New Brunswick, House of Assembly, Debates of the House of Assembly [County Courts] (31 May 1867)
By: New Brunswick (House of Assembly)
Citation: New Brunswick, House of Assembly, Reports of the Debates of The House of Assembly  at 107-110, 122.
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FRIDAY, MAY 31.
Hon. Mr. Fisher moved the House into Committee on the further consideration of a Bill to establish County Courts.
Mr. Botsford in the Chair.
Mr. McQueen.—Whilst I have been listening to the debate the question has occurred to me whether we have really the power to legislate on this matter. The Provincial Secretary and Attorney General distinctly state that we have; the delegate member for Northumberland says we have the legal power, but not the moral power; that it would be a breach of faith with Canada to create these Courts, as it was not contemplated in the Act of Union. When these learned men differ it is hard to know what to think.
There are some things in the Bill that commend themselves to my mind. It is said that the establishment of these Courts will have the effect of giving us cheap law and speedy justice, and if this is the case it would be a great benefit; but it has been said by my colleague Mr. Smith) that the process of law will not be any cheaper under this Bill than it is now, in the Court of Common Pleas, and if the argument he used in support of his position is correct, I do not see any benefit that can be derived from the passing of this Bill. If the Court of Common Pleas was presided over by man of legal attainments, I think the standard of the Court would be raised, and a great many more cases be tried by it than at present. I think, too, that if the jurisdiction of these Courts was increased so as to bring in cases up to $200, it would be found a great benefit, and if to this were added a clause to bind real estate, then we should have what is required.
In our County we have now four Courts every year, two sittings of the Supreme Court and two of Common Pleas; the number of Jurymen employed to try cases in these Courts in all is eighty-four, forty-two of each, and if we now go to work and establish a County Court besides, forty more will be added, thus increasing the number to one hundred and twenty-four; and for these additional Jurymen, taking the mileage and Jury charges into consideration, we should have to pay $2,000 more than we pay now, which would be a great increase of the expense. I do not think the establishment of these Courts, under the circumstances, will commend itself to the mind of the country. It is true, as has been stated, that these Courts have been found to work well in Canada, and that is greatly in its favor, but it seems strange to me that if we have the power to legislate in the matter now, the people of Nova Scotia did not adopt it at the last meeting of the Legislature. The Bill does not commend itself as favorably to my mind as it does to some others and I shall vote against it, although I suppose it will pass.
Mr. Kerr.—This is a question of very considerable importance, and one that has occupied my attention a good deal, and I supposed this Bill would be supplemented by another, which would do away with the Magistrates’ Courts all over the country. Having this impression, when I heard that County Courts were to be established here, the matter commended itself to my mind at once. The idea that because they have them in Canada, and that for the sake of uniformity we should have them here, and that their introduction at this time will give us a chance to share in the expenditures which will be made for this purpose, to my mind bears very little weight. The question is, are they needed? And if so, how can they best be established to accomplish the object desired? We all know that at present the great number of Magistrates’ Courts held all over the country is a great source of litigation, and that a man who has a claim against another of a very trifling amount, can send here and there to bring his witnesses,
causing much delay and expense, over a matter that is not worth talking about. By the introduction of these Courts, especially if the Government had determined to go on with the second Bill, the difficulties and anxieties caused by these petty trials, as well as the delay and expense, would be very much curtailed, and prove a great means of reducing litigation.
It has been objected that County Courts will be attended with a great deal of expense, but if we give £500 to each of the five Judges, and allow them £50 or so extra for travelling expenses, it would only amount to some £2800; and although the hon. member for Westmorland thinks that the Jury fees would be very much increased, I believe he will find that the great expense now incurred by delay would be more than counterbalanced by the speedy manner in which justice could be obtained. The reduction in costs on cases between £20 and £50 would save to the people of this country more than the whole expense of holding the Courts. When it was proposed