Johnstone v. The Minister & Trustees of St. Andrews Church, Montreal

Johnstone v. The Minister & Trustees of St. Andrews Church, Montreal
Collection
Supreme Court Judgments
Date
1877-06-28
Report
(1877) 1 SCR 235
Judges
Ritchie, William Johnstone; Strong, Samuel Henry; Taschereau, Jean-Thomas; Henry, William Alexander; Fournier, Télesphore
On appeal from
Quebec
Subjects
Lease
Decision Content
Supreme Court of Canada
James Johnston v. The Minister And Trustees Of St. Andrews Church Montreal, (1877) 1 SCR 235
Date: 1877-06-28
JAMES JOHNSTON
Appellant;
And
THE MINISTER AND TRUSTEES OF ST. ANDREWS CHURCH, MONTREAL
Respondent.
PRESENT:—The Chief Justice, and Ritchie, Strong, Taschereau, Fournier, and Henry, J.J.
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE.)
Rights of a pew-holder in St. Andrew's Church, Montreal Refusal to continue lease to a pew-holder by Trustees—Damages.
J., an elder and member of the Congregation of St. Andrew's Church, Montreal, had been a pew-holder in St. Andrew's Church continuously from 1867 to 1872, inclusive. In 1869 and 1872 he occupied pew No. 68, and received for the rental of 1872 a receipt in the following words :
"66.50. MONTREAL, January 9th, 1872.
"Received from James Johnston the sum of sixty-six 50/100 dollars, being rent of first-class pew No. 68, in St. Andrew's Church, Beaver Hall for the year 1872.
"For the Trustees,
“J. Clements.”
On the 7th December, 1872, the Trustees notified J. that they would not let him a pew for the following year. J. thereupon tendered them the rental for the next year, in advance. On several occasions in 1873, and while still an elder and member of the congregation, he was disturbed in the possession of pew No. 68, by the Respondents, the pew having been placarded " For Strangers," strangers seated in it his books and cushions removed, &c. For these torts he brought an action against Respondents, claiming $10,000 damages.
Held: that J., being an elder and member of the Congregation of St. Andrew's Church, Montreal, as such lessee, having tendered the rent in advance, was, under the by-laws, custom and usage and constitution of St. Andrew's Church, entitled to a continuance of his lease of the pew for the year 1873, and that reasonable, but not vindictive, damages should be allowed viz. $300. (The Chief Justice and Strong, J., dissenting). APPEAL from the Court of Queen's Bench for Lower Canada (Appeal side) confirming ([1]) the judgment of the Superior Court for Lower Canada, sitting in the District of Montreal, dismissing an action for damages brought by Appellant against the Respondents for refusing to allow him to continue in the occupation of pew No 688 in St. Andrew's Church in the City of Montreal
In his declaration the Plaintiff alleged :
1st. That from 1867 to 1873 inclusive and continuously, he was lessee of pews from the Defendants in St. Andrew's Church Montreal.
2nd. That he was the legal lessee, holder and occupant of pew No. 68 for the year 1872.
3rd. That by his previous leasing and pewholding he became and was a pewholder in St. Andrew's Church, under the 10th by-law in the Act of Incorporation of Defendants and amendments,
4th. That his holding of pew No, 68 for the year 1872 was by verbal lease.
5th. That he was an elder and member of session of the church.
6th. That he was the legal lessee of said pew 68, for the year commencing 1st January, 1873, and ending 31st December, 1873, by tacit renewal.
7th. That Defendants declined to let Plaintiff a pew for the year commencing 1st January, 1873.
8th. That Plaintiff on the 20th December 1872 and on the first juridical day of 1873, tendered the amount of rental to the Defendants notarially for a pew for the year 1873, and that Defendants refused to let "said pew 68 or any other pew in the said church to Plaintiff."
9th. That Plaintiff being the legal lessee and holder of pew 68 for the year 1873, the Defendants annoyed and disturbed him in his use and occupation of it, by pasting upon it printed placards containing the words for strangers," by removing his books and placing other books in it, by discommoding him by placing strangers in it without his consent, by removing his cushions and hassocks from it to his warehouse.
10th. That the Defendants acted " as aforesaid, maliciously and knowingly, and with intent to bring " Plaintiff into contempt, ridicule, disgrace, &c. ' and that " by reason of the said illegal, unjust, scandalous, malicious and defamatory conduct of Defend " ants, Plaintiff hath been and is greatly injured in his "good name, fame and reputation, &c.; and hath, " by reason of ALL THE SAID PREMISES, suffered loss a and damage, the whole to the damage of the said " Plaintiff at Montreal aforesaid, of ten thousand d dollars currency of Canada " and concluded as follows: " wherefore Plaintiff making option of a trial " by jury, and praying acte of said option further prays " acte of the sufficiency of his said tenders for rental " for said pew made to Defendants previous to the " institution of this action for the said year, commencing the first day of January, 1873, and ending the 3 31st day of December, 1873, as also of the tender and "deposit herewith made and renewed, and further "prays that the Defendants may be adjudged and condemned to pay and satisfy to Plaintiff the sum of ten " thousand dollars, currency of Canada, with interest a and costs of suit, and of exhibits, out of the amount h herewith deposited, in so far as it may be sufficient "distracts in favor of the undersigned Attorney."
To this declaration the Defendants pleaded: First, the general issue; and secondly, a special plea averring:
1st. That Plaintiff was not a pewholder or lessee of a pew in St. Andrew's Church after the 31st December, 1872.
2nd. That they had a right to refuse pew 68 for the year 1873.
3rd. That by the by-laws, customs and practice in the church, the pews are let each year and from year to year, and the lease expires at the end of each year • that there is no continuation without a consent, and no notice required to discontinue.
4th. That it was undesirable and inexpedient to let pew 68 to Plaintiff for the year commencing the 1st day of January, 1873, or for any other time, and in the exercise of their discretion, and in good faith, without malice, or any other than conscientious motives, and with a desire to fulfil their duties, and for the preservation of peace and harmony in the congregation, the Defendants did, to wit, on the 7th day of December, 1872 decide and determine not to let a pew to Plaintiff.
5th. That on the 25th December, 1872, the congregation, in a general meeting, at which Plaintiff was present, and in the proceedings whereof he participated, confirmed this action of the trustees.
6th. That the Plaintiff then and thereafter acquiesced in said decision of the Defendants, and admitted that he was not the lessee of pew No. 68, and the Defendants thereafter desired to accommodate strangers in said pew, there being no other pew in the church available for the purpose, but the Plaintiff wrongfully disturbed and interrupted the use of the said pew by strangers and injured and caused damage in the premises of the Defendants; but himself has suffered no damage whatever in the premises s and that the Defendants, in the whole matter, acted in good faith and in accordance with the practice, by-laws, rules and regulations of the said Church.
The Plaintiff's answer and replication were general. Upon these issues the parties went to proof, and judgment was given in favour of Respondents.
16th, 17th and 18th Jan. 1877.
D. Macmaster, Esq., Counsel for Appellant :—
The Appellant complains of a tort, and asks for damages on three grounds.
