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instrumentality of the Courts established in the church for adjudicating on such matters, When they adopted that course, they were not, in my opinion, exercising a reasonable or a legal discretion — they were not withholding the pew from Mr Johnston for any reasonable, legitimate or proper cause ; they were simply endeavouring to gratify their own feeling, with regard to his (in their Opinion) obnoxious position in the church as an elder. They were endeavouring to use the power they had in the church as trustees, in a manner which, I think, the laws of tne Church of Scotland, the original deed of the church, the charter of the church, and the articles of the church never contemplat ted, and in à manner not justified by any precedent in the church, but directiy contrury to the uniform usage and practice of the church from its foundation. I cannot think it was ever contemplated that trustees should coerce or tven out an elder of that church, by using a power over the pew: in the way in which they did in this case. I make this chservation here more particularly with reference to damages ; for the very circumstarces of their feeling, and avowing, the ÿ were accomplishing an object in that way which they had tricd before and could not accomplish by legal means, rendered their conduct all the more irregular, and in my opinion, improper. The way in which they carried out their purpose was equally objectionable. Considering the Plaintiff was an elder in the church ; considering the number of years he was a member of the congregation, and his position ‘in the churcn ; sending, without any notice, by a common carter, all those articles used in his pew in the church, and putting them into his place of business, was not treatment such as he should have expected. He was an officer of the church (for an elder is à high officer), and this conduct was certainly not what he had a right to expect. This, and the placarding of his pew afterwards, was all done with one object evidently, to drive him from the eldership, if not from the church. If he had done any thing to entitle him to be driven from his eldership and from the church, that should have been established in the spiritual tribunals of the church, and not by the trustees in the way in which they have, so contrary to the spirit of the laws and government of the chureh. In view of all these circumstances, I am constrained to the conclusion that the Plaintiff has been wronged, in being practically turned out of this church, when he ought not to have been. I think this Court ought so to decide, and adjudge him such reasonuble damages as while not of a vindictive character, will serve to warn persons situated as these trustees, against such an improper exercise of the duties of their office. There is no more delicate position than that of an officer of a church who exercises such functions as

these, 1 will aln and if t man's f( God—it or the w that me and in their du church.

dama ges There 1s variance ciples an and docti We shonl of this ki ofthis ju have beer Justice ( to justify all I can & of the Ch these case fused to a such rules as à body, Legislatur adjudicate in the sol make, I tr that it wi] believe thd One year, t in advance necessary him of it, referred to [do not me to Say trustees, in that pew w vance, Un the Court b this case sl full costs i in

y h 1e er k, he ch *eni n- 1ld ver LE nee ind ich ans, opi- Jurwas he the ,üll en uld \der & he pe w him any rom tual y in and es, Ï een rhen so to rhile uutthan

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DE LA PROVINCE DE QUÉBEC. Sa

these. Every man loves his church ; every man feels that he will almost lose his life rather than his rights in his church, and if there is anything in this world calculated to arouse a man's feelings—and laudably so, for it is between him and his (God—it seems to be an interference between him and his God, or the worship of his God, at all events. Therefore, I say it is that men’s feelings are always keen on matters of this kind, and in persons in office ir a church should not in disregard of their duty, deprive people wrongfully of t:.eir rights in the church. If they do, they must expect to be mulcted in such damages as will prevent a recurrence of the wrong doing. There is nothing more unseemly than à congregation at variance among themselves. It is at variance with the principles and doctrines inculcated in the church—with the life and doctrines of the blessed Saviour they go there to worship. Ve should do everything in our power, in adjudicating cases of this kind, to prevent these difficulties arising,and if the result of this judgment should be such that these difliculties which have been so strongly pointed out by His Lordship the Chiet Justice (which, I humbly think, have not arisen in this case to justify the action of the trustees), should become apparent, all I can say is, if the regulations of this church and the laws of the Church of Scotland are not sufficiently elastic to meet thesé cases, I am perfectly sure the right has never been refused to any church (in our province at all events) to make such rules and regulations for the management of their affairs as à body, as they may think right and proper, and may to the Legislature seem reasonable. Regretting Î am called upon to adjudicate upon this case ; regretting the observations which, in the solemn discharge of my duty, I am called upon to make, I trust that all parties will re-consider this matter, and that it will lead to an amicable arrangement among them. I believe the Plaintiff had the right, when he had the pew for one year, to keep it so long as he continued paying pew rent in advance, unless, indeed, some good cause, which it is not necessary for me to specify, should be shown for depriving him of it, I will not say there muy not be many matters referred to which might not be sufficient for suspending him. [do not say that might not be done, but it is sufficient for me to say nothing appears in this case that warrants the trustees, in my opinion, in depriving him of the right to have that pew when he was willing to pay for it annually in advance, Under these circumstances, [ think the judgment of the Court below should be reversed, and the Defendants in

