of the year to pay the rent for the next year, which i is payable in advance, and in the mean time is he x “pewholder”/ And is the pew to be considered in ns possession / Or is the pew ü the possession of the trustees ! When is it to be considered in the possession of the trustees that thev may sell it if they think proper / No provision is made ans to these matters by the by-laws. Ifthe perholder has the right of his own mere will to continue to oceupy the pew for an indetinite period, the trustees would be very much embarrassed in ca -ying on the affairs of the Corporation. It might be for tne interest of the Corporation to sell the pews that had been leased, and yet if the pewholder elaimed

have create dif order to made for el: but 1 clause th:

by the tt concredat of the pr aud not Montreal.

seats, tha render it in relatior use the ter the manag inc the pe riegation, trustees cc other pers constantiy sear and t difiiculties change hi { inCl'ense O1 at any tin are current exe r'ei se 4 Ci Worsbippin COngrega cie the trustee seling pew they will se exercise th giving to tl pew and pa leave the t tüseous for 1 NECESSAN" when each paid for, t} fliculty co to be done reasonable ) bringing th These dome und ina mn

ink ap\ ‘ent )CW her EWs nl.

ute, ute e of the sed hall to), | by sfer ali ANT lects the tees, the vel the last not han Lcor-pew out )6W, rent

> have his lease renewed from time to time, this would create dificulty. It imight be necessary to ruise the rents in order to pay the stipendl of the minister, yet no provision is made for that purpose, as far as the pew holders are concernal: but when the pews are sold the deeds are to contain a cause that the annual rents may be augmented or decreased by the trustees, according as they may deem the wants of the congrégation require, first obtaining the sanction of two thirds

ï the “proprietors of pews, of at Teuab à yeur in possession, 4e not in arrear of rent, residing within the parish of Montreal. There are other alterations as to the occupation of seats, that the change of time and circunistances might render it desirable to make, such as making the seats free, in relation to which this perpetual right of renewal (if L'may use the term) of the pewholder would very much embarrass the management of the church. Suppose the pewholder paying the pew rent regularly, and not joining any other consiogation, very sel lom, if ever, attended church; must the trustees continue to let him have the pew, when there were other persons desirous of obtaining it, who would oceupr it constantiy 2 [fit be considered that the pews are let for a vear and the trustees re-let for each year. then none of these difiiculties Will arise. Whenever cireumstances require a change in the mode of letting or occupying the pews, or the increase or diminution of the rent, such changes may be made at any tune after the end of the year for which the leases are current. [tis not to be presumed that this power will be exercised capr iciously, or to the prejudice of the congregation worshipping in the church. The most favoured parties in the congregation are subject to the exercise of this discretion of the trustees, as to whom they may sell their pews. When seling pews they can exercise their discrétion as to whom they will sell them, and 1 see no renson why they should not exercise that discretion as to whom they may lense pews. By giving to the pewholdess the right which the leasing of the pew and paying of the rent for one year secures to them, you leave the trustees free to act as my be considered advantageous for the benetit of the congregation. Any reasonable or necessary changes may be made at the end of the yeur, when each pewholder has had what he has bargnined and paid for, the use of the pew for the veur. In this view no difiiculty could arise: no discussion, whether what was about to be done was rensonable, or done at à reasonable time, in a reasonable manner, and no law suits or unpleasant litigatior bringing the matters of the congregation before the Courts These domestie affairs would be settled in their own forum, ui in a more seemly manner than by legal proceedings,

which produce discontent, anger and ill-feeling. If the right to a lease for another year had been claimed by à pewholder the next vear after the By-laws had been passed, and the trustees had refused to grant it, Fam satisfied it would have been held, that there was no doubt that the pewholder, having leused the pew for one year, and paid his rent for that period, and having obtained the receipt, could not claim as à right to have the same pew granted to him for another year at the same rent, without the consent of the trustees. If that wou'd have been the eftect, then why should the Appellant, who must be held as to this particular pew, to have taken it for the vear IS72 (he not holding it for ISTD), be considered entitled'to claim the lease of it as a right for IS73 2? [can see no satisfactory reason why it should be so held. It is argued, however, because pewholders for the last twenty-five years or more in Saint-Andrews Church have had their leases renewed, therefore it must be conceded as a right. No doubt usage is à strong point to take in these matters, but when the usage may be accounted for quite consistently with the claim of right set up, and when it has not been exercised in à manner to Show it has been claimed and admnitted as of right, vou mav show facts and cireumstances which would prove that the right claimed was not intended to Le granted as claimed. Fhave endeuvored to show that the right elaimed by the pewholders could not have been intended to be grantel to them, by showing how care fully the rights of the trustees bave been euarded i in relation to proprietors :7 and if the rights now elaimed by the pewholders had been intended to be granted to them, more minute provisions would have been made as to enforcing the rights of the trustees against them, and matters would not have been left in such à chaotic state as it appears to me they would be in, if the views contended for by the Appellant are allowed to prevail, The fact that the congregation worshipping at Saint- Andrew’s Church for more than 25 vears past, have acte harmoniously, and been so united that the trustees have not hud occasion to refuse to renew the lease of a pew to anv pewholder who desired it, does not, to my mind, prove that it was because the pewholders had a right to claim this renewal as of right, but shews that the trustees, acting as reasonable men did what they thought was right for the interest of the congregation and what was likely to ensure hurmony. It is possible this may go on now for another quarter of a century or more without having any difficulty. It is only when the

