Johnston vs. The Minister and Trustees of St. Andrew's Church, Montreal. The rents of the pews were paid annually, but no wrîtten leases were granted and no letting was annually made, but those in possession continued from year to year to pay the rent, sometimes but not generally in advance. The Respondents contend that under these circumstances the leases terminate every year, that no notice to quit is necessary, and that they, as trustees, could be justified, the day after the expiration of the year, in turning out, without any previous legal notice to quit, without any other legal justification or necessary explanations, the books and furniture of any of the pewholders. If they have that abstract right, we cannot, in an action like the present one, withhold from them the defence which that right enabled them to set up. The arbitrary and improper exercise of a right so peculiar as that claimed, would lead to the most unpleasant consequences, and the existence of it would enable the Trustees, without legal restraint, to unseat and drive from their pews any number of the pewholders they pleased to injure, without a moment's notice. All that would be necessary for them would be on the first day of January, in any year, to say to A, B, C or D: "We have decided that although you are an elder and communicant of the church, and one of the parties for whom we are trustees, you shall no longer hold a seat in the church." Can any one say that such should be the relative position occupied by Respondents and those for whose use they hold the title in trust? The Respondents do not avowedly claim that position, but give a reason for the commission of the acts complained of, and make an insufficient attempt at a justification. Their justification for the acts complained of, on the ground of alleged improper conduct of Appellant, must Johnston vs. The Minister and Trustees of St. Andrew's Church, wholly fail, for neither the law nor the Constitution of the church, empowers them to refuse the continued occupation of a pew to which the party holding it was otherwise entitled, because they might have objections to his moral character or conduct. By their plea they attempt a justification on the ground that, to the best of their judgment, before the 31st of December, 1872, it had become undesirable and inexpedient to let the said pew No. 68 to the Appellant for the year commencing the first 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 Respondents did, to wit: on the 7th day of December, 1872, decide and determine not to let a pew (that is, any pew,) to the Appellant. For the sake of the Respondents, it is, perhaps, to be regretted that it having become "undesirable and inexpedient, to the best of their judgment," to give any sitting in his own name in the church, does not constitute them the judges in such a case; nor does it allow them, "in the exercise of their discretion," to take the stand they did; and although they acted in good faith, and without malice, &c., there is no justification under this plea; and it is to be further regretted that the course they adopted (conscientiously, no doubt), resulted, as in many other cases where arbitrary power is exercised or attempted to be used, in lessening instead of increasing the peace and harmony of the congregation. The By-laws and Constitution of their church directly vested the power, not in the trustees (who are frequently not persons capable of deciding questions of moral conduct, &c., or versed in church discipline), but in the Session, and, by appeal, in the Synod. Johnston vs. The Minister and Trustees of St. Andrew's Church, Montreal. The Appellant had recently been deposed as an elder by the Session, but the Synod reversed the action of that body; and at the time of the refusal to him of a seat in the church, he was, by the rules of that church, and by a decision of its highest court, an elder in full standing, and one in regard to whom the Trustees had no right to exercise their judgment or discretion so far as to refuse him a seat for the reasons pleaded; and if, in their judgment, in a matter in which they had no legal control, they thought it "undesirable and inexpedient" not to leave the Appellant in the enjoyment of his rights, but invaded them, they must abide the consequences; and if, by attempting to usurp power that properly belonged to other bodies in the church, and by disregarding the action of the Synod, whose decision should have been respected, they have produced litigation and otherwise increased discord and want of harmony in the congregation, it is but what might have been expected. The attempt by the Respondents and the Session to disrate the Appellant having failed, we can only conclude that the attempt to do so should not have been made; and if the Appellant, after the judgment of the Synod, acted improperly, a fresh case, before the proper authorities, should have been brought; but to permit the trustees, who merely hold the title for the benefit of the congregation, and who have limited powers only, as their dealing with it, to decide upon the conduct of one of its members, and an elder, too, and thereupon deprive him of a pew or seat in his church, would be to strike at the root of all proper church government, and create an imperium in imperio calculated to create all sorts of strifes and conflicts. Having thus disposed of this justification, I will now Johnston vs. The Minister and Trustees of St. Andrew's Church, Montreal. consider the case as presented by the other pleadings Much has been said at the several arguments of this case, a good deal of irrelevant testimony introduced, and many points discussed, in the judgments rendered in this case previous to the appeal to this Court; but many of those points and arguments, and a great portion of the evidence, I consider unnecessary to refer to in my view of the law that must govern the decision. The Appellant claims that he was rightfully in the possession of the pew in question when the trespasses and wrongs were committed. 1st. Because having been in possession in 1872, he was entitled to three months' notice to quit, and without which he could hold over or the year 1873, during which year the trespasses complained of were committed. 2nd. That having continued in possession eight days after the 1st of January, 1873, under Article 1609 Civil Code, Lower Canada, he could hold possession on paying the annual rent in due time for that year by tacite reconduction. The Respondents deny the correctness of these positions, and contend, as to the first, that no notice to quit was necessary, and, secondly, that they having given the notice of the 7th December, 1872, and subsequently refused to receive the rent, there was no tacite reconduction. I am of opinion that there was no renewal of the lease by tacite reconduction, and that the notice referred to, and the refusal to receive the rent, destroy the Appellant's contention on that point. See Articles 1609 and 1610 Civil Code (L. C.) I will, therefore, proceed to consider the Appellant's first position, and in doing so must, in the first place, solve the question as to the nature of his holding. Was it by a lease? I feel bound Johnston vs. The Minister and Trustees of St. Andrew's Church, Montreal. to decide that it was, and by a verbal one, for the receipt for the rent for 1872 does not constitute a lease. It is merely an acknowledgment of the receipt of the rent for the year, signed on behalf of the Treasurer, and would not be incompatible with a holding by lease, written or unwritten, for life, or from year to year, or otherwise. Besides the Treasurer had no authority to lease or let pews or make any contract therefor. The letting was a verbal one by the Respondents, as Trustees, to the Appellant, but it has been adjudged that if it were a lease, it was not of the ordinary kind. Mr. Justice Sanborn properly says:----" In St. Andrew's "Church in Montreal some persons have a proprietary "interest in pews--others, as Appellant, hold only by lease, having no ownership in a pew ;" and adds:----"As "the rights which ownership of pews gives to the owner are peculiar, and not subject to many of the ordinary incidents of property, so what is termed "lease is not an ordinary kind of lease." And further: "It is a means of contributing to the support of the Gospel." I cannot conceive that in the relation of the parties here now, the object for which the pews are let, or the purpose for which the rent is applied, can in any way affect the character of the holding, or that the application of the rents can in any way affect the rights of the tenant who pays them; nor can it legally affect those rights, whether they are merely trustees or owners; nor are the trustees the less lessors in the ordinary sense, as between them and their tenants, because the funds derived from pew rents are only received in trust for the benefit of the congregation, and as "means of contributing to the support of the Gospel." |