this case should be condemned to pay $300 damages, with full costs in all the Courts.

S4 RAPPORTS JUDICIAIRES REVISÉS

STRONG, J.: This action is, as I read the declaration, brought to recover damages for disturbing the Plaintiff in his enjoyment of pew n° 68, in St. Andrew's Church, in the city of Montreal. It is confined to the wrong alleged to have been done to the Plaintiff in respect of this particular pew, and does not make the case that Plaintiff was illegally excluded from the church altogether ; and, if it had made such a case the evidence clearly would not have supported that pretension. It becomes material then to ascertain, in the first place, what was the Plaintiffs title to the pew 68, at the time of the disturbance of Plaintiffs possession, in the month of January, 1873. The opinion I have formed, after consulting all the authorities cited in the factums and at the Bar, and several others, is that the contract entered into between the Plaintift and the Defendants, the trustees, under which the Plaintiffoccupied this pewn° 68, during the year 1872, wes a verbal lease — à character which the Plaintiff himself attributes to it in his declaration. The Plaintiff then proves a title precisely as he alleges it in his declaration, as a lessee for the year ending on the 31st December, 1872, under a verbal contract with the Defendant, at a rental of 866.50. By the law of the Province of the Quebec, a lease for a short term, less than nine years...entirely unlike such a contract in English law... gives no right of property to the lessee, but constitutes merely a personal contract between the parties. There is, therefore, much less difliculty than in the case of a similar contract governed by the laws of England, in holding that the right of use of a pew, which involves no interest in the property in the church or in the pew itself, may be made the subject of a lease. The absolute sale of a right to use a pew has been held in England to confer no right of property in the soil, but merely a right in the nature of an easement or servitude, though, of course, not an easement or servitude proper (Hinde vs Charlton) (1) Article 1608 of the Civil Code of Lower Canada contains a provision not in terms expressed in the Code Napoléon, though it appears to be universally considered as the law of France also : “ Incorporeal things may be leased or hired, “ except such as are inseparably attached to the person. If at- “ tached to a corporeal thing, as a right of servitude, they can “only be leased with such thing.” There seems, then, no reason why a contract conferring a right to use a pew in the manner in which such property is generally used, namely, by occupancy during divine service, should not be as much a lease as the right to work a mine or quarry, or the right conferred by contract on a particuiar person, not amounting to

(1) LR, 2 CP. p. 104,

a servitt Way or commen a lense, (7th edi “une pl “ loue tré “ d'étalug “ récolte “ dans u same efte to the cor pancy of character ifitisa] Kerr, wh made taci the Civil leases, wh.

ding to th would be i even thou case) to ha identical w differs in r toms of the months ; à (4th Repor “upon Art “the delay Commentat Was inaccu in the case sequently though the apply. Ma conclusion:

“ pas nécess importe), also Duverg

(1) Vol. 6, P, (2) T. 18, no, (3) T. 17, no

(4) Du lotage

a servitude in favor of another property, to use a right of way or passage. In all these cases, IT find several of the commentators on the Code Napoléon, treating the contract as a lense. Marcadé, on Article 1713 of the Code Civil, at p. 442 (Th edition) says : “ On ne loue pas une église, un cimetière,

‘une place publique, une grande route, un fleuve : mais on { ‘ loue très bien des places dans une église, des emplacements