exigency arises making it necessary to exercise the right to refuse to let a pewholder have for another year, a pew which he has oceupied perhaps for several vears, that the right of

the trus such a w to occup:

viven for right to sary the:

the stiper the pew the rent, It was no to refuse { ahnOoV pe [do not t il [LA hold vear, thon have ref the forme inc that tl eve many pewholder and restra to submit gregation right to oc and paid fe he should ] business of manner wh for which would sett] erounds. 1 Appellant, subject of t inust be L'O1 The C hurel im the pari makes him interfered Fa person chureh, and adherence t trustees 0 at their dis] said :—" Th pews in the not include trustees said

eht

der

the

JAUE

ler

for vit

her ces,

11) for J st) last ave As à hese onnot and nces ided ; the

ide |

the trustees to refuse becomes known to the congregation in such a way as to attract attention. The giving of the right to occupy for another year, each year, throngh the receipt given for the rent, is not all inconsistent with exercising the right to refuse to continue giving such right. {It was necessary they should rent the pews to raise the revenue to pay the stipend of the minister : and the fact that the occupant of the pew wanted it for another vear, and was willing to pay the rent, was à reason why they should let him have it, It was not necessary or desirable, mere Av to show their right to refuse to let for another year, that they should capr iciously annoy pewholders by re fusing to renew the le tting to them. L do not think it is contended that the trustees could compel a pewholder to continue to hold the pew after the end of the vear, thongh tiey might wish to do so, and though they may have refosed to let it to another applicant, anticipating that the former holder would continue to occupy it. [It seems to me that the doctrines contended for by the Appellant would give many dmportant rights, options and privileges to the pewholder without corresponding obligations, and cast burdens and restraints on the trustees which they never undertook to submit to, and which it is not for the Interests of the congregation they sbould bear. Giving to the pewholder the right to occups the jew for the year for which he bargained and paid for, he has what in mv judgment it was intended he should have, and vou have the trustees free to manage the business of the congregation entrusted to their cure, in the manner which may be best calculated to further the objects for which the Respondents were incorporated. This view would settle the rights of the parties on intelligible legal erounds. In the ev idence of one of the cle reyinen called for Appellant, it was stated that thev had not legislated on the subject of the rights of parties to pews, und therefore they must be governed by the principles of the Church of Scotland. The Church of Scotland layvs down the rule that every man im the parish has rights in the parish church, and unless he makes himself offensive to the chureh his rights cannot be interfered with. It is founded on the parochial system. [Fa person were to apply for admittanee into a Presbyterian chureh, and were notoriously objectionable, vet if he profess adherence to the principles of the Church of Scotland, the trustées would be bound to give him a pew if they had one at their disposal. The Rev. Mr. Lang, the minister in charge, said: "There is a time at the end of each vear when all the pews in the churel: virtually revert to the trustees : that does not include the pews owned by proprietors” One of the trustees said : "The trustees have always contended that the

