LITH
Lada, and ents.
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was made to Cuvillier vs. Aylwin (À); Znre Louis Marois (2); Boswell vs. Kilborn (3). Assuming the Crown has a pre: rogative, they submitted that this was a cause for its exercise. The question raised was whether respondents appointed under à statute had power to dispossess à pewholder of his pew at the end of his year, [The Lord Chancellor: That is : question of construction of an existing contract. Future contracts can be remodelled. What is the importance of this case to justify special indulgence ? | See statute and by-laws, under which the trustees obtained rights which they contend they exercised right!y : 12 Vict.,e. 154,8. 1, by-laws made thereunder on March 11, 1851, 1, 2, 9, 10 and i2 There was a difference of opinion between the Courts below, and the case applies to all other pewholders under existing arrangements.
The judgment of their Lordships was delivered by the Lord Chancellor: This is an application for the exercise by Her Majesty, of her prerogative for the purpose of allowing an appeal to be brought from à judgment of the Supreme Court of Canada. The circumstances under which that judgment
(1). Lorsqu'une loi de la colonie a limité le droit d'appel à un montant déterminé, le Conseil Privé ne recevra pas d'appel dans une cause d'un montant inférieur à celui mentionné dans cette loi. (Curillier et Ayliin, Conscil Privé, 29 novembre 1832, 1 R. J, R. Q., 391).
(2). La loi NS. B.-C, de 1794, 34 Geo. LIT, ch. 6, porte, art. 30, que le jugement de la Cour d'Appel dans la province ‘* sera final dans toutes les causes “où la matitre en litige n’excèdera pas la somme de £500 sterling”. L'art. 43 de la même loi porte que rien de contenu dans cette loi ne sera interprété comme dérogeant à une prérogative quelconque de la couronne, En vertu de Na prérogative, Sa Majesté peut accorder l'appel dans une cause au-dessous de £500, où le débiteur est condamné, comme membre d'une société incorporée, pour un dépôt fait à la société par le demandeur, si d'autres déposants ont aussi intenté des poursuites contre lui pour des dépôts semblables et pour «un montant total excédant de beaucoup £300, quoique le débiteur condamné n’y ait pas un droit absolu aux termes de l'art. 30 ci-dessus mentionné, lequel permet l'appel dans les matières qui peuvent affecter les droits futurs des parties, le jugement dans la première cause, s’il n'était pas infirmé, ayant l'effet de préjuger les autres. Art, 68 C. P. C. de 1897 (Zn re Marois et al., Conseil Privé, 10 février 1862, 10 R. J, R, Q., 153).
(3). Par l’art. 30 de la loi du Conseil Législatif du Bas-Canada, 34 Geo. TIT, ch, 6, appelée ‘ l’Acte de Judicature,” il y à appel de la Cour d'Appel du Canada, à Sa Majesté en son conseil, lorsque la matitre en litige excède £500 sterling. Cetce disposition à été continuée après la substitution de la Cour du Banc de la Reine à la Cour d'Appel, par la loi du Conseil Législatif du Canada, 12 Vict, ch. 37. Lorsque, dans une action pour violation d'un contrat, un verdict à été rendu pour £600 courant (au-dessous de £500 sterling), et que la Cour du Banc de la Reine du Canada a refusé la permission d'appeler en Angleterre, parce que la somme était au-dessous de la valeur appelable, sur demande spéciale à Sa Majesté en conseil, pour permission d'appeler, l'appel sera accordé, par les motifs que, par la loi du Canada, le jugement portait intérêt, ce qui élevait la matière en litige à la valeur appelable ; que des questions importantes de droit maritime étaient soulevées et qu'une poursuite d’une nature semblable était encore pendante. (Boswell et Kiülborn ct al,, Conseil Privé, ler février 1859, 10 R. J, R. Q., 215).
was given are these: À person of the name of Johaston commenced an action in 1873 in the Superior Court of the district of Montreal against the present petitioners, who are the minister and the trustees of SE, Andrews Church, Montreul. The object of that action was to recover damages for what may be called à disturbance in the occupation of à pew in the church. The declaration stated that the plaintitf was lessee of a pew in S4 Andrews Clrurch for several years, and a pewholder under a bye-law made by the trustees of the church. The by-law referred to is the 10th, and it provided that “Any person who shall lease a pew from the trustees for one year and pay the rent in advance, shall be considered à pew. holder ; 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 declaration then stated further that he was the legal lessee of the pew No GS for and during the year from the 1st. of Januury to the 31st. of December, 1S72, by verbal lease, and that on the 7th of December, 1872, he received à notice from the trustees that they declined to relet the pew to him for the year commencing the 1st of January 1873 ; that he did not receive sufficient legal notice, and that he became the legal lesee of the pew for the year commencing the 1Ist of January, 1873, and ending the 31st of December, 1873, by the tacit renewa]l by law provided, Then he complained that the trustees had inflicted damage on his good name and reputation by removing his books from the pew, and his hassocks, and by placing strangers in the pew, and he claimed damages $10,000. On the other hand the present petitioners, the trustees, by their pleas averred, in the first place, that the plaintiff was not lessee of the pew No 6$ after the 31st of December, 1872, and that they had a right to refuse to lease it to him after that day ; and, secondly, that according to the by-laws, custom, and practice in the church, the pews were let each year and from year to year, and the trustees were under no obligation to continue the lease, nor was there any continuation thereof without their consent, nor was any notice required of the termination thereof. Then, that when the plaintiff received the notice of the 7th of December, 1872, and frequently afterwards, he ackowledged the right of the trustees to refuse to let him the pew, and waived any pretensions to notice. Then, that the action of the trustees of the 7th of December, 1872, was ratified by the congregation at a general meeting at which the plaintiff was present, and in the proceedings whereof he participated ; and, finally, that all other acts and proceedings had been done in good faith. That being the cause of action, and those the issues raised, the Superior Court of the district of Montreal
ave jude upon the:
Court of peal side Appeal gr.