‘d'étalages de marchands sur la voie publique, le droit de è nn les fruits et l’herbe d'un cimetière, le droit de pêche “ dans un fleuve” Other authorities are to be found to the same effect. I can see, therefore, no objection to attributing to the contract which the Plaintiff entered into, for the occupancy of the pew for the year 1872, the denomination and character of à lease as the Plaintiff himself has done. Then if it is à Jease, one of the learned counsel for the Appellants, M. Kerr, whilst he concedes that the notice of the 7th December made tacite reconduction impossible, invokes Article 1657 of the Civil Code (L. C.), which, he says, must apply to all verbal leases, whether made for fixed and certain term or not. According to the strict letter of article 1657, three months’ notice would be in all cases necessary to put an ent to a verbal lease, even though it should be proved or axdmitted (as in the present case) to have been for a term certain. The Article 1657 is almost identical with Article 1736 of the French Code, which only differs in requiring aotice to be given, according to the customs of the place, instead of fixing an invariable delay of three months ; and the commissioners of the Code in their Report (4th Report, p. 29), say of the Article that “it is based partly “upon Article 1736, C. N, but goes beyond it in specifying “the delay of the notice required to be given.” Then the commentatc:; seem to be all of accord that the Article 1736 was inaccurately drawn, and that notice was only necessary in the case of a verbal lease for an uncertain term, and consequently where the duration of the lease is ascertained, though the contract may be verbal, the Article does not apply. Marcadé after discussing this Article, comes to the conclusion: “ [1 faut donc dire que le congé sera ou ne sera

“pas nécessaire, selon que la convention (écrite ou verbale, peu

importe), laisse, ou non, indéfinie la durée du bail.” (1) See also Duvergier (2); Duranton, (3); Troplong (4); Zachariæ

(1) Vol. 6, Page 481 ; (2) T. 18, no, 485 ;

(3) T. 17, no 116 ;

(4) Du lorage, no 404 ;

(1); Demante, (2); and Laurent (3). This, I gather from the judgment of Mr. Justice SANBORN, was also discussed and decided in the case of Webster vs Lamontagne (4), though the report of that case in the Lower Canada Jurist does not show that very clearly. The lease was, of course, subject to the requirements, as to proof, of article 1233, and as the rental was upwards of $50 it could not have been established by the testimony of witnesses ; all difficulty on this head is, however, removed by vue clear admission of the Plaintiff. The consequence is that the lease came to an end, without any notice, on the 31st December, 1872, at which date, in my opinion, the Plaintiff ceased to have any legal right to occupy the pew n° 68. The Plaintitf seems to have considered himself, that his right terminated at the end of the year, for, as Mr. Justice Monk points out, his tender of the rent for 1873 implied a recognition by him of the necessity for a new lease on which to found his title to the continued occupancy of the pew. Nothing is to be found in the Act of Incorporation, or in the by-laws made persuant to it, giving colour to the contention that a contract for the lease of a pew for a year shall be construcd not to mean what the parties agreed to, but shall be intended to be a lease for an indeterminate period, possibly for the life of the lessee. Then, with reference to the usage applicable to the holders of pews in the Roman Catholic Churches in Lower Cañada, upon which the judgment of the learned Chief Justice of the Court of Queen's Bench proceeds, I would venture, with great deference to an authority of so much weight, to suggest that in the cases to which the Chief Justice refers, the lease of the pew being indeterminate as to duration, custom has provided for that, on which the parties have been silent, and has annexed to the contract the term that the lessce shall have the occupation of it as long as he resides in the parish, but I do not understand, from the statement of the law, which the Chief Justice gives in his judgment, that the usage would override the express contract of the parties, and that in a case like the present, where there was a lease of a pew for a year certain, this usage would entitle the lessee to insist on a right of occupancy as long as he remained a parishioner Moreover, I should doubt, though on this point I hesitate to express an opinion, whether the rules applicable to the parish

(1) Par Massé & Vergé, T. 4, no 383, Note 11 ; (2) T. 7, Pages 268, 269 ;

(3) T. 25, Page 349 ;

(4) 19 L. C. Jur., p. 106, and suprä, p. 48.

church cation the Leg of the 1 Scotlan Church in the at à lo prevale lease, in of the p occupati had bee atior of an impo applicab and, the be assir associati has been pewhold within $ been give on the s of course what the leases, is than to r rights of far short matter ol having b can be pr custom.