pews are rented from venr to vear: and that the leuse of each pew ends with the yeur, and can only be renewed with the consent of the trustees either tacit or expressed.” He has known cases in which parties have grumbled on being deprived of their pews in that way. The notice of the annual meeting Ne As the trustees or their representatives will Le on hand to leuse the pews of the church. It was customary to omiiote a tenant in his pew as long as he pays rent regularly. The trustees consider they have à sort of discretion in regard to the letting of pews, “our right has never been questioned before, that 1 know of, to refuse à pewholder x pew.” Another minister, speaking of the churclh in which he is the minister, says:-"The managers (in his church) have duties very similar to the trustees in Saint- Andrew's Church. The managers have the sole power over the pews, and can let them to whomsoever they please, As 1 understand 6, the managers have the power to eject à member from his pew. have no doubt of it" Many mem bers of the congregation stated the custom to be, that you paid the rent und vou were supposed to keep possession of vour pew ; the reccipt given was for the rent for the year. Some said they understood that any person paying his peu rent, got his pew on paying from year to veur, The pews are continued by the payment of the rent in advance. There seems to be no doubt that the trustees have exercised the discretion so far us to refuse to continue single letting in pews, When à pew was wanted for à family. The pew occupied by Appellant in 1871 was owned by Mr, Mackenzie, who sold it, and Appellant wanted the trustees to refuse to approve of the sale: they, however, declined doing so, but compelled the young men who had sittings in No. 68 to leave that seat in order to give it to Appellant. Funderstand these young men had paid for the sittings just as the pewholders “aid for their pews, but when the occasion, in their discretion, called for the exercise of the right to refuse to renew the letting of the sent, the trustees exercised it. When the necessity, as in this case, for the exercise of their right to refuse to renew the letting of à pew arose, they, in their discretion, exercised it, and refused to renew the letting of this pew to Appellant, and, as already intunated, T think they had the vight to do so. EL have not been able to see all the cases and authorities cited on the argument to show that the right to refuse à member of à religious society à seat in a church belonging to the body, is one which rests with the congregation alone, and that the exercise of their diseretion will not be reviewed by legal tribunals. Many of the decided

cases go to the full extent contended fer. As E do not

consider Cause, Î © the Plain question nl risht un b\-laws, à be disinis:

Rire deration + HV Invest diticulties time to ti arrived a Justice D correct ont controvers Cap. 154, \ndrew's that: “WI “upon wh ‘of the ® Montreal ‘crecteil, William “ping in.

‘favor on Notaries ‘and Willi “Ith Jul he nefit un ‘the reof, (TA ccubarly dé “tion.” Ît:

church was tion, and th reciting th specifvine that as suc colleague th Decemb Atwater, ‘“t them) for ‘the said cl

church su

É yJregution,

body cor por inc onve nien

of ith HE ins uul veus vas Lys of has e à rech his int- Ver \s | t (QITE you

h of

‘ear.

pen

ürt here

the

pe W

consider it necessary to go into that question in deciding this cuse, Fexpress no decided opinion upon it. consider that the Plaintiff here claims that be had a right to the pew in question : and, in the view EL take of the law, he bad not such right under the Act incorporating Defendants and their by-laws, and therefore his action Fails and this appeal should be dismissed,

RITOHIE, JT have given this case a great deal of consideration and have felt, throughout the argument and during my investigation, that it is surrounded with x great manv diticulties, and my mind has doubted and fHluctuated from tune to time: but, after most careful consideration, FE have arrived at the conclusion that the principle which Chief Justice Dorion, in the Court below, put forward, is the correct one, The church which has given rise to this unhappy controversy, dates its origin as far back as IS05. The 12 Viet. cap. 154, incorporating the minister and trustees of Naint- \ndrew's Church, Montreal, passed 30h May, 1849, recites that: * Whereas the ground in Saint-Peter's Street, Montreal,

“upon which the chureh for the publie worship and exercise “of the religion of the Church of Scotland, in the City of

Montreal, commontv called “ Saint-Andrew's Church," is “erected, was purchased by the late Alexander Rae and William Hunter, as trustecs for the congregation worship- “ping in the said church, under x deed executed in their favor on the third day of May, 1805, before Guy and Barron,

Notaries Public, and held by thom (the said Alexander Rae and William Hunter,) according to their declaration of date “th July, 1805, made before the soil Votaries for he he mefit und be hoof of the said clourele and the congregution thereof, and for Ho ‘other purpose hatsoerer. and is parti- ‘cul rly described i in the aforesaid deed of sale and de clura-