1st. Because of the refusal of the Respondents to lease or assign him "a pew" in St Andrew's Church.
2nd. Because of their refusal to lease or assign him pew 68 for the year 1873.
3rd. Because having complied with all the formalities necessary to insure the continuance of his pew holding and the lease of pew 68, and being, according to his contention, the legal lessee and beholder of that pew for the year 1873, he was molested and disturbed in his use and occupation of it by the Respondents who pleading it "for strangers," placed strangers in it without his consent and against his will to an extent to deprive himself and his family of the use and occupation of it; removed his cushions and books from it and sent them to the warehouse of his firm with a carter, and otherwise questioned his title and brought him into ridicule.
He alleges that he has "by reason of all the said premises suffered loss and damages to the extent of $10000."
The issue raised by the Plaintiff is much broader than that to which the Defendants have attempted to restrict him, and to that to which the Honorable Judges adhering to the judgment of the Courts below, have restricted him,
The Respondents by their resolution "declined to let a pew to Mr. James Johnston for the next year " (1873).
Appellant relies upon :—
1st. His right as a pewholder in St. Andrew's Church from 1867 to 1872 inclusive under the tenth by-law of the church, as interpreted by the usage and customs prevailing in St. Andrew's Church.
2nd. His rights as a lessee of pew 68 for the year 1872 by a verbal lease under the law of the Province ([2])
3rd. His rights as a commoner and corporate derived from his being a member of the congregation owning the church property administered by the Respondents, and
4th. His rights and privileges as an elder and member of St. Andrew's Church under the constitution of the Church of Scotland.
His allegations called for adjudication upon all these points and upon all and each of them he relied for the maintenance of his claim for damages.
The Plaintiff's allegations also raise the issue that he was entitled to a continuance of his lease for the year 1873 by tacite reconduction, under Article 1609 of the Civil Code of Lower Canada this contention he now waives relying on the four propositions stated.
The germ of the issue is, whether the Appellant was entitled to hold and occupy a pew in St. Andrew's Church for the year 1873, or had the trustees the right to refuse him a pew for that year.
1 The Plaintiff was entitled to a pew for the year 1873 under the tenth by-law of the church, and the customs and usages prevailing in it. "Any person who shall lease a pew from the trustees for one year and pay the rent in advance shall he considered a pewholder. The lease of a pew and sittings are to be paid annually in advance from the 1st January and are considered to be then due, &c," (By-law 10.)
[CHIEF JUSTICE RICHARDS :—"Did they refuse him a pew or pew 68?"]
MR. MACMASTER :—"Both, my Lord; he alleges that they refused to lease him that pew or any other pew, and the Respondents contend and plead that they did ' decide and determine not to let a pew to the Plaintiff.' "
The quality of pewholder was acquired by the payment of one year's rent in advance. The by-law plainly has reference to a permanent occupation, and it is proved that it was so construed by the congregation.
The evidence clearly established that when a person had once paid his rent in advance he. retained his pew from year to year as a matter of right without reference to the trustees and that, as a matter of practice, the pews did not revert to the trustees at the end of each year. No express leasing of pews to Plaintiff is proved. The parties are presumed to have contracted with reference to the prevailing custom. 2 Parsons on contracts ([3])
In doubtful cases usage may be referred to in the construction of a Statute as affording a contemporaneous exposition. Dunbar v. Countess of Roxborough ([4]). Noble v. Durell, ([5]) usages become consensual laws. Brown's Law of Usage and Customs (1875) ([6]). In this case the well-established custom of continuous pew occupation emanated into contract. 2. The Plaintiff was entitled, under the law of the Province, to the lease of pew 68 for the year 1873.
His lease was verbal. No written lease is proved by the Respondents.
He paid his rental on the 9th of January, 1872, for pew 68, and received a. receipt signed by the church officer. The Court of Original Jurisdiction held this receipt to be a written lease, and that the tenure expired at the end of the year 1872.
"The lease, if written, terminates, of course and without notice, at the expiration of the term agreed upon," ([7])
A simple receipt acknowledging the payment of a sum of money for a specific thing for a specific time, signed by only one of the parties, is not a contract, much less a written contract, though it may be evidence of a contract written or verbal. The receipt of the money for the time specified is not inconsistent with the existence of either a written or a verbal lease for a much longer period. In this case the lease was undoubtedly verbal, but the term agreed upon not being proved, is presumptively one reconcilable with the provisions of Article 10 of the by-laws, which seems to contemplate continuous pew tenancy, so long as the pew holder pays his rent in advance. Interpreted by usage, the term is uncertain as to its duration, dependent on the payment of pew rent annually in advance; but " when the term of a lease is uncertain or the lease is verbal, or presumed, as provided in Article 1608 (three separate conditions) neither of the parties can terminate it without giving notice of it to the other, with a delay of three months if the rent be payable at the terms of three or more months &c." ([8]). The Plaintiff, under the law of the Province was then by reason of the term of his lease being uncertain and by reason further of the lease itself being verbal entitled to a notice of three months to terminate. This notice he did not receive and the lease remained undetermined and continued during the year 1873.
There are no provisions in our law which exempt pews or church seats from the ordinary rules of lease relating to houses and other immovable property. "The rules contained in this chapter relating to houses extend also to warehouses, shops and manufactories and to all immovable property other than farms and rural estates, in-so-far as they can be made to apply. "([9]) Pew 68 is proved to be fastened to the floor with nails for a permanency. It is immovable by destination ([10]).
3. The Appellant was entitled to a pew and could not be deprived of a seat in the church under the Act of Incorporation ([11]) and the by-laws made thereunder.
He was a member of the congregation and had rights as a commoner and corporator in the church property administered by the Respondents. The church property was held and administered by the Respondents, and by their predecessors "for the use and behoof of the congregation." The congregation purchased and owned the church lot and building.
A pew-holder was a member of the congregation (by law 12) and a joint owner of the church property. He was a constituent of the Respondents, who, for the sake of convenience, were entrusted with the supervision and general management of the temporal affairs of the church. They had no absolute or arbitrary Tights They were the mere servants of the congregation in temporal matters. They perfunctorily leased the pews as they became vacant from any cause and collected the rent also. They had no extraordinary or exceptional powers. Their authority is expressly restricted by the Statute incorporating them.
They may make establish and put into execution, alter or repeal such by-laws, rules, ordinances and regulations as shall not be contrary to the constitution and laws of this Province or to the provisions of this Act, or to the constitution of the Church of Scotland as in that part of the United Kingdom of Great Britain and Ireland called Scotland now (1849) by laws established, and as may appear to the said Corporation necessary or expedient for the interests thereof." They had no authority to exclude the Plaintiff from the church in which he had a legal interest and right of property. By analogy of reasoning, as explained by the learned Chief Justice in the Court of Queen's Bench, they might have excluded the whole congregation and have closed the church.
