Johnston vs. The Minister and Trustees of St. Andrew's Church, Montreal. elastic to meet these cases, I am perfectly sure the right has never been refused to any church (in our province at all events) to make such rules and regulations for the management of their affairs as a body, as they may think right and proper, and may to the Legislature seem reasonable. Regretting I am called upon to adjudicate upon this case; regretting the observations which, in the solemn discharge of my duty, I am called upon to make, I trust that all parties will re-consider this matter, and that it will lead to an amicable arrangement among them. I believe the Plaintiff had the right, when he had the pew for one year, to keep it so long as he continued paying pew rent in advance, unless, indeed, some good cause, which it is not necessary for me to specify, should be shown for depriving him of it. I will not say there may not be many matters referred to which might not be sufficient for suspending him. I do not say that might not be done, but it is sufficient for me to say nothing appears in this case that warrants the trust tees, in my opinion, in depriving him of the right to have that pew when he was willing to pay for it annually in advance. Under these circumstances, I think the judgment of the Court below should be reversed, and the Defendants in this case should be condemned to pay $300 damages, with full costs in all the Courts. STRONG, J. This action is, as I read the declaration, brought to recover damages for disturbing the Plaintiff in his enjoyment of pew No. 68, in St. Andrew's Church, in the city of Montreal. It is confined to the wrong Johnston vs. The Minister and Trustees of St. Andrew's Church, Montreal. alleged to have been done to the Plaintiff in respect of this particular pew, and does not make the case that Plaintiff was illegally excluded from the church altogether; and, if it had made such a case, the evidence clearly would not have supported that pretension. It becomes material then to ascertain, in the first place, what was the Plaintiff's title to the pew 68 at the time of the disturbance of Plaintiff's possession, in the month of January, 1873. The opinion I have formed, after consulting all the authorities cited in the factums and at the Bar, and several others, is that the contract entered into between the Plaintiff and the Defendants, the trustees, under which the Plaintiff occupied this pew No. 68, during the year 1872, was a verbal lease--a character which the Plaintiff himself attributes to it in his declaration. The Plaintiff then proves a title precisely as he alleges it in his declaration, as a lessee for the year ending on the 31st December, 1872, under a verbal contract with the Defendant, at a rental of $66.50. By the law of the Province of Quebec, a lease for a short term, less than nine years--entirely unlike such a contract in English law----gives no right of property to the lessee, but constitutes merely a personal contract between the parties. There is, therefore, much less difficulty than in the case of a similar contract governed by the laws of England, in holding that the right of use of a pew, which involves no interest in the property in the church, or in the pew itself, may be made the subject of a lease. The absolute sale of a right to use a pew has been held in England to confer no right of property in the soil, but merely a right in the nature of an easement or servitude, though, of Johnston vs. The Minister and Trustees of St. Andrew's Church, Montreal. course, not an easement or servitude proper.----(Hinde v. Charlton) (1). Article 1608 of the Civil Code of Lower Canada contains a provision not in terms expressed in the Code Napoleon, though it appears to be universally considered as the law of France also: "Incorporeal things may be leased or hired except such as are inseparably "attached to the person. If attached to a corporeal 66 thing as a right of servitude they can only be leased "with such thing." There seems, then, no reason why a contract conferring a right to use a pew in the manner in which such property is generally used, namely, by occupancy during divine service, should not be as much a lease as the right to work a mine or quarry, or the right conferred by contract on a particular person, not amounting to a servitude in favor of another property, to use a right of way or passage. In all these cases I find several of the commentators on the Code] Napoleon, treating the contract as a lease. Marcadé, on Article 1713 of the Code Civil, at p. 431 (6th edition) says: "On ne loue pas une église, un "cimitière, une place publique, une grande route, un "fleuve, mais on loue très bien des places dans une 66 église, des emplacements d'étalages de marchands sur "la voie publique, le droit de recolter les fruits et "l'herbe d'un cimitière, le droit de pêche dans un "fleuve." Other authorities are to be found to the same effect. I can see, therefore, no objection to attributing to the contract which the Plaintiff entered into, for the occupancy of the pew for the year 1872, the denomination and character of a lease as the Plaintiff himself has done (1) L.R., 2 C.P., p. 104. James Johnston vs. The Minister and Trustees of St. Andrew's Church, Montreal. Then if it is a lease, one of the learned counsel for the Appellant, Mr. Kerr, whilst he concedes that the notice of 7th December made tacite reconduction impossible, invokes Article 1657 of the Civil Code (L. C.), which he says must apply to all verbal leases, whether made for fixed and certain term or not. According to the strict letter of Article 1657, three months' notice would be in all cases necessary to put an end to a verbal lease, even though it should be proved or admitted (as in the present case) to have been for a term certain. The Article 1657 is almost identical with Article 1736 of the French Code, which only differs in requiring notice to be given, according to the custom of the place, instead of fixing an invariable delay of three months; and the Commissioners of the Code in their Report (4th Report, p. 29), say of the Article that "it is based partly "upon Article 1736, C. N., but goes beyond it in speci 66 fying the delay of the notice required to be given." Then the commentators seem to be all of accord that the Article 1736 was inaccurately drawn, and that notice was only necessary in the case of a verbal lease for an uncertain term, and consequently where the duration of the lease is ascertained, though the contract may be verbal, the Article does not apply. Marcadé after discussing this Article, comes to the conclusion: "Il faut donc dire que le congé sera ou non sera neces"saire, selon que la convention (écrite ou verbale, peu “importe) laisse, ou non, indefinie la durée du bail.” (1) See also Duvergier (2); Duranton, (3); Troplong (4); Zachariæ (5); Demante, (6); and Laurent (7). (1) Vol. 6, Page 481; (2) T. 18, No. 485; (3) T. 17, No. 116; (4) Du louage, No. 404; (5) Par Massé & Vergé T. 4, No. 383, Note 11; (6) T. 7, Pages 268, 269; (7) T. 25. Page 349. James Johnston vs. The Minister and Trustees of St. Andrew's Church, Montreal. This, I gather from the judgment of Mr. Justice Sanborn, was also discussed and decided in the case of Webster v. Lamontagne (1), though the report of that case in the Lower Canada Jurist does not show that very clearly. The lease was, of course, subject to the requirements, as to proof, of Article 1233, and as the rental was upwards of $50 it could not have been established by the testimony of witnesses; all difficulty on this head is, however, removed by the clear admission of the Plaintiff. The consequence is that the lease came to an end, without any notice, on the 81st December, 1872, at which date, in my opinion, the Plaintiff ceased to have any legal right to occupy the pew No. 68. The Plaintiff seems to have considered himself, that his right terminated at the end of the year, for, as Mr. Justice Monk points out, his tender of the rent for 1873 implied a recognition by him of the necessity for a new lease on which to found his title to the continued occupancy of the pew. Nothing is to be found in the Act of Incorporation, or in the by-laws made pursuant to it, giving colour to the contention that a contract for the lease of a pew for a year shall be construed not to mean what the parties agreed to, but shall be intended to be a lease for an indeterminate period, possibly for the life of the lessee. Then, with reference to the usage applicable to the holders of pews in the Roman Catholic Churches in Lower Canada, upon which the judgment of the learned Chief Justice of the Court of Queen's Bench proceeds, I would venture, with great deference to an authority of so much weight, to suggest that in the cases to which (1) 19 L. C. Jur. Page 10f R |