Canada, « interprete “tomary “be not “ contract also to 8 are inci these art consequen parties me that the extended 1160 of t}

the and agh not the

Was the ver, 18eice, ion, the self, for, rent sity conthe o it, e Of the ran ssee, rs Of ada, the reat that se of prohas à the I do the uld in à for t on ner.

to rish

churches in Lower Canada would apply at all to the congrewation of a voluntary religious body, regulated by an Act of the Legislature similar to that which forms the crganic law of the ‘Respondents’ corporation. As to the law applicable in Scotland to pews in churches belonging to the Estublished Church there, I find no reference to that law or usage, either in the Act of Parliament or in the by-laws, and I œn at a loss to understand any principle on which customs prevalent in Scotland can be imported into this contract of lease, in such a manner as to override the express agreement of the parties. If it could be shown that these rules as to the occupation of pews in churches of the Scotch Establishment, had been expressly or by implication adopted by the Corporatior of Saint-Andrew’s Church, they would, of course, have an important bearing, and the law of Scotland might be made applicable, but there 1s no evidence to show any such adoption, and, therefore, the rights of pewholders, in this church, are to be assimilated, rather to those of other voluntary religious associations, than to those of pewholders in Scotland. Then it has been argued that some usage or custom not to disturb à pewholding lessee in the occupation of his pew, has existed within Saint-Andrew’s Church itself. Some testimony has been given by witnesses who rather state their own opinions on the subject than prove th: fact of such a usage, which is, of course, not the proper way to prove a custom. Moreover, what these witnesses speak of, as to this usage of continuing leases, is to be referred rath:r to courtesy and good feeling than to right, so that, even if it were admissible to trect the rights of the parties in this way, the evidence would fall very far short of establishing any binding custom. But surely as matter of law it is out of the question to say that a lease having been made for a fixed term of one year, such a lease can be prolonged indefinitely by the proof of any usage or custom. Articles 1017 and 1024 of the Civil Code of Lower Canada, certainly do provide for a reference to usage in the interpretation of contracts. Article 1017 provides : “The cus- “tomary clauses must be supplied in contracts, although they “be not expressed.” And Article 1024: “ The ‘obligation of a “contract extends not only to what is expressed in it, but “also to all the consequences which, by equity, usage or law, “are incident to the contract, according to its nature.” But these articles only mean that all natural incidents and consequences flowing from the expressed agreement of the parties may be added to it, by proof of usage. It is not meant that the express contracts of parties may be overruled or extended by usage. Larombière, in his commentary on Article 1160 of the Code Napoléon (corresponding to Article 1017 of

the Civil Code of Quebec) states this very decisively. He says : (Obligations, vol. I, p. 629) : “ Mais uniquement destiné à “ suppléer le silence du contrat, l'usage ne peut prévaloir “ contre les prévisions expresses des parties, ni contre les “ dispositions formelles de la loi. (Celles-ci cominandent, “ celles-là dérogent, et toutes deux retirent à l’usage une “ puissance qu'il ne peut et ne doit exercer qu’en l'absence “ d'un texte explicite de la loi, ou d’une clause dérogatoire des “ contractants.” I consider it just as much beyond the power of the Plaintiff to control or add anything inconsistent to the terms of the lease, as if, instead of it having been made verbally, it had been made in the most solemn and authentic manner known to the law, by a notarial instrument, in which the contract of the parties was recorded as a lease for one year, and no longer. Surely, in that case, violence could not be done to the agreement of the parties by any evidence of usage or custom, however clear and decisive. Referring to the authorities on English law, the rule as to annexing incidents to mercantile contracts or leases, by evidence of custom or usage, is governed in that jurisprudence by principles precisely similar to those 1 have mentioned. (1) If the Respondents had a right to take possession of the pew, their manner of exercising that right, provided théy were guilty of no excess, cannot be called in question. This is in accordance with a well known rule of the Roman law, which, I apprehend, finds a place in all systems of jurisprudence. (2) There can, therefore, be no enquiry quo animo a party exercises his undoubted right. At all events, this is the law of England (3), and I find the law laid down in precisely the same terms in a reported decision of the Court of Queen's Bench for Lower Canada (4). I think the appeal should be dismissed, with costs.