4. The Appellant was entitled to a pew by reason of his rights and privileges as an elder and member of the church under its act of incorporation. The congregation of St. Andrew's Church expressly subjected themselves to and prohibited themselves departing from the constitution of the Church of Scotland, as in that part of the United Kingdom of Great Britain and Ireland called Scotland now (1849) by law established." They, furthermore by their first by-law, enact: "This church and congregation now in connection with the established Church of Scotland, and adhering to the standards thereof declare that they shall continuó to adhere to the said standards and maintain the form of worship and government of said Church," In virtue of these enactments and of By-law 18 it is plain that the members of the congregation intended to subject themselves to the constitution, standards and forms of Church government of the Church of Scotland as then established in Scotland. They are presumed to have obtained legislation intelligently and with reference to the existing Statutes in Britain The Church of Scotland is one of the established Churches of the United Kingdom. ([12]) The Church is recognized by the Statutes of Canada ([13]) as well as the act of Incorporation of St. Andrew's Church. At the time of the passing of the latter Statute (1849)there existed, and there still exists in Great Britain a Statute 7 and 8 Vic, Chap. 44, Sec. 8 and 9, which provided for the establishment of "quoad sacra " churches in Scotland, in which the Elders are entitled to a pew in the church. The Plaintiff alleges his quality of Elder and the Rev. Gavin Lang for the Defendants declares that quoad sacra churches are governed in very much the same way as Churches here. The Imperial Statute last cited is entitled to recognition here. The Civil Code of Lower Canada ([14]) provides for reference to the Statutes of the United Kingdom. The Plaintiff, as an Elder and spiritual officer of St. Andrew's Church was a member of the Kirk Session, a body entirely independent of the Respondents, having cognizance of the spiritual affairs of the Church. If he were guilty of any offence against the spiritual laws he might be tried by the Kirk Session and not by the Respondents. The Kirk Session alone has power to exercise discipline for ecclesiastical offences
Heale's practice ([15]); Cook's styles of procedure in the Church Courts ([16]); Duncan's Ecclesiastical laws of Scotland ([17])
The offence complained of against Defendant was that "he did not work harmoniously with the minister and his brother elders"—not a very serious accusation under the Republican system recognized by the Presbyterian Church. This resolution was passed on the 4th of November 1872 The Trustees made the resolution the motive of their determination to refuse the Plaintiff a pew.
It is clear that the Plaintiffs failure to work harmoniously with his minister and his brother elders, was no ground for depriving him of his civil rights, and that the trustees acted ultra vires. It is also plain that he had been guilty of no offence entailing forfeiture of privileges for which he was amenable to spiritual censure—otherwise he would have been subjected to the discipline of the Kirk Session.
The previous attempts at disposing or suspending the Appellant had terminated disadvantageously to the Session, in the Synod—the highest Court of the Church, where the Appellant maintained his position and obtained a reversal of the judgment of suspension pronounced against him. The authorities seemed, however, determined to exclude him arbitrarily from the church, and the failure of the Kirk Session to secure this end in their previous venture seems to have acted as a stimulant to the Respondents without any sufficient ground whatever to deprive him of his civil rights. It is to be regretted that this attempt was accompanied with a series of petty. though distressing annoyances, extremely irritating to a sensitive man, evincing on the part of Respondents a dearth of charity dishonoring to the Christian profession. These facts are referred to as bearing upon the question of damages.
Under the constitution of the Church of Scotland the Plaintiff, in virtue of his Eldership, was entitled to the privilege of a pew ([18]); such was the rule in this country also. Depriving an Elder of a pew was never heard of, either in this country or in Scotland, according to the testimony of the reverend gentlemen examined on both sides. Rev. Robert Campbell says it is contrary to the spirit of the Church of Scotland. The action of the Trustees is without ecclesiastical precedent. In England, every member of a Church is entitled to a pew ([19]).
The law of France is similar ([20]).
In Lower Canada the concessionaire (allottee) is entitled to a continuance of his lease so long as he pays his rent; and his wife, after his death is entitled to continue the pew on the same terms :See Langevin, Manuel des Paroisses ([21]); Beaudry Code des Cures ([22].)
Toute personne majeure Catholique Romaine domiciliée dans la paroisse a droit d'avoir un banc dans l'église: Langevin, Manuel des Paroisses ([23]).
Plaintiff submits that for each of the four considerations mentioned he was entitled to a judgment in his favor, and in view of the aggravating character of the torts of Respondents, and their wanton invasion of his rights, to exemplary damages.
[The Appellant submitted the following authorities in support of his claim for damages against the Respondents :
Mayne on Damages ([24]); 10th Jur., N. S, part 2nd ([25]); Yarborough v. Bank of England ([26]); Stevens v. Midland ([27]); Lawson v. Bank of London ([28]); Green v. London General Omnibus Company ([29]) Civil Code of Lower Canada ([30]); Brown v City of Montreal ([31]) Long v. Bishop of Capetown ([32]); Brown v. Le Curé et les Marguilliers de la Paroisse de Montréal ([33]); Forbes v. Eden ([34]).]
Mr. W. H Kerr, Q.C., Counsel for Appellant, followed: If one of the objects of the congregation, in getting their Act of Incorporation, was to give to the trustees power to administer for their benefit the temporal affairs of the church it cannot be denied that at the same time they declared that they would continue i o adhere to the standards of the Church of Scotland and maintain the form of worship and government of said Church.
It therefore becomes necessary to look into what was the form of worship and usages of said Church. Now assimilating St. Andrew's Church with a parish church, and its constituent congregation of pewholders as parishioners, etc., under the parochial system, authorities from the common law and. from the civil law of the province are not wanting to sustain the rightful claim of the Appellant to continued pew occupation during his congregational connection and membership of the Church as a pewholder and it was held in Forbes v Eden ([35]) per Lord Colonsay that a " Court of Law will interfere with the rules of even a voluntary association to protect the civil rights or interests of individuals which may be infringed." Citing from parallel parish laws: "Every man who settles as a householder (here, who joins the constituted Church and Congregation) has a right to call upon the parish for a convenient seat." Groves & Wright v. Rector of Hornsey ([36].)
In Quebec the same rule is followed. The parallelism between the parish rights and the congregational member rights of St- Andrew's Church are near and plain. The intention of the members of the congregation, it is evident, was to import into St. Andrew's Church all the rules of the Scotch Church which could be imported.
Now in Scotland one of the greatest rights of a parishioner is the right of attending public worship and the right to a seat in the church.
Here by using the word congregation instead of the word parish it may be argued that St. Andrew's Church is the parish church for its own congregation.
Moreover, in this case Appellant's right to holding a pew as a member of the congregation was recognized, and, according to the usage and custom of the church, he could not be deprived of this right except by the sentence of a Spiritual Court. It will be contended that the receipt for the rent limited the term of the lease to one year The receipt in an act done subsequently to the agreement between Respondents and Appellant, and all that can be said of it is that it is indicative of a verbal lease. In which case under Civil Code, Article 1657, Appellant was entitled to a notice of three months.
