Assiniboia [Manitoba], Legislative Assembly of Assiniboia Debates [on Confederation] (29 April 1870)
By: Assiniboia (Legislative Assembly)
Citation: Manitoba, Reconstituted Debates of the Legislative Assembly of Assiniboia, 1870, 2010 at 73-77.
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Legislative Assembly of Assiniboia
Assembly Chamber, Upper Fort Garry
Friday, 29 April 1870
The President took the chair at two o’clock P.M.
The minutes of the previous sitting having been read and confirmed, the House resumed the consideration of the Law Committee Report.
Hon. Mr. Bunn, seconded by Hon. Mr. Norquay, moved the adoption of Article III under the head “Administration of Justice.” — Carried
Hon. Mr. Bunn, seconded by Hon. Mr. Olone, moved the adoption of Article IV, with the substitution of the words “not more than” for the word “under” in subsection 1. The alteration was made so as to enable the District Courts to dispose of cases of debt of ten pounds and under. — Carried.
Hon. Mr. Bannatyne, seconded by Hon. Mr. Poitras, moved that Article V be adopted.
Hon. Mr. McKay moved in amendment that a sub-section be added to the article, providing that in any case in which the sum involved was over five pounds, an appeal to the General Court might be made.
Hon. Mr. Bannatyne believed in giving every man having a case before the District Court, the right to appeal.
Hon. Mr. Bunn also argued on the same side. He did not believe in limiting the right to appeal to cases over five pounds, under the amendment proposed, simply because [if] the debt is below five pounds, you give him no appeal. If you give the right of appeal at all, give it to all parties coming before the Court.
Hon. Mr. McKay, in Indian and English advocated his amendment. It was in the interest of the poor man that an appeal should not be in every case. Suppose the sum involved to be but twenty shillings, and the rich man loses and appeals it. The latter may out of mere spite, take the poor man to the General Court, and perhaps in the long run the latter may lose the case and be saddled with great additional expense.
The President — There is this to be borne in mind in relation to the hon.
gentleman’s argument, that the losing party may be either rich or poor.
Hon. Wm. Tait — I support the original motion as it appears to me to be the fairest. The appellant knows if his cause is a bad one, the consequences of appeal will fall on himself. As to Article XXII, which has been referred to, it offers no chance in favor of a man having a case: for both parties must agree before they can go before a magistrate; and one of them may not consent.
Hon. Mr. Fraser — I would suggest the amount of the judgment be struck out, and that it be not necessary to deposit it. Suppose a man desires to make an appeal, he has not only to pay the usual deposit, but also the judgment, which latter amount might be too large for him to be able to deposit. In a country like this, where many poor men may come into Court, I do not see why they should be practically shut out from appealing by being compelled to deposit the amount of the judgment.
Hon. Mr. Bunn — The hon. gentleman would have us strike out the amount of the judgment, the very thing for which the parties came into Court. It is all very good to take care of the poor man. But in Courts, poor and rich are treated alike. If you got a judgment against a man, surely you are not going to allow the man to walk off from Court simply because he says, I appeal, and pays his twenty shillings. What hold have you over such a man for the amount of the judgment?
Hon. Mr. Tait — If I get judgment against a man, I cannot see where the fairness lies in allowing that man to keep me out of my money three or six months by appealing, and perhaps a few days before Court sits, coming and paying the judgment.
Hon. Mr. Bannatyne — I believe it would be very hard to settle any case before the District Courts if what Hon. Mr. Fraser contends for were to prevail. If two men came before the District Court and judgment is given against one, the man against whom the case is decided, if he wishes to take advantage of the other, has only to say, I appeal, and pay a small deposit, and keep the other person out of his money for nearly three months. Fifteen days before the General Court, he may then come forward and pay the debt.
The amendment, not being seconded, dropped and the Article carried.
Hon. Mr. Hay, seconded by Hon. Mr. Olone, moved the adoption of Article VI.
Hon. Mr. Bunn said — This article was very much debated in committee, the great point at issue being as to whether a case should be tried in the district where the plaintiff or defendant resided.
Hon. Mr. Poitras, seconded by Hon. Mr. Parenteau, moved in amendment that the Article be not adopted until amended so as to provide that cases should be tried in the district where the defendant resides.
Hon. Mr. Bunn said that he was inclined to think that in justice to all parties the case ought to be tried in the defendant’s district,— otherwise a man who was untried would be in reality subjected to punishment by being compelled to go, perhaps, a long way from home, at the summons of the plaintiff.
Hon. Mr. Hay was almost positive that in England the case had to be tried in plaintiff’s district.
Hon. Mr. McKay urged that in this country it was usual to bring the case on in the district where defendant resided — that is, in the case of the District Courts.
Hon. Mr. Norquay argued that the plaintiff ought to have the right to bring the debtor to his district.
Hon. Mr. Tait contended that as District Courts were expressly formed for the benefit of those residing in the District, the plaintiff ought not to be enabled to bring a charge against a man and have him taken to any other district for trial. If the District Courts were not formed for the benefit of residents, why not have one Court in the centre, as in the case of the General Court?
Hon. Mr. Schmidt was in favor of having the case tried in defendant’s district, as plaintiff was the aggressive party.
Hon. Mr. O’Donoghue supported the amendment. He believed that in other countries, in nearly all cases, the trial came off in defendant’s district. If a merchant gives goods on credit, he does so at his own risk, for his own profit, and if he seeks to recover any debts which have been contracted, he should not be allowed to force the debtor, in many cases, a poor man, to come many miles from home in order to stand his trial.
After a lengthy debate the amendment was put and carried on a division: Yeas 17; nays 5.
On motion of Hon. Mr. Schmidt, seconded by Hon. Mr. Poitras, Article VII carried.
Hon. Mr. Bannatyne, seconded by Hon. Mr. De Lorme, moved the adoption of Article VIII,— Carried on a division: Yeas 19, nays 2.
Hon. Mr. Garrioch, seconded by Hon. Mr. Norquay, moved Article IX — Carried.
Hon. Mr. T. Sinclair, seconded by Hon. Mr. J. Sinclair, moved Article X — Carried.
On article XI a debate arose.
Hon. Mr. O’Donoghue moved that Article XI be struck out and the following substituted:—
- 1. That in criminal cases jurors shall be each entitled to a fee of five shillings per day paid out of the public funds; and in civil cases five shillings per day paid out of the public funds: and in civil cases five shillings a day for each case on which they may serve. Should any case occupy more than one day, the jurors sitting thereon shall be entitled to five shillings a day each for each day or part of a day,— payable by plaintiff or defendant as the Court may decide.
- Witnesses in criminal cases shall be entitled to the same amount per day as jurors; and in civil cases a witness shall be entitled to five shillings per day for each case and for each day of attendance in Court until the case is disposed of.
After debate, at seven P.M., Hon. Mr. O’Donoghue, seconded by Hon. Mr. Bunn, moved that the House take a recess for an hour and a half — Carried.
On resuming business at half-past eight P.M., Article XI, on motion of Hon. Mr. Bunn, seconded by Hon. Mr. Touron, was put and carried.
On motion of Hon. Mr. Tait, seconded by Hon. Mr. Bunn, Article XII carried.
Hon. Mr. Bunn moved the adoption of Article XIII with the substitution of the word “one pound” for “half a pound,” before the word “pemmican.”
Hon. Mr. Poitras seconded the motion.
After debate, the article was carried, as amended, on a division: Yeas 16; nays 3.
Hon. Mr. Bannatyne, seconded by Hon. Mr. Gunn, moved the adoption of
Article XIV, carried.
On motion of Hon. J. Sinclair, seconded by Hon. Mr. Bunn, Article XV carried.
Hon. Mr. Bunn moved that Article XVI be amended by striking out the words
“five pounds sterling for such license and.” His object was to make a distinction in favor of the people of this country, by providing that they should be able to go into Court without any entrance fee the first year.
Hon. Mr. Bannatyne seconded the motion which was carried as amended.
The consideration of Article XVII was postponed on motion of Hon. Mr.
O’Donoghue, seconded by Hon. Mr. Schmidt, the President having suggested that it was not explicit enough.
Article XVIII carried, on motion of Hon. Mr. Bannatyne, seconded by Hon. Mr. Gunn.
Article XIX carried, on motion of Hon. T. Sinclair, seconded by Hon. Mr. Poitras.
Hon. Mr. Bannatyne, seconded by Hon. Mr. Sinclair, moved the adoption of Article XX.
Hon. Mr. O’Donoghue suggested that in this article the word “or” after the word “newspaper,” be changed to “and,” and that the words “at the doors of all the churches” be struck out, and the following inserted instead “in some conspicuous place near the several churches.”
Hon. Mr. Bannatyne adopted Mr. O’Donoghue’s suggestion and the Article carried as so amended.
At ten o’clock P.M., on motion of Hon. Mr. Hay, seconded by Hon. Mr. Garrioch, the House adjourned.