TASCHEREAU, J.: The appellant, as a member of the congregation of Saint - Andrew’s Church, Montreal, brought against the Respondents, in the Superior Court, in that city, an action upon the case, complaining of their refusal to allow him to continue, in 1873, in the peaceful occupation of a certain pew, known as No. 68, in the church above mentioned. He alleges, in his declaration, that, from the year 1867 to 1873, he was lessee of that pew, from the Respondents, at a

(1) Leake, on Contracts, pp. 111-115 ; Webb vs Plummer, 2 B. & Ald., 746 ; Clarke vs. Roystone, 13 M. & W., 752.

(2) Dig. de Reg. Jur., L. 151. :

(3) William’s notes to Saunders, pp. 18, 19.

(4) David vs Thomas, 1 L. C. Jurist, p. 69, and 22 KR. J. R, Q., p. 285.

yearly that he by-law and ami the yea on the notice commen in the “ 1872, fe of Sail “the 7tl “ sustait “ Mr. Ja ‘“ 4th N “to Mr.

“A. Bu “ Andre “ Montre this notid that he another not let 1 made to rental fo which te refused t was follo another < renewal € a declara other pew standing :

the churc of Januar tinued to Without « Responde:

68 for the He then :

he was m to such ar attendanc to put up there by l his cushio pasted in

He né à aloir » les lent,

une ence > des Dwer nade entic hich * one 1 not ce of 1g to >Xing ce of e by 1) If pew, were 1S in hich, ce. (2) exerw of

the heen’s

ld be

conbught city, allow of a ned.

67 to , at a

yearly rent of 866.50, which sum he paid them regularly, and that he thus became and was a pewholder, under the tenth by-law mude under the Act of Incorporation of Defendants, and amendments thereto. That his holding of pew No. 68 for the year 1872 was by verbal leuse. He further alleges that, on the 7th December, 1872, he received from Respondents a notice that they declined to re-l5t him a pew for the year commencing the 1st day of January, 1873, which notice was in the following words, to wit:.... “ Montreal, 7th December, “1872. Extract from the minutes of meeting of the trustees “ of Saint-Andrew’s Church, held in the vestry, on Saturday “the 7th December inst. It was resolved: That, in order to “sustain the action of the congregation, taken in regard to “ Mr. James Johnston, at its meeting on the evening of the “ 4th November last, the trustees do now decline to let a pew “to Mr. James Johnston for the ensuing year. Carried,—Mr. “A, Buntin, dissenting. (Signed) James Wardlow, Saint “ Andrew's Church, Secretary. To James Johnston, Esq, “ Montreal.” The Aprellant alleges, also, that, on receiving this notice, he wrote a friendly letter to Respondents, saying that he was anxious to continue the lease of his pew for another year. and that, on being informed that they would not let him a pew, he caused a legal tender of #66.50 to be made to Respondents, on or about 20th December, 1872, as rental for the year commencing about 1st January, 1872, which tender was refused by Respondents, who further refused to let him a pew for any sum. He alleges that this was followed by à notarial protest of the same date, and by another on the first juridical day of January, 1873, with a renewal of tender, which was refused by Respondents, with a declaration that they would not let the said pew, or any other pew, to the Appellant. He alleges, further, that notwithstanding said refusal, as an elder and à member of Session of the church, he was present at Divine Service, on the first day of January, 1873, and occupied the pew in question, and continued to occupy it during the first ten days of January, without objection or interference by or on the part of the Respondents, and that he thus became the legal lessee of pew 68 for the year 1873, by tacit renewal (tacite reconduction.) He then states that, subsequently to the 10th January, 1873, he was molested by Respondents in the occupation of his pew, to such an extent, that Appellant’s family was driven from attendance at Divine Service in said church, and that he had to put up with the presence of strangers in his pew, seated there by order of the Respondents. That Respondents had his cushions and books removed from the pew, and put and pasted in his pew placards with the words “ For strangers ”