The Respondents have no arbitrary power to refuse a lease of a pew to a member of the congregation. If there is any doubt as to the character of the lease, we are entitled to refer to usage and custom. But where a Statute is express as to some points and silent as to others usage may well supply the defects, if not inconsistent with the express directions of the Statute: See Nobis v. Durell ([37]) United States v. Macdaniel ([38]), and other authorities collected in Parsons on Contracts Vol. 2. And hence these proved usages become consensual laws in the way to become chapters of law in the unwritten rules of the country, binding upon the parties to them. "These u usages are proved by evidence like a fact, and when "proved it is held in law it has an obligatory character "in relation to certain executed transactions. Its existence will raise the presumption that the parties to a c contract acted in conformity with its terms." ([39])
The proved custom and usage are manifestly undeniable and form not only part of the original contract between the parties, but may be read with the 10th By-law as supplementary, not contradicting it, and may be given as follows: " Any person who shall lease a pew from the "Trustees for one year, and pay the rent in advance, shall " be considered a pewholder: The rents of pews and "sittings are to be paid annually in advance, from the '' first day of January, and are considered to be then due; " the current year is included when in these by-laws it i is stated as a qualification that the individuals must "have paid rent for three years and are members of three "years standing," a and the pewholder shall be entitled " to continue in the occupation of his pew from year to year, " by paying his yearly rent in advance as heretofore d directed " The supplemented by-law is not only the rule of the contract between the parties, but the constituent of the pewholder's title to the possession of his pew which cannot be diverted from him by the arbitrary or discretionary exercise of trust power, and which is defensible by the act alone of the "pewholder by his voluntary surrender or by his criminal misconduct subjecting him to deprivation of his pew tenancy by the proceedings at law: Because his possession is in the nature of a life tenancy so long as he continues his connection with the church, in the same way as the right of the parishioner to his pew concession continues during his connection with his parish. "Of course when the right to a pew has been created by a lease for a defined period it will terminate at the expiration of that period, but when the pew has been sold to a purchaser, his. right, unless surrendered, will continue as long as the church stands and is used for church purposes. On the death of the owner, it devolves upon either his heirs, or legatees, or devisees, or upon his personal representatives. Relations of Civil Law to Church Polity Strong, 1874-75, page 130.
[The learned Counsel then referred to the following articles of the Civil Code which he thought applicable to the present case, viz.: Art. 1657, 1608 and 1642, and concluded by submitting that Appellant was not only entitled to a sitting but to a pew, and that he could not be deprived of it except by excommunication or by a new division being deemed necessary.]
Mr. C. P. Davidson, Q. C., and Mr. Cross, Q. C, Counsels for Respondents:—
The only two contracts relied on by Plaintiff, as stated in his declaration, are: 1st. A legal verbal lease. 2nd. A continuance of that lease by tacite reconduction or by verbal lease for want of notice. His conclusions are for damages for having been molested in his occupation and enjoyment of pew No. 68. The controversy is therefore solely as to his rights to occupy that particular pew. If Appellant wishes now to widen the issue and say he was entitled to a pew generally, failure on his part to prove his contracts ought not to turn against us if it should be shown that usage and custom were not in favor of Respondents.
The first point, therefore, Respondents contend is that the declaration must contain all the causes of action and no adjudication can be beyond its conclusions, and on this point will refer to Art. 17, 18, 20 and 50, of the Civil Code of Procedure.
Now as to the nature of this holding of Mr. Johnston. Was it a lease? If so. was it a written lease?
A verbal lease, if the holding of pews in a church fall within the provisions of the Civil Code, relating to the lease of houses or real estate would have entitled Appellant to three months' previous notice of its termination, while a tacit renewal would have taken place by his remaining in possession more than eight days after the expiration of the lease, without any opposition or notice on the part of the Respondents. The written receipt is “for the year 1872," and it obviated the necessity of giving the three months' notice. Evidence of verbal lease does not exist and by By-law No. 10 no member or adherent could become a pewholder in St. Andrew's Church without prepayment of rent; so we find Appellant on the 9th January, 1872, renewing the lease of pew No. 68, paying its rental, and receiving a written contract for its enjoyment during the next ensuing year. Now under Civil Code, Art: 1658, leases if written terminate of course and without notice. But it is impossible to apply to the lease of a pew the law applicable to ordinary leases.
The Court below has unanimously held that it was such a contract as could not be brought within the articles of the Code
In the case of Richard v. the Curé et Marguilliers de l'Œuvre et Fabrique de Québec, ([40]) C. J. Sir L. H. Lafontaine, in his judgment at p. 16, remarks :—"The concessions of pews are made for a fixed term. It is in the interest of the. Fabrique and of the parties concerned, including the Appellant, that it should be so, because this tends to assure equally for a fixed term the receipt of the revenue derived therefrom. The Fabrique is by these means, put in a condition to fulfil the engagements of their administration. The Fabrique would be deprived of this advantage, if the clause in question was other than comminatoire, and if it was necessary in each case, to give notice, so as to put the lessee of each pew in default."
In this case the occupant had failed to pay his rent in advance and the Church Beadle ejected him from his pew. 5 American Rep., (Albany); Kincaid's Appeal ([41]) . The rights of pew owners in church discussed arguendo; 2 Pardovan (Hill's Institute) ([42]); Auger v. Gingras. Stuart's Rep., "A quasi possession qui ne consiste" que dans des droits;"([43]) 1 Bell's Dictionary ([44]); Strong Relations of Civil Laws to Church Polity ([45].)
As to securing any new rights by holding possession for eight days after the 1st January, 1873. It is difficult how such a claim can be urged in the face of the facts of record and of Appellant's case, as stated by himself. He had notice of the resolution passed by the trustees on the 1st of December He was present and voted at a meeting of the congregation held on the 25th of the same month, when a motion was carried endorsing the action of the trustees. He himself complains that Respondents refused the tenders of rent made with his protests of the 20th and 27th December, 1872, and 2nd January, 1873.
The evidence of more than one witness gives a positive denial to the pretension of acquiescence. Moreover obedience to the articles of the Code previously referred to, ceases to be a necessity if the lease of pews cannot be assimilated to that of houses or other real estate, and an action for disturbance in the enjoyment of a pew cannot be maintained without title.
Auger v. Gingras, Stuart's Rep. ([46]); 1 Ferrière, Dic. des Termes de Prat. &c. ([47]); Jousse, Traité du Gouvernement Spirituel et Temporel des Paroisses ([48]); Beaudry, Code de Cures ([49]) 1 Marechal ([50]) Stocks v. Booth ([51]) Possession for above sixty years of a pew in a church is not a sufficient title to maintain an action upon the case for disturbance in the enjoyment of it. Wood fall, Landlord and Tenant ([52]); Prideaux on Churchwardens ([53]) Smith, The Parish ([54]); Pettiman v. Bridger ([55]); 2 Phill. Ecc. Law ([56]); Rogers ([57]).
It cannot be said that the act of Respondents was ultra vires. The control of pews is a temporal matter. It is proved that the practice was that all pews come once a year within the control of the Respondents so that objectionable persons might be refused renewals of their holdings. The choice of pewholders so belongs to the temporalities of the church that it cannot be interfered with by the Session. The by-laws give power to the trustees to let pews and by the 9th Article it is provided that all buyers of forfeited pews must be approved of by the trustees. By the 3rd Article all monies are to be received and paid "by order of the trustees only." The minister and members of the church of very long standing, declare that the Respondents did not act ultra vires On this point of the case were cited 2 Pardovan, (Hills Institutes) ([58]); Durand de Maillane vo. "banc " ([59]); Burton v. Heuson, et al., ([60]); Cooper v. First Presbyterian Church of Sandy Hilt. ([61]). This case like all others found in the American Reports, is founded on title. Hoffman's Ecc. Laws of the State of N.Y. ([62]).