a majorit, decisiôn < opinion of Joli nston, Court of 4 the Colon judgment Supreme of the Cou ed to pay ages, toget that last ji petitioners peal as a n an appeal question is Canadian such an ap Act. It Is Court shal shall be br Court to 1 of Great [l to Her Ma ing any rig to cxercise tion consist of the secti be brought out of cons the hypoth4 Of (rreat BP the colonie:
much as no of the secti read it, the of the Sup SIve, Saving pleased to e their Lords the petitio Matter of ri
ant ON b of ‘hen
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gave judgment dismissing the action, with costs ; and thereupon there was an appel by the plaintif Johnston to the Court of Queen's Bench for the Province of Quebee, the appeal side; and on the 3rd of February, IS76, the Court of Appeal g.ve judgment (there being a division of opinion, an a majority of three, and a minority of two), supporting the decisin of the primary Court, There had thus been the opinion of two Courts taken, Then the plaintiff in the action, Johnston, appealed to the Supreme Court of Canada, the Court of Appeal for the Dominion of Canada, established by the Colonial Act, 38 Vict., e. 11. That Supreme Court gave judgment on the 28th of June, 1877, and the judgment of the Supreme Court allowed the appeal, reversed the judgments of the Courts below, and ordered the trustees to be condemned to pay to the plaintiff Johnston the sum of K300, for dunages, together with costs in all Courts. It is with reference to that last judgment that the present petition is presented. The petitioners assume that from it they would not have an appeal as a matter of right, but they ask to be allowed to have an appeal by the prerogative of Her Majesty. The first ii stion is, is there in this case à power, notwithstanding the Canadian Act, to allow, if Her Majesty should be so advise d, such an appeal. Now L'will read the section of the Cavadian Act. It is the #7th section :—* The judgment of the Supreme Court shall in all cases be final and conclusive, and no appeal shall be brought from any judgment or order of the Supreme Court to any “Court of Appeal established by the Parliament of Great Britain and Zreland, by which appeals or petitions to Her Majesty in Council may be ordered to be heard, saving any right which Her Majesty m: y be graciously pleased to exercise by virtue of Her Royal prerogativ e.” That section consists of three parts ; the second or intermediate part of the section contains the negative words, “no appeal shall be brought et cetera. Those words their Lordships Aer leave out of conside ration, because they refer to what may be called the hypothetical establishment of à Court by the Parliament OÙ Great Brituin and Zrelund, by which C ourt appeals from the colonies are supposed to be ordered to be heard; and innsmuch as no Court of that kind has been established, that part of the section may be omitted from our consideration. I will read it, therefore, as if the section ran thus: *“ The judgment of the Supreme Court shall in all cases be final and conclusive, Saving any right which Her Majesty may be graciously ple nsed to exercise “by virtue of Her royal prerogative.” ne their Lordships have no doubt whatever that assuming, : the petitioners do assume, that their power of appeal as a matter of right is not continued, still that Her Majesty’s pre-
rogative to allow an appeal, if so advised, is left entirely untouched and preserved by this section. Therefore their Lord-
ships would have no hesitation, in a proprer case, in advising Her Majesty to allow an appeal upon à judgment of his Court. But the question remains, assuming that there is the power to allow an appeal, is this a case in which the special prerogative of Her Majesty should be exercised ? Up that point their Lordships have been unable to discover any adequate grounds for the special exercise of the prerogative. With regard to the particular amount at issue between the trustees on the one side, and the plaintiff in the action on the other, that of course is the amount of damage which the trustees have been ordered to pay, namely, the sum of $300, à sum far short of the appealable value which has been defined in Canadian cases ; and therefore if the particular value alone is looked to there is not that amount of injury which would justify any special interposition of the prerogative. Then is there any general principle aftecting a number of other cases established by the decision, which should lead their Lordships to overlook the small amount of damage in the particular cuse ? As already pointed out, the issue beween the parties appears to have been simp:y an issue upon the legal constrnction and effect of à particular contract, à contract for the occupation of the pew in question. So far as the declaration and the pleas are concerned, the question apparently raised between the parties was, both of them admitting that the tenure of the pew might properly be styled a lease, whether à pewholder was entitled, under a certain clause in the Civil Code of Cunada,to three months’ notice to quit, by reason of it having been à verbal lease, It is sufficient, with regard to a contest of that kind, to say that the decision of the Court below may either have been right or wrong. Their Lordships express no opinion whatever upon the point, but, whether right or wrong, it is not a decision which can have any bearing or which can occasion any inconvenience with respect to a large number of other cases, If there is any want of perspieuity in the terms under which the pews in this church at present are let, if there be any words in the by-laws of the trustees as to the letting of the pews which have caused a dif-
ference of opinion between the judges of the courts, all that can be most easily remedied, before any other annual letting of the pews, by an alteration of the words of the by-laws. And it appeurs to their Lordships that it would be a departure from the principles which should guide them, when advising Her Majesty as to waen an appeal should be allowed, to advise that an appeal should be allowed merely for the purpose of testing the accurucy of the construction put upon
a parti numbe who as appeal.
magnit this de that thi to allow recomm petition 556).
Soilie WILDE.
CoUR Présd