printed thereon, and, in fact, by several other acts that they treated Appellant as having no right to the occupation of the pew, and did, in fact, act with intent to bring the Appellant into contempt and ridicule, and to force him to leave the church, to his damage of $10,000. The Respondents pleaded that Appellant was no longer a pewholder after the 31st December, 1872, alleging their right to refuse to lease a pew to Appellant, and that, according to the by-laws of the church, they were under no obligation to continue the lease, and, moreover, that they were Tustified in so doing, by a desire for the preservation of peace, and that they acted in good faith. The facts proved in the case justify the av erments of Appellant’s Declaration, and, moreover, establish that the Respondents are à corporate body, by virtue of Chap. 154, 12 Vict, which grants them the property, the administration of the temporalities of the church, for the use and advantage of the congregation. Now, it appears that, in the year 1872, the Appellant gave offence to certain members of the congregation, He was then requested to retire from the eldership, and, having refused, the several resolutions above alluded to were passed, and, as the result of his grievances, the Appellant brought the present action. He has “been unfortunate in the Superior Court, and, on appeal to the Court of Queen's Bench, the Court, by à majority of one out of five judges, has confirmed the judgment which dismissed his action. I must here admit that the receipt for the rent constitutes a lease of that pew for the year commencing 1st January, 1872, and ending 31st December, 1872. Such a lease, under general terms, would terminate with the year, and a tacite reconduction could not for a moment be inferred, according to Article 1657 of Civil Code; but I am of opinion that the rule of law applicable, according to our Civil Code, to a lease of an immoveable property, is not applicable to a lense of a pew. The Appellant contends that, according to the rules of the church, being a member of the congregation and an elder, he was entitled, each year, to the lease of a pew, on payment of the yearly rent, and could not be deprived of that right without a fair trial, by a competent tribunal, not composed of persons such as the trustees, whose authority he energetically denies, but of the kirk Session. I adopt in this cause this view of the Appellant. It is undeniable that, according to the usage of that church, a member, once a lessee of a pew, can continue to hold it, by paying the usua! rent and remaining a member of the church, unless he be guilty of immoral behaviour, and, in that case,the member can only be deprived of his pew by the kirk Session. They alone were entitled to pass a vote of censure against the Appellant, and settle the

difficult compar powers ( church,.

powers | IOth Ai 9th Ar member conform the priv merits € Respond towards contradid must be was som more tha ance he specially of the ric in which other pe from his towards & offensive, fore disp:

Appellant ofitin th a member kirk Sess:

treatment conduct o FOURNI l'année 18 dans l’égl légalemen sation, en par les int suivant le cette cong en corpor lui donne, droits et P holders), s et les cout ment, Kn (elder) et «

they f the Hant the aded , Dew to urch, and, re for aith.

ppelspon- Vict., f the f the ), the ngrership, ed to elant n the ench, , has must se of >, and neral eCONg to b rule se of pew. der, ment right ed of cally this o the +, can ing à 1 berived ed to the

dificulty. Moreover, the Respondents are mere trustees, to be compared to procurators and agents, with the very limited powers given to them by the constitution and by-laws of the church,.... and nowhere can I find such extraordinary powers as those claimed by the Respondents as trustees. The 10th Article of the by-laws, read in connection with the th Article, cleurly shews that, once lessee of à pew, a member of the congregation, by paying the annual rent and conforming to the rules of the congregation, is entitled to all the privileges belonging to the proprietors. Now, as to the merits of the case relating to the justification set up by Respondents, T admit that the language of the Appellant towards his minister was not the most polite, having flatly contradicted him on a question of facts; but some allowance must be made for the excitement of the moment ; and, if he was somewhat wrong in the beginning, his fault was certainly more than compensated and atoned for, by the petty annoyance he was subjected to on the part of the trustees, and specially by the unfair and illegal resolution to deprive him of the right to a pew. Having no authority, in the capacity in which they acted, to refuse to re-let pew No. 68, or any other pew, which was tantamount to an excominunication from his church, the conduct and language of the trustees, towards à man of character and energy, must have been very offensive, and of a nature to wound his feelings. [am therefore disposed to allow the appeal. I am of opinion that Appellant was entitled to his pew, and could not be deprived of it in this manner, so long as he paid the rent and remained a member of the corporation, unless he be expelled by the kirk Session. I would allow him $300 damages, for the illtreatment and vexations he has been subjected to, by the conduct of the Respondents, with full costs in all the Courts.