But Appellant claims his right as a spiritual right. If so he should have addressed himself to an Ecclesiastical Court. The decision of the Trustees in exercising their power over a temporality of the church, must be considered as final. The Appellant, it is contended, had rights as a member of the congregation. This is doubtful for he was not a corporator, so far as Trustees were concerned, as the election was by the vote of the proprietors. The Appellant has not been in continuons possession of a pew for three years, and he could not be on a committee to appoint a minister. Now, were not the Trustees justified in not renewing the lease, or, in other words, what is necessary to justify their act?
[On this point Counsel referred to Grant on Corporations ([63]); and Angell and Ames on Corporation ([64]); and also to the evidence of Dr. Campbell, one of the Trustees and connected with the Church for forty years, Rev. Gavin Lang, Dennistoun, Macdonald, Hunter, Mitchell, John Ogilvy and Morgan.]
Of the nineteen witnesses examined on behalf of Appellant, only one, the Rev Mr. Campbell, has ventured to assert even the qualified belief that it is not in accordance with the "spirit" of the Church of Scotland to refuse a member a pew.' But his opinion is admittedly "founded on the parochial system," and he qualifies it by saying that the Trustees would not be justified in refusing him a pew so long as he behaves himself civilly." But we urge also that Appellant acquiesced in jurisdiction of Respondents, although he has taken objection to the decision arrived at. The letter Of the 10th December 1872; the resolutions of the congregational meeting of 25th December, 1872, on which he voted; the letter of 29th May, 1873; pieces 4 and 5 of record being demands upon Respondents to exercise their powers in Appellant's favour, constitute an acquiescence, such as bars Mr. Johnston from contending that session or trustees had no right to refuse him a pew. [See Brice Ultra Vires ([65]) Hoffman's Ecc. Laws of the State of N. Y. ([66]); Dumner v. Corporation of Chippenham, ([67])] Alldecisions opposed are based on the parochial system. The system followed in the Province of Quebec, where parishioners are compelled to pay tithes, cannot be assimilated to that of St. Andrews Church, the contrast could hardly be more striking than between these Churches :
Respondents conclude by praying for confirmation of the judgment of the Courts below :—1st. Because the Appellant has alleged want of sufficient notice to quit, and tacit renewal, as the sole grounds in support of an alleged verbal lease whereas the Articles of the Code relating to lease do not apply to pews.
2nd. Because Appellant's holding of pew No. 68 terminated on the 1st December, 1812.
3rd. Because the Respondents, in the exercise of a rightful discretion, on the 7th of December, 1812, determined to refuse Appellant the occupation of pew No. 68 during 1873, and because that determination was ratified and confirmed by the congregation, on the 25th December following.
4th. Because Appellant has not set out any title to said pew; has not questioned the power of the Trustees in the premises; has not asserted any jurisdiction on the part of the Session; has not alleged himself to be a member of the congregation, or that he has been deprived of or disturbed in any spiritual right, or that he was refused a pew generally. 5th. Because the renting of pews collection of revenues and determination of holdings, are inseparable powers, and all of a purely temporal kind.
6th. Because there is no evidence of record legally connecting the Respondents with the four series of acts complained of, and because Appellant has not proven damages.
7th. Because the Superior Court first, and afterwards the Court of Queen's Bench, have found the facts and the law in this case to be in favour of Respondents.
8th. Because Appellant's action has been rightfully dismissed, with costs.
Mr. Kerr, Q.C., in reply, explained the difference between a servitude in the Province of Quebec and an easement. The laws of lease and hire as contained in the Code, were applicable to all kinds of tenure "all corporeal things might be leased or hired " ([68]); even incorporeal things might be leased or hired ([69]). The allegations of the Plaintiffs declaration were sufficiently wide to enable the Courts to adjudicate on all the points raised by him ([70]): upon the whole he contended that the Appellant was entitled to a judgment in his favour.
June 28 1877.
THE CHIEF JUSTICE:-
The Statute under which the Defendants were created a Corporation, 12 Vic, Cap. 154, recites that the ground on which St. Andrew's Church was erected for the public worship and exercise of the religion of the Church of Scotland, in Montreal, was purchased by Alexander Rae and William Hunter, as Trustees, for the congregation worshipping in the said church and held under a deed dated 3rd May 1805 for the benefit and behoof of the said church and the congregation thereof, and for no other purposes. The Statute further recited the purchase of certain lots forming part of the Beaver Hall property, in the City of Montreal, by certain trustees of the said church for the use and behoof of the said congregation of the said church, and on which there was then being built a church suitable for the increased numbers of the said congregation. The inconvenience of the trustees not having a corporate capacity was also referred to, and the Legislature proceeded to constitute the then existing trustees (who are named) a body corporate and politic, by the name of " The Minister and Trustees of St Andrew's Church Montreal l
They were authorized to makes establish and put in execution, alter or repeal such by-laws rules &c. as shall not be contrary to the Constitution and Laws of the Province or to the provisions of the Act or to the Constitution of the Church of Scotland as established in Scotland, as may appear to the Corporation necessary or expedient for the interests thereof. Three of the members of the Corporation to form a quorum, for all matters to be done and disposed of by the Corporation. Section 2.—The Corporation were to hold stand and be possessed of the lots of ground with the buildings thereon, forever, for the several limitations, trusts, provisions and uses declared and expressed in respect of the same by the deeds of sale referred to and the declaration by Alexander Rae and William Hunter (made before notaries) and by the terms under which the trustees were elected. Section 3. The Corporation were authorized to sell all, or any portion of, the property held in trust by them, but only on a requisition signed by three-fourths of the proprietors of pews in the church, of at least one year's standing and not in arrear of rent, and at the time residing in' the parish of Mon treal; and no sale or alienation shall be valid unless sanctioned by three-fourths of the proprietors, qualified as aforesaid. Section 5 provides for filling up vacancies in the Corporation. When the vacancy is occasioned by the death, removal, or change of residence of the minister, the succeeding minister shall fill the vacancy. When the vacancy is in the number of the lay members, the same shall be supplied by the votes of such persons as shall be elected to fill the same, by a majority of the votes of the proprietors of pews in the said church, of one year's standing, not in arrears of pew rent, at a meeting to be convened as thereafter provided. Section 6 Whenever a vacancy occurs in the office of minister of the church, a meeting is to be called of the proprietors, pewholders and members of the church not 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 be proprietors of at least one year's standing and in full communion with the church and the remaining three may 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 a minister to the said church. Under Section 7—to fill the vacancies as to the lay trustees—a meeting is to be called of the proprietors, not in arrear of rent, on a day to be named for the purpose of supplying such vacancy or vacancies by a person or persons who are proprietors in communion with the said church. Section 8 provides for the calling of public meetings of proprietors or pewholders, on a requisition signed by 20 proprietors or pewholders.
