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

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

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

belonging to the body, is one which rests with the con gregation 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 "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 "called "St. Andrew's Church," is erected, was pur"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

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

"the third day of May, 1805, before Guy and Barron, "Notaries Public, and held by them (the said Alexander "Rae and William Hunter), according to their declara"tion 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 "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

gregation 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

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

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 buildings thereon erected by the trustees aforesaid, shall be holden by the said Corporation to stand and be possessed thereof for ever, to and for the several 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, pewholders 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 year's 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.

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

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 II." 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 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, 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 congreSation, the members present, qualified as above, shall