“tion.” [It appears to have been found afterwards that the church was too small for the accommodation of the congregation, and that incorporation was desiruble, and the Act, after reciting the election from time to time of trustees, and specifving the numes Gf the then trustees, further recited that as such trustees by deed, passed before 44 Gibb and colleague Notaries Public, bearing date at Montreul th. th December, IS47, they acquired by purchase from Edwin Atwater, “those certain lots of land (particularly deseribing them) for the use and behoof of the said congreqution of ‘tu swid church, and on which there iR notrt being built « church suitable for the une reusecd numbers of the said Con “gregation, and after reciting that the trustees were not u body corporate, and that the trustees had represented the inconveniences resulting from the want of a corporate Capa-

city, and that it had become necessary to sell the church in Saint-Peter’s Street, and provide a larger building for their accommodation: the minister, trustees and their successors were constituted à body corporate with perpetual succession, with power to make such rules, ordinances and regulations as should not be contrary to the constitution and laws of this Province, or to the provisions of this Act or to 1h constitution of the Church of Scotland, as in that part of the United Kingdom of Great Britain and Ireland called Scotland, now by law established, and as might appear to the suid corporation necessary or expedient for the interests thereof : and it was also enacted, * Article 2: That the several lots of ‘ground, together with the buildings thereon erected, by the “ trustees aforesaid, shall be holden by the said Corporation “to stand and be possessed thereof for ever to and for the “ several lüinilations,trusts, provisions and'uses declared an ‘ ‘: expresse 1 in respect of the saine in and by the ubore referred ‘to deeds of sale and declaration by the suid Ale, rander Ru “aud Willion Hunter, as also by the terms under which ti “said trustees are elected." Thus only the site of the church was changed, and after making provision for the corporation accepting and holding real estate to à certain amount, for alienating the buil lines on Saint-Peter's Street and other lands on certain conditions, for raising money by way of mortgage, for the filling of certain vacancies in the Corporation, the Act proceeds to provide for the filling of à vacancy in the office of minister of the chureh, Article 6: “and when- “ever à vacancy happens it is the duty of the kirk Session “to require a meeting of the proprietors, pewholders and “ members of the said church, not in arrear of rent, for the “ purpose cé taking the steps necessary for supplying such ‘ VaCancy, electing a Committee of nine by plurality of “ votes, of ne sv «all be proprietors of at least one years “ standing, and the : aining three may be pewhol lers who “ have paid rent for three years pre ceding their election, and are in full communion with the said church, and shall have fall power to take stch steps as to them may seem best “adapted for speedily obtaining à minister, &e., &e” Under the Act of Incorporation certain by-laws were adopted. ticle TL provides that ‘This church and congregation, now in connection with the Established Church of Scotland and adhering to the standards thereof, declure that thev shall continue to adhere to the sud standards, and maintain the form of worship and government of said Church.” Article IE The trustees shall call a general meeting of the congregation

annually, to be held on the twenty-fifth day of Decembe or

should that day fall on a Sabbath, then on the following das

notice « the two p shall ay and finance tion, Two of proprie of rent, an preceling, the other whom the provided, t grounds, it portion th or ten of uregation found, they mäAiV see pr Article LT.

the membe who shall trustees on INISSIONS, to shall also fu his hands w person who and pay the the rents 0 advance fro be then du by-laws it must have three years vation in t pewholders, recular sitte collective ly.

book, kept | pews, pew | vidual rents trustees tha vation.” Ar!

pe W holc ler, S can be comp have any she the by-laws church was the form of

h in heir sors on.

5 ts this the the Cotsuit eof :

JS of the tion the and red Ra u tlu urch tion {for the

pol LIT hen- SION and jus

and lave best

ider

notice of which must be given from the precentor's desk on the two preceding Sabbaths: at which meeting the trustees shall lay before the congregation a statement of all accounts and financial matters connected with the church and congregution. Two auditors shall be appointed by those present, —say of proprietors of at least on year’s standing and not in arrear of rent, and peiwholders who have paid re nt Jor the two years preceding,—one of which auditors must be à proprietor, and the other may be x pewholder, both qualifiel as above, to whom the accounts shail be submitted for examination, And provided, that upon the report of the auditors, or on other grounds, it may appear that the funds of the church, or any portion thereof, shall have been misapplied, the proprietors, or ten of them, may call a general meeting of the concregation to consider the same: and if any defalcation be found, they shall be empowered to take such steps as they may see proper to secure the interests of the congregation.” Article HI." At the general meeting of the congregation, the members present, qualitied as above, shall elect à treasurer who shall receive and pay all moneys, by order of the trustees only; he shall prepare a statement of his intromissions, to be laid before the general annual meeting. He shall also furnish the trustees with a statement of the funds in his hands whenever they shall require it.” Article X.—‘* Any person who shall lease à pew from the trustees for one year, and pay the rent in advance shall be considered à pewholder : the rents of pews and sittings are to be paid annually in advance from the first day of Januar y, and are considered to be then due; the current yisv is included when in these by-laws it is statel as an qualification that the individuals must have paid rent for three years, an are members of three years’ et &e. Article AIL.-—"*The term congregation in these by- aws inplies the proprietors of pews, pewholders, members in full communion with the church, and revular sitters, whose names are entered in the church books collectively.” Article XV. “The trustees shall enter in a book, kept for the purpose, the names of the proprietors of pews, pew holders and sitters: when more than one individual rents à pew, they shall all give their names to the trustees that they may ‘be entered on the roll of the congresation.” Article XXI—* Every person, whether proprietor, pewholder, sitter, or member of this church, shall, before they can be competeht to elect or Le elected to any office, or to have any share in the management of this church, subscribe the by-luws." It is clear, from these provisions, that this church was or the benefit of the congregation according to the form of worship and government of the Established