FOURNIER, J.: L'appelant a, depuis l’année 1867, jusqu’à l'année 1872 inclusivement, continuellement occupé un banc dans l’église Saint-André de Montréal. En 1872, il occupait légalement le banc No. 68, comme membre de cette congrégation, en vertu d’un bail verbal qui lui avait été consenti par les intimés, à raison de $66.50 par année, payable d'avance suivant les règlements adoptés pour la régie des affaires de cette congrégation et l'acte de 12 Vict., ch. 154, qui l’a érigée en corporation. La qualité de locataire de banc (pewholder) lui donne, en vertu de l’article 12 de ces règlements, tous les droits et privilèges appartenant aux locataires de bancs (pewholders), suivant la constitution, les règlements, la pratique, et les coutumes de l’église Saint-André depuis son établissement. En 1871, l'appelant fut élu un des officiers spirituels (elder) et occupa cette position jusqu’à l’époque du grief dont

il se plaint dans sa déclaration. Le 7 décembre 1872, les intimés lui firent remettre l'avis suivant: “It was resolved that “in order to sustain the action of the congregation taken in “regard to Mr. James Johnston (the Appellant) at its meet- ‘ing of the 4th November last, the trustees do now decline “* ‘et a pew to him for the ensuing year. Carried, Mr. A. “ Buntin dissenting.” L'appelant, nonobstant cet avis, informa les intimés qu'il entendait conserver la jouissance de son banc. Afin de se conformer à l'obligation de payer d'avance, il fit faire deux fois, en décembre 1872, et, une autre fois, le 2 janvier 1873, jour de l'échéance, des offres réelles du montant du loyer du banc en question. Malgré le refus de ces offres, il continua d'occuper le banc pendant quelque temps ; mais les syndics, ayant fait mettre des blasardé imprimés, indiquant qu'ils avaient mis ce banc à la disposition des étrangers, dont quelques-uns prirent possession malgré l’Appelant, ayant de plus fait enlever les coussins et les livres de l’Appelant, qu'ils firent transporter à son bureau d’affaires, ce dernier se trouva enfin forcé d'abandonner son banc pour éviter un plus grand scaudale. Les Intimés ont plaidé, par dénégation générale, et aussi par exception, qu'il n'avait qu'un bail d’un an pour le banc n° 68, et qu'ils avaient le droit de refuser de le lui louer pour une autre année, invoquant spécialement l'usage, de la manière suivante : “ That according to the by-laws, customs and prac- “ tice of the said Church, the pews therein are let each year, ‘and from year to year, and without notice for their termina- “ tion ; that there was no continuation of his lease, and they “ were under no obligation to continue the lease to him.” Ils ajoutaient qu’ils n'avaient pas jugé à propos de lui louer un banc pour l’année 1873, ni pour aucun autre temps : que, le 7 décembre, ils avaient dans leur discrétion décidé de ne pas lui louer de bane, décision qui fut confirmée dans une assemblée générale de la congrégation. La prétention de l’Appelant est, d'après ce qui précède, que, comme membre de la congrégation, et comme locataire de bancs pendant plusieurs années, les Intimés n'avaient pas le droit de le priver de son banc, tant qu’il se conformerait à la condition de payer d'avance. Il prétend de plus que, faute d'avis conformément à l’article 1657 du Code Civil, il y a eu continuation de son bail, par tacite reconduction. La difficulté en cette cause repose entièrement sur la nature du bail fait à l’Appelant par les Intimés dans l'église de St-André à Montréal, d’un banc d'église, sans qu'il ait été fait de conditions spéciales entre les parties. On ne peut considérer comme des baux les différents reçus donnés à l'Appelant, pour constater le paiement de son loyer pendant les cinq années qu’il à occupé un banc dans cette église. Ils sont tous dans la même forme, je ne citerai que le dernier: