There he says, 'When there is no specific remedy the Court will grant a mandamus that justice may be done.' The construction of that sentence is this, Where there is no specific remedy and by reason of the want of that specific remedy justice cannot be done unless a mandamus is to go, then a mandamus will go."

Here, for the breach of the alleged public duty, a specific remedy exists, that namely by indictment, which is the appropriate remedy for the nuisance caused by allowing a public bridge or highway to be in disrepair: Russell on Crimes, book 2, ch. 28, sec. 4; Regina v. Corporation of Paris, 12 C. P. 445, 450; Regina v. Oxfordshire, 1 B. & Ad. 289; Regina v. Oxford, &c., Turnpike Roads, 12 A. & E. 427, in which last case Lord Denman, C. J., observes: "I know of no instance of a mandamus to repair a road.”

If a mandamus may be granted in such a case as this, I do not see why it may not be granted in any case, where a municipal corporation fails to comply with the duty expressly imposed upon it by section 531, to keep every public road, street, bridge, and highway in repair; a course which we cannot but see would be productive of extreme inconvenience.

In the case of Re Township of Augusta and Counties of Leeds, &c., 12 U. C. R. 522, a mandamus nisi only was granted, and the objection now raised seems not to have been taken. Moreover the section on which the court in that case acted, 12 Vict. ch. 81, sec. 37, and which corresponds in a general way with section 534 of the present Act, was then framed in more stringent terms, expressly requiring the council to do the particular act. That case cannot therefore be regarded as a decision on all fours with the present case.

The cases in which the courts have granted a mandamus to county councils to erect and furnish registry offices: Regina v. Northumberland and Durham, 10 C. P. 526; Ward v. Northumberland and Durham, 12 C. P. 54; Re Whelihan v. Perth, coram Gwynne, J., not reported, seem to me quite distinguishable. There was in such

cases no remedy beyond a mere indictment for disobedience of the statute, and therefore no specific remedy, for the registrar was held not to be entitled to provide an office, and charge the county with the rental. The cost of the erection of the office was also limited by the former statute to a particular sum, and by the present Act the office is to be erected upon a plan, and on a site to be approved of by the Lieutenant Governor-in-Council.

An objection was taken to the sufficiency of the demand on which the application for the mandamus was founded. I am of opinion that it is entirely insufficient according to the requirements of our practice, which in Tapping on Mandamus, pp. 282, 283, 284, is thus stated:

*

"It is an imperative rule of the law of mandamus, that, previously to the making of the application to the court for the writ to command the performance of any particular act, an express and distinct demand or request to perform it, must have been made by the prosecutor to the defendant. * Both the demand and refusal must also be shewn on the affidavits made use of in support of the application. * The demand must be express and distinct, and not couched in general terms; it should accurately demand a performance of that which the defendant legally can and should do." Regina v. Bruce, 11 C. P. 575, 580; Re North Fredericksburg, 37 U. C. R. 534.

I have not been able to satisfy myself that any clear distinction exists on this point between a case where a mandamus is sought to enforce the performance of a public duty, and any other case. The difference between that which is here relied upon as a demand, and that which was held to be sufficient in the case of Brooks v. These Defendants, is very marked, as will be seen by examining the printed appeal book in that case.

Therefore, I think, the appeal should be dismissed.

The court being equally divided in opinion, the appeal was dismissed, with costs.

DORLAND V. JONES.

Trustees for religious body—Inquiry as to principles and doctrines—
Organisation of religious body.

"

In 1821 J. Bowerman and J. Bull joined in conveying certain lands to three persons, trustees of the West Lake Meeting of Friends, appointed by the Monthly Meeting to secure the titles of meeting house lots, and burying grounds, "to have and to hold said parcel of land hereby granted unto the aforesaid trustees of said Monthly Meeting for the time being, and for their successors in trust as said meeting shall from time to time see cause to appoint, for the only use and benefit of said meeting," and in 1835 Bowerman executed a further conveyance of a portion of those lands of which he had been the owner to two of the said trustees, "and to their successors, in trust for said meeting so long as the members constituting it shall remain and be from time to time continued in religious unity with the Yearly Meeting of Friends (called Quakers) as now established in London, Old England, and no longer"; habendum "unto the aforesaid trustees of the said Monthly Meeting, and to their successors in trust for the time being as said meeting shall from time to time see cause to appoint, for the only use, behoof, and benefit of the said Monthly Meeting. The defendants contended that the identity of the existing Monthly Meeting with that described in these deeds had been lost by reason of departures from the principles which governed the Society of Friends at the time the trusts were created, as well in matters of discipline and practice as in points of faith and doctrine, and that the plaintiffs were consequently no longer entitled to the use and possession of the lands: Held, [reversing the judgment of PROUDFOOT, J., 7 O. R. 17,] that the criterion as to the Monthly Meeting was not the adherence to the doctrines and practices which prevailed at the time the trusts were created, but its continued existence as a Monthly Meeting of the organisation of the Society of Friends to which it belonged at those times, and possibly to its members continuing in religious unity with the London Yearly Meeting and that the defendants, never having been recognised by or in connection with the Canada Yearly Meeting, had no rights as an organisation which a court of law could recognise or enforce.

THIS was an appeal by the plaintiffs from the judgment of Proudfoot, J., reported 7 O. R. 17, and came on to be heard before this court on the 23rd, 24th, and 25th of September, 1885.*

S. H. Blake, Q.C., and Clute for the appellants.

J. Maclennan, Q.C., and Arnoldi for the respondents.

The facts giving rise to the action, the points raised, and the authorities cited are fully stated in the report of the case in the court below and in the present judgments.

*Present.-HAGARTY, C.J.O., BURTON, PATTERSON, and OSLER, JJ.A.

February 25, 1886. HAGARTY, C. J. O.—This case has been argued with very great learning and ability, and the clear and very full judgment below renders a detailed statement of facts unnecessary.

The deed of 1821, conveys the property to trustees of the West Lake Monthly Meeting of Friends, to hold to them and their successors for the only use and benefit of said meeting. The deed of 1835 (after the Religious Societies Act) reciting the earlier deed, grants to the trustees for said meeting so long as the members constituting it shall remain and be from time to time continued in religious unity with the yearly meeting of Friends (called Quakers) as now established in London, Old England, and no longer. We need not discuss the question whether the second conveyance controls or affects the legal result of the first.

The last deed shews that there was a monthly meeting or congregation belonging to a well known existing religious denomination called the Society of Friends. This society has been in existence for over two centuries. Its constitution has been fully explained, and the respective positions of monthly, quarterly, and yearly meetings ascertained and admitted. For many years this monthly meeting was subordinate to the New York Yearly Meeting. In 1867 the latter meeting set off and established the Canada Yearly Meeting, of which the West Lake is a subordinate branch; and in the same year the Canada Yearly Meeting adopted the discipline of the New York Yearly Meeting.

In 1877 the latter revised its discipline, and in 1880, as is alleged, the Canada Yearly Meeting adopted the revised discipline of 1877.

In February, 1881, the trouble seems to have broken out in the West Lake Monthly Meeting, and the contest between the two parties for the possession of the meeting house, &c., began, which has resulted in this suit.

The plaintiff's insist that they and their predecessors are and have been since 1821 till this contest, in the quiet

possession as the West Lake Meeting, of all this property. The defendants claim that the plaintiffs have departed from the true faith and discipline of the society, and are no longer entitled to possession, and assume to themselves. the character of the true West Lake Meeting, and as such justify their seizure of the real property of the meeting.

In this case the whole burden rests on the respondents to shew beyond reasonable doubt, that the plaintiffs have so far departed from the fundamental principles of the society, or have so far departed from its discipline and form of worship, which is here claimed to be the essence of the position, as in effect to cause them to be no longer members of the society. Such a departure (as in the vigorous language of Chief Justice Shaw) is "so deep and radical as to destroy its identity with the Society of Friends who had been invested by law with the enjoyment of property and civil rights. But, (he adds) if such a case be possible it would seem to be a suicidal destruction of the body itself, leaving its property derelict." Our task here is to examine whether the plaintiffs' title to this property is successfully attacked.

I fully agree in the general principle laid down in the very able and most careful judgment of my learned brother Proudfoot, that property may be conveyed to a religious body or in trust for them, on condition of their adherence to certain specified articles of faith, or certain prescribed discipline or ritual, as well expressed in the language cited of Mr. Justice Strong of the United States. Supreme Court. I have read with much interest the lecture of that learned Judge on "The Relation of Civil Law to Church Polity, Discipline and Property," lent to me by my learned brother.

In 1udor's Charitable Trusts, (2nd ed.) 246, it is put thus: "If the institution was established for the express purpose of such form of religious worship, or the teaching of such particular doctrines as the founder has thought most conformable to the principles of the Christian religion, it is not in the power of individuals having the

69-VOL. XII A.R.