Church of Scotland. [It is very much to be regretted, st either in this Act or in the by-laws, which were passed ir IS51, provisions affecting questions which have arisen in this case had not been put on a footing more clearly enunciatell. It is evident that this church was not vested in these trustees for the purpose of letting or not letting, for the purpose of doing with reference to the congregation worshipping i in it as might seein right in their own eyes, but they held the church for the use and behoof of the congrewation at large, and they had no arbitrary discretion in the matter, nor right to treat the church as 1f it were their private property ; either to gratify their own feelings or carry out their own individual views. To find out what rights the congregation had in this church, may we not fairly, must we not rather, look at what rights congregations have in the Church of Scotland, necording to the forin of Worship and government of that Church. As judicial notice cannot be taken of what the rules and regulations of that Church are, they must be proved. It is to be regretted that in this action this was not proved in a clearer manner, so that it could be easily understood, and we could be guided in the matter by something more distinct than appears in this case. The very words of the minister of this church. que by the learned Chief Justice, show how little reliance can be placed upon that clergyman's idea of what the duties of these trustees were when he us they ul ‘a sort of discretion.” What is the meaning of a “ sort of discretion ? They must have a legal discretion or none at all. The evidence of Rev. Mr. Campbell puts it on à more intelli: gible footing. He says, in effect, the rights in this church and the congregation are as near as may be, analogous to those of the ( ‘hurch of Scotland in Scotland, and the rights of x conuregation there: and he says, that there the congregations are never deprived of their seats: that there such à thing as de pr iving an elder of the church of his seat was never heard of. s long as he was a member of the congregation: and rt the whole evidence together, EF can arrive at no other conclusion than that for a period of seventy years, the constant and uniform usage and practice of this chureh has been that, so long as a party continued in good standing in the church and paid his rent in advance, he had the lease of his pew continued as à matter of course, and that the staniding of a member of the church is a matter to be determined by the church courts and not by the trustees. Chief Justice DoRION, in his judgment (which Funderstand is, on this point quite coneurred in by my learned Brothers on this Bench from Quebec), shows that this is no unusual tenure in Quebec for he says: * under the parochial organization which pre

vails ii ‘the rigl

; resides ‘nally a ‘the cor is not no wrecation rent is pa of OCCUpPV why he sl secured t( and the N sation ar can see 1 holding O1 case to hn have seen sation of does this S] to have n orderly ar church wa reasons al not have crewation ( so enabling TATIL/ behoo) may, from which syst of any one learned C also, find pancy of j and privile two preced chureh.

the trustee ing the pe that any pi are to pay could not b the clause 1 for a year, of the matt to be paid î means, Ï t| tenant righ:

hat l'in this tel.

tees e of it as arch hey rest r to dual this vhat or«ich.

and is to d'in and tinct er Of how æ Of hu tot t all.

telliund se ot con- S are u us eard and t no ears, urch ding lease anilined stie mnt neh bec pre

vuls in Quebec, with reference to Roman Catholie churches

the right of the lessee of à pew to retain it as long as he ‘resides in the parish on payment of the annual rent origi- ‘nally agreed upon, unless there be à written agreement to “the contrary, is undoubted.” The contention, therefore,

is not novel, that in this chureh the pews are let to the concregation, the rent being payable in advance: that when the

rent is paid in advance the lessce continues to have the right

of occupying the pew until some good cause can be shewn why he should be deprived of it, and therebv of the benefit secured to the members of the congregation by the tirst deed

and the Statute passed in 1849. The members of the congregation are certainly entitled to the use of the church, and I

can see nothing unreasonable in the mode of allotment and holding of seats in conformity with the usage prove in this

case to have existed, and which Chief Justice DORION, as we have seen, says was in accordance with the parochial organi-