Under the amending Act, passed 27th May, 1857, Cap. 191, it was provided that the trustees, save the minister, should 2 0 out of office the 25th December then next; and by Section 2 an annual general meeting of the proprietors of pews is to be held on the 25th December in every year and by Section 3 six trustees shall be elected at the first annual meeting after the passing of the Act. Section 4. Two trustees to retire annually.
The by-laws of the church were put in evidence. They appear to have been passed on the 11th March, 1851. Under Article 2 the trustees were to call a general meeting 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 year's standing, and not in arrear of rent, and pewholders who have paid rent for the two years preceding, one of which auditors must be a proprietor, and the other may be a pewholder, both qualified as above. Article 3.At the general meeting of the congregation the members present, qualified as above, shall elect a treasurer. Article 4.—In appointing a committee to select a 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 member 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 two or more persons so qualified should occupy a 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 pewholder was to have more than one vote. Section 6 of the Act is referred to. Article 9.—Every person having purchased a pew, and having paid for the same, and who shall produce a deed, duly executed by the trustees, is a proprietor, and entitled 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 fixed on his pew, agreeably to his deed, for the space of two years, shall be considered as having forfeited his pew in the church, and after notice, the trustees may sell the same to the highest bidder, and the proceeds of the same shall be applied to pay the rent due, and the sur plus shall be paid to the last proprietor. Article 10.— Any person who shall lease a pew from the trustees for one year, and pay the rent in advance, shall be considered a pewholder. The rents of pews and sittings are to be paid annually in advance, from the 1st day of January, and are to be considered then due. The cur-rent year is included, where in the by-laws it is stated as a qualification, that the individuals must have paid rent for three years, and are members of three years' standing, &c. Article 11.The trustees are empowered to sell all pews in possession of the church, at such times and upset prices as they may decide on, but not for a less sum than two years of the fixed annual rent amounts to, and subject to an annual rent over and beside the purchase money, and all deeds granted shall contain a clause that the annual rents may be augmented or increased by the trustees, according as they may deem the wants of the congregation require; they having obtained the sanction of two-thirds of proprietors of pews of at least one full year in possession, not in arrear of rent, at the time residing within the Parish of Montreal. Article 12. The congregation in these by laws implies the proprietors of pews pewholders, 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, pewholders 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 trustees, previous to the election of a trustee, or the election of committees for selecting a minister shall make out lists or rolls of the proprietors and members qualified to be trustees or to vote on the election of trustees or members of committees for the selection of a minister, or to vote in the election of such committees.
In the view I take of this case it will not be necessary to consider, or express any opinion on, the unfortunate differences that have occurred between the Plaintiff and the congregation of St. Andrew's Church. The right of a parishioner to a seat in a parish 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 a pew in a 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 a 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 interests 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 Plaintiff, though, occupied a pew in the church for several years, and occupied one in 1869, described as “area pew No. 68 in St. Andrew's Church, Beaver Hall." The rent for the year was $75. He took the pew in dispute, and began to occupy it in January, 1872, and obtained a receipt for the rent dated the 9th January 1872. Plaintiff produced and gave it in evidence it reads: " Received from James Johnston the sum of "sixty-six 50/100 dollars, being for rent of first-class pew No. "68, in St. Andrew's Church, Beaver Hall, for the year 1 1872. For the Trustees, J. Clements." Under the Bylaws the rents are to be paid annually in advance, that taken in connection with the receipt shows that this letting was at all events for one year certain. Mr. Justice Sanborn, in his judgment, says: " If this is a lease it is "not one which falls within the application of Article 1 1657, C. C. It is not such a verbal lease as is contemplated by that article. It is the uncertainty of the " term of the lease which necessitates the three months "l notice to terminate it. This was fully discussed and d determined in the case of Webster v Lamontagne, "decided in this Court in 18 74. In this case there was "no tacit renewal. The pew No. 68 had only been " leased in 1872, and the rent was paid in advance, and " a receipt taken specifying the rent for one year. This " was in conformity with the By-laws, and Appellant, " as a party interested, must have been presumed to h have known it without such receipt. Before the expiration of the year Respondents notified Appellant that " they would not lease him a pew for the next year. " This was quite sufficient if it were treated as an ordinary lease to prevent a contract of tacite reconduction." I don't understand that any of the learned judges before whom the case came, thought the Article 1657 of the code applied, nor do they think, as I understand their judgments, that there was a tacite reconduction.
The Plaintiff's right must then be based on the simple ground that he had a right to have a lease for the year 1873 of the pew No. 68, he being willing to pay the rent in advance for it. If we were to decide he was entitled to three months' notice to terminate the lease because it was a verbal one, I apprehend this would not be satisfactory to the Appellant, or to those who contend that the holders of pews have the right to a renewal of their leases from year to year on payment of the rent suggested. If this be the correct view, all the trustees would 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 presumed or 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 a renewal of their leases, 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 or from usage. As I have already intimated, I do not think there can be any analogy drawn from the right to occupy seats in the parish churches in Scotland, the right to a seat being based on a different principle there,—there are no pew rents, as such, and the minister being supported from other sources, whilst in St. Andrew's Church the rents of pews are appropriated to the payment of the minister's stipend.
The rights of proprietors seem to be defined by the Statute, and by By-laws adopted by the Corporation under the Statute. They alone can vote for trustees. In selecting a committee of nine for the purpose of choosing a 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 a deed duly executed by the trustees is a proprietor, and entitled to the privileges of a proprietor as specified by the Joy-law Proprietors not in arrear of rent may transfer their pews by sale, gift or will, but no transfer to be valid except on the express condition of the new proprietors being approved by the trustees.
A 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, having 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 surplus to be paid to the last proprietor. I think we may fairly assume that it was not intended that pewholders should have greater privileges than proprietors. There is nothing in the by-laws or Act of Incorporation giving them the right to continue to hold a pew beyond the year for which it is leased, nothing said about their being entitled to a renewal of the lease of a pew, though reference is made to pewholders who have paid rent for three years. Suppose a pewholder 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 reasonable time after the end of the year to pay the rent for the next year, which is payable in advance, and in the mean time is he a " pewholder"? And is the pew to be considered in his possession? Or is the pew in the possession of the trustees? When is it to be considered in the possession of the trustees, that they may sell it if they think proper? No provision is made as to these matters by the by-laws.
If the pewholder has the right of his own mere will to continue Lo occupy the pew for an indefinite period, the trustees would be very much embarrassed in carrying on the affairs of the Corporation. It might be for the interest of the Corporation to sell the pews that had been leased, and yet if the pewholder claimed to have his lease renewed from time to time this would create difficulty. It might be necessary to raise the rents in order to pay the stipend of the minister, yet no provision is made for that purpose, as far as the pewholders are concerned; but when the pews are sold the deeds are to contain a clause that the annual rents may be augmented or decreased by the trustees, according as they may deem the wants of the congregation require, first obtaining the sanction of two-thirds of the proprietors of pews, of at least a year in possession, and not in arrear of rent, residing within the parish of Montreal. There are other alterations as to the occupation of seats, that the change of time and circumstances might render it desirable to make such as making the seats free, in relation to which this perpetual right of renewal (if I may use the term) of the pewholder would very much embarrass the management of the church. Suppose the pewholder paying the pew rent regularly, and not joining any other congregation, very seldom, if ever attended church must the trustees continue to let him have the pew, when there were other persons desirous of obtaining it, who would occupy it constantly?
