James Johnston vs. The Minister and Trustees of St. Andrew's Church, Montreal.

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'Euvre et Fabrique de Québec, (1) 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.

(1) 5 L. C. Reports, p. 16.

James Johnston vs. The Minister and Trustees of St. Andrew's Church, Montreal.

5 American Rep., (Albany); Kincaid's Appeal (1). The rights of pew owners in church discussed arguendo; 2 Pardovan (Hill's Institute) (2); Auger v. Gingras. Stuart's Rep., "A quasi possession qui ne consiste que dans des droits ;"(3) 1 Bell's Dictionary (4); Strong -Relations of Civil Laws to Church Polity (5.)

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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, 1878.

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. (6); 1 Ferrière, Dic. des Termes de Prat., &c., (7); Jousse, Traité du Gouvernement Spirituel et Temporel des Paroisses (8); Beaudry, Code de Curés (9); 1 Marechal (10); Stocks v. Booth, (11) Possession for above sixty years of a pew in a church is

(1) P. 382. (2) P. 508; (3) P. 135; (4) P. 203; (5) P. 126; (6) P. 135; (7) Vo. Banc l'Eglise, (8) P.55; (9) P. 37; (10) P. 73; (11) 1 Dunford and East, P. 428.

James Johnston vs. the Minister and Trustees of St. Andrew's Church, Montreal.

not a sufficient title to maintain an action upon the case for disturbance in the enjoyment of it. Woodfall, Landlord and Tenant (1); Prideaux on Churchwardens (2); Smith, The Parish (3); Pettiman v. Bridger (4); 2 Phill. Ecc. Law (5); Rogers (6).

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) (7); Durand de Maillane vo. "banc" (8); Burton v. Heuson, et al., (9); Cooper v. First Presbyterian Church of Sandy Hill. (10). This case, like all others found in the American Reports, is founded on title. Hoffman's Ecc. Laws of the State of N.Y. (11).

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

(1) Page 540; (2) Page 260; (3) Page 408; (4) 1 Phill. Ecc. Rep., 324; (5) Page 1811; (6) Page 170; (7) Pages 523, 528; (8) Page 272; (9) 10 M. & W. 104; (10) 32 Barbour's N.Y. Rep., 222; (11) Pages 171, 247 and 251.

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James Johnson vs. The Minister and Trustees of St. Andrew's Church, Montreal.

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 continuous 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 (1); and Angell and Ames on Corporation (2); 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 (1) Page 246; (2) Par. 411.

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James Johnston vs. The Minister and Trustees of St. Andrew's Church, Montreal.

an acquiescence, such as bars Mr. Johnston from contending that session or trustees had no right to refuse him a pew. [See Brice, Ultra Vires (1); Hoffman's Ecc. Laws of the State of N. Y. (2); Dumner v. Corporation of Chippenham, (3)] 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. Andrew's Church, the contrast could hardly be more striking than between these Churches:

Respondents conclude by praying for confirmation of the judgment of the Courts below:-1st. Because the Appellant has alleged want of 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, 1872.

3rd. Because the Respondents, in the exercise of a rightful discretion, on the 7th of December, 1872, determined to refuse Appellant the occupation of pew No. 68 during 1873, and because that determination was ratified and confirmed by the congregation, on the 25th December following.

4th. Because Appellant has not set out any title to said pew; has not questioned the power of the Trustees in the premises; has not asserted any jurisdiction on the part of the Session; has not alleged himself to be a member of the congregation, or that he has been deprived of or disturbed in any spiritual right, or that he was refused a pew generally.

(1) Pages 131, 275; (2) Page 279; (3) 14 Ves. Page 251.

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