Ÿ sation of the lar gest church in the Province of Quebec. Nor 5 doesthis system appear to have produced any inconvenience or 5 to have in any way interfered with the accommodation or orderly and convenient seating of all for whose benetit the chureh was organized and incorporated. On the contrary, the reasons are very obvious to my mind why the trustees should

D not have an arbitrary right to deprive members of the con- À cregation of church privileges, by depriving them of pews and so enabling them practically to hold the church not for the use «nd behoof of the congregation, but for those only whom they may, from time to time, choose to permit to enjoy its use, and which system appeurs to have worked without the oceurence of any one of all those numerous difficulties suggested by the 4 learned Chief Justice ns possible toarise, Î may mention Z also, L find in these by-laws the idea of continuity of occu- HN pancy of pewholders el arly recongnized, and certain rights and privileges given, as for instance : Whoever paid rent for 2 two pre eding years is enabled to elect certain officers in the À church. It is to be observed also, that instead of saying that " the trustees shall make fresh agreements each vear for rent- NO ing the pews for each and every year, Article 10 declares that any persons who shall lease or rent pews and sittings, are to pay for them annually in advance. That provision could not be necessary if they were to be leased every vear, EU the clause would then be meaningless. Ifthey were leased' ouly for a year, and paid for in advance, there would be an end

of the matter; but it says “the rents of pews and sittings are

to be paid annually in advance” What does that mean ? It means, E think, that having got the right of pre-emption or

2 tenantright-if may use the term they go on exercising'it,

s0 RAPPORTS JUDICIAIRES REVISÉS

ing from veur to year in advance, and if they do se, par in pire “e they forfeit the right to the occupaney of the pew. avance 4 li be consider rod due, if it all rests on one RUE o sic 2 # Xe sible agreement to be made each ER EN O es would be nothing due, in that case, unti rs ne made, nothing due if the rent must he pre in ! À ; + of incorporation and by-laws, fixing the qua . ae as electors ns those holl ling pews A Er dia Lois vear, in connection with the a ‘of the or i es » CONC mn at which ave arrived. à, Lt A en end by the learned Chief Justice Lu . ve but they have ! not arisen in this church in seventy- Marc and it is clear the an dr did HE Se l by the learne ef from any of those causes put for pis 1 nets ice, F he trustees (and possibly à majority nr die à desiring to do indirectly what Be 4 “do legally and directly. [t is absolutely nec: ssar) a Pré | | ake some reference to the unhappy differences dE "A DE K ( therwise E should not do so. One reason na Méterie them is to show there was no cause why the Pantift should be deprived of his pes si PAR Ie atfects the damages to be awarded to t 1is es 5 de », 1 / » of these difficulties to the action of the ministe / Hi in changing the forms or modes of worship in the churc

church, which was diststeful to the Appellant in this suit and

to others, à minority in the church. 1 HA biais Ha ne know individually, as a member of a church, an AM Le | having been called upon to decide questions gros sn of difficulties arising from cases of that sort, that ing ous we ing more calculated to introduce an inharmonious ue re bah than departing from ancient usages of the A nb forms and observances that the congreno Av not necustomed to. | If parties ae & je RES under such cireumstances : while L do not mean t * ne ma not be such changes as they might not be boun | : e RAA to, 1 think their arn NN LR .

6s — œ o be Qi a ag : Lan tHeé changes, other ditficulties arose, Dons ie cape À the Appellant in this case put forw: . a ns sent without sufficient rates Ar ie ù ‘su )0SC0C ( ] Le pare bare Adi dt his minister with de re re Et . er and under circumstances f cor " ol | approve of, because, ae : re) to contradict another pointely and unequivocal ÿ, Re Id have been well assured he had used all means to Ra neétion to justify him in putting forward a con

tradiction contradic was far tr the chure That is a into the used the that a mar the statem statement ling the the Plainti tement to discussion be wantiné incorrectne informatior forward th ed. After and, then, t Plaintitf as dence in t church, the to their con that they à Courts, and seems alèo t gregation, h have the ma dealt with a and proper or right to Johnston W first conde tribunal, Je office of stla mi, ister, or « à large majo ridl of him as legally and action as wot assent to the not do legall:

refuse to al 4 pewholder, à iember of t that way, wh TOME

in W.

are

‘he of an ny ay ice ty rise hief the uld hat nees iSON the s, it the the ithe and | ju- "OWthat ious the grebrity here d to r be It ‘ose, rd a S he line, e to that fore illy, s Lo