If it be considered that the pews are let for a year and the trustees re-let for each year then none of these difficulties will arise. Whenever circumstances require a change in the mode of letting or occupying the pews, or the increase or diminution of the rent, such changes may be made at any time after the end of the year for which the leases are current. It is not to be presumed that this power will be exercised capriciously, 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 selling pews they can exercise their discretion as to whom they will sell them, and I see no reason why they should not exercise that discretion as to whom they may lease pews. By giving to the pewholders 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 may be considered advantageous for the benefit of the congregation. Any reasonable or necessary changes may be made at the end of the year, when each pewholder has had what he has bargained and paid for—the use of the pew for the year. In this view no difficulty could arise; no discussions, whether what was about to be done was reasonable, or done at a reasonable time, in a reasonable manner; and no law-suits or unpleasant litigation, bringing the matters of the congregation before the Courts. These domestic affairs would be settled in their own forum, and in a more seemly manner than by legal proceedings, which produce discontent, anger and ill-feeling.
If the right to a lease for another year had been claimed by a pewholder the next year after the By-laws had been passed, and the trustees had refused to grant it, I am satisfied it would have been held, that there was no doubt that the pewholder, having leased the pew for one year, and paid his rent for that period, and having obtained the receipt, could not claim as a right to have the same pew granted to him for another year at the same rent, without the consent of the trustees. If that would have been the effect then why should the Appellant, who must be held as to this particular pew, to have taken it for the year 1872 (he not holding it for 1871), be considered entitled to claim the lease of it as a right for 1873? I can see no satisfactory reason why it should be so held. It is argued, however, because pewholders for the last twenty-five years or more in St. Andrew's Church have had their leases renewed, therefore it must be conceded as a right.
No doubt usage is a strong point to take in these matters, but when the usage may be accounted for quite consistently with the claim of right set up, and when it lists not been exercised in a manner to show it has been claimed and admitted as of right, you may show facts and circumstances which would prove that the right claimed was not intended to be granted as claimed.
I have endeavored to show that the right claimed by the pewholders could not have been intended to be granted to them, by showing how carefully the rights of the trustees have been guarded in relation to " proprietors;' and if the rights now claimed 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 a chaotic state as it appears to me they would be in, if the views contended for by the Appellant are allowed to prevail. The fact that the congregation worshipping at St. Andrew's Church for more than 25 years past, have acted harmoniously, and been so united that the trustees have not had occasion to refuse to renew the lease of a pew to any 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 harmony. It is possible this may go on now for another quarter of a century or more without having any difficulty,
It is only when the exigency arises making it necessary to exercise the right to refuse to let a pewholder have for another year, a pew which he has occupied perhaps for several years, that the right of 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, through 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 year, and was willing to pay the rent, was a reason why they should let him have it. It was not necessary or desirable, merely to show their right to refuse to let for another year, that they should capriciously annoy pewholders by refusing to renew the letting to them. I do not think it is contended that the trustees could compel a pewholder to continue to hold the pew after the end of the year, though they might wish to do so, and though they may have refused to let it to another applicant, 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 important rights, options and privileges to the pew holder without corresponding obligations, and cast burdens and restraints on the trustees which they never undertook to submit to, and which it is not for the interests of the congregation they should bear. Giving to the pewholder the right to occupy the pew for the year for which he bargained and paid for, he has what in my judgment it was intended he should have, and you have the trustees free to manage the business of the congregation entrusted to their care, in the manner which may be best calculated to further the objects for which the Respondents were incorporated. This view would settle the rights of the parties on intelligible legal grounds.
In the evidence of one of the clergymen called for Appellant, it was stated that they had not legislated on the subject of the rights of parties to pews, and therefore they must be governed by the principles of the Church of Scotland. The Church of Scotland lays down the rule that every man in the parish has rights in the parish church, and unless he makes himself offensive to the church his rights cannot be interfered with. It is founded on the parochial system. If a person were to apply for admittance into a Presbyterian church, and were notoriously objectionable, yet if he profess adherence to the principles of the Church of Scotland the trustees would be bound to give him a pew if they had one at their disposal.
The Rev. Mr. Lang, the minister in charge, said:— " There is a time at the end of each year when all the pews in the church virtually revert to the trustees; that does not include the pews owned by proprietors. One of the trustees said '.—" The trustees have always contended that the pews are rented from year to year; and that the lease of each pew ends with the year, and can only be renewed with the consent of the trustees either tacit or expressed."' He has known cases in which parties have grumbled on being deprived of their pews in that way. The notice of the annual meeting intimates that the trustees or their representatives will be on hand to lease the pews of the church. It was customary to continue tenant in his pew as long as he pays rent regularly. The trustees consider they have a sort of discretion in regard to the letting of pews, " our right has never been questioned before, that I know of, to refuse a pewholder a pew."
Another minister, speaking of the church in which he is the minister, says :—" The managers (in his church) have duties very similar to the trustees in St. Andrew's Church. The managers have the sole power over the pews, and can let them to whomsoever they please. As I understand it, the managers have the power to eject a member from his pew. I have no doubt of it." Many members of the congregation stated the custom to be that you paid the rent and you were supposed to keep possession of your pew; the receipt given was for the rent for the year.
Some said they understood that any person paying his pew rent, got his pew on paying from year to year. The pews are continued by the payment of the rent in advance. There seems to be no doubt that the trustees have exercised the discretion so far as to refuse to continue single letting in pews, when a pew was wanted for a family. The pew occupied by Appellant in 1871 was owned by Mr. Mackenzie, who sold it and Appellant wanted 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. I understand these young men had paid for the sittings just as the pewholders paid for their pews, but when the occasion in their discretion called for the exercise of the right to refuse to renew the letting of the seat, the trustees exercised it When the necessity as in this case for the exercise of their right to refuse to renew the letting of a pew arose, they, in their discretion, exercised it and refused to renew the letting of this pew to Appellant, and, as already intimated, I think they had the right to do so.
I have not been able to see all the cases and authorities cited on the argument to show that the right to refuse a member of a religious society a seat in a church belonging to the body, is one which rests with the congregation alone, and that the exercise of their discretion will not be reviewed by legal tribunals. Many of the decided cases go to the full extent contended for. As I do not consider it necessary to go into that question in deciding this case, I express no decided opinion upon it. I consider that the Plaintiff here claims that he had a right to the pew in question; and, in the view I take of the law he had not such right under the Act incorporating Defendants and their by-laws, and therefore his action fails and this appeal should be dismissed.
RITCHIE, J. :—
I have given this case a great deal of consideration; and have felt, throughout the argument and during my investigation, that it is surrounded with a great many difficulties, and my mind has doubted and fluctuated from time to time; but, after most careful consideration, I 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 1805. The 12 Vict. cap. 154, incorporating the minister and trustees of St. Andrew's Church Montreal, passed 30th May, 1849 recites that: " Whereas the ground in St. Peter's S Street, Montreal, upon which the church for the " public worship and exercise of the religion of the " Church of Scotland in the City of Montreal, commonly c called " St. Andrew's Church," is erected, was pure "chased by the late Alexander Rae and William Hunter, " as trustees for the congregation worshipping in the "said church under a deed executed in their favor on " the third day of May, 1805, before Guy and Barron, N Notaries Public, and held by them (the said Alexander " Rae and William Hunter), according to their declaration of date 14th July 1805 made before the said " Notaries for the benefit and behoof of the said church and " the congregation and for no other purpose whatsoever, "and is particularly described in the aforesaid deed of s sale and declaration."
It appears to have been found afterwards that the church was too small for the accommodation of the congregation, and that incorporation was desirable, and the Act after reciting the election from time to time of trustees, and specifying the names of the then trustees, further recited that as such trustees by deed, passed before J. J. Gibb and colleague Notaries Public, bearing date at Montreal the 4th December, 1847, they acquired by purchase from Edwin Atwater, " those certain lots " of land (particularly describing them)" for the use and behoof of the said con "grégation of the said church, and on which there is"now being built a church suitable for the increased " numbers of the said congregation," and after reciting that the trustees were not a body corporate, and that the trustees had represented the inconveniences resulting from the want of a corporate capacity, and that it had become necessary to sell the church in St. Peter's Street, and provide a larger building for the accommodation; the minister, trustees and their successors were constituted a 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 the constitution of the Church of Scotland as in that part of the United Kingdom of Great Britain and Ireland called Scotland, now by law established, and as might appear to the said corporation necessary or expedient for the interests thereof;" and it was also enacted " that the several lots of ground, together with the building's 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 limitations, trusts, provisions and uses declared and expressed in respect of the same in and by the above referred to deeds of sale and declaration by the said Alexander Rae and William Hunter, as also by the terms under which the 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 a certain amount, for alienating the buildings on St. Peters 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 a vacancy in the office of minister of the church, and whenever a vacancy happens it is the duty of the Kirk Session to require " a meeting of the proprietors, pew holders and members of the said church not in arrears of rent, for the purpose of taking the steps necessary for supplying such vacancy, by electing a Committee of nine by plurality of votes, of which six shall be proprietors of at least one years standing, and the remaining three may be pewholders who have paid rent for three years preceding their election, and are in full communion with the said church," and shall have full power to take such steps as to them may seem best adapted for speedily obtaining a minister, &c., &c. Under the Act of Incorporation certain by-laws were adopted. Article 1 provides that
" This church and congregation, now in connection with the Established Church of Scotland and adhering to the standards thereof declare that they shall continue to adhere to the said standards, and maintain the form of worship and government of said Church."
Article Il—"The trustees shall call a general meeting of the congregation, annually, to be held on the twenty-fifth day of December—or should that day fall on a Sabbath, then on the following day,—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 congregation. Two auditors shall be appointed by those present,—say of proprietors of at least one year's standing and not in arrear of rent, and pew holder s who have paid rent for the two years preceding,—one of which auditors must be a proprietor, and the other may be a pewholder, both qualified as above, to whom the accounts shall 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 congregation 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 III.—" At the general meeting of the congregation, the members present, qualified as above, shall elect a 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 a pew from the trustees for one year, and pay the rent in advance, shall be considered a pewholder; the rents of pews and sittings are to be paid annually in advance from the first day of January and are considered to be then due; the current year is included when in these by-laws it is stated as a qualification that the individuals must have paid rent for three years, and are members of three years' standing," &c.
Article XII.—" The term congregation in these by laws implies the proprietors of pews, pewholders, members in full communion with the church, and regular 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 a pew, they shall all give their names to the trustees that they may be entered on the roll of the congregation."
Article XXI.—" Every person, whether proprietor, pewholder, sitter, or member of this church, shall, before they can be competent to elect or be elected to any office, or to have any share in the management of this church, subscribe the by-laws."
It is clear, from these provisions, that this church was for 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, that either in this Act or in the by-laws, which were passed in 1851, provisions affecting questions which have arisen in this case had not been put on a footing more clearly enunciated
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 in it as might seem right in their own eyes, but they held the church for the use and behoof of the congregation at large, and they had no arbitrary discretion in the matter nor right to treat the church as if 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, according to the form 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, quoted 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 says they had " 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 a more intelligible footing. He says, in effect, the rights in this church and the congregation are as near as may be analogous to those of the Church of Scotland in Scotland, and the rights of a congregation there; and he says, that there the congregation are never deprived of their seats; that there such a thing as depriving an elder of the church of his seat "was never heard of so long as he was a member of the congregation; and taking the whole evidence together, I can arrive at no other conclusion than that for a period of seventy years, the constant and uniform usage and practice of this church 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 a matter of course and that the standing of a member of the church is a matter to he determined by the church courts and not by the trustees. Chief Justice Dorion, in his judgment (which I understand is, on this point, quite concurred 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 " prevails in Quebec, with reference to Roman Catholic " churches, the right of the lessee of a pew to retain it " as long as he resides in the parish on payment of the a annual rent originally agreed upon, unless there be a " written agreement to the contrary, is undoubted."
The contention, therefore, is not novel, that in this church the pews are let to the congregation, the rent being payable in advance; that when the rent is paid in advance the lessee continues to have the right of occupying the pew until some good cause can be shewn why he should be deprived of it, and thereby of the benefit secured to the members of the congregation by the first 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 proved in this case to have existed, and which Chief Justice Dorion, as we have seen, says was in accordance with the parochial organization of the largest church in the Province of Quebec. Nor does this system appear to have produced any inconvenience or to have in way interfered with the accommodation or orderly and convenient seating of all for whose benefit the church was organized and incorporated. On the contrary, the reasons are very obvious to my mind why the trustees should not have an arbitrary right to deprive members 01 the congregation of church privileges, by depriving them of pews, and so enabling them practically to hold the church not for the use and 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 appears to have worked without the occurrence of any one of all those numerous difficulties suggested by the learned Chief Justice as possible to arise.
I may mention also, I find in these by-laws the idea of continuity of occupancy of pewholders clearly recognized, and certain rights and privileges given, as for instance: Whoever paid rent for two preceding years is enabled to elect certain officers in the church. It is to be observed also that instead of saying that the trustees shall make fresh agreements each year for renting 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 year the clause would then be meaningless. If they were leased only for a year, and paid for in advance, there would be an end of the matter; but it says " the rents of pews and sit tings are to be paid annually in advance." What does that mean? It means, I think, that having got the right of pre-emption or tenant right —if I may use the term —they go on exercising it, paying from year to year in advance, and if they do not pay in advance they forfeit the right to the occupancy of the pew. How could it be considered due if it all rests on one indivisible agreement to be made each and every year? There would be nothing due, in that case, until the agreement was made—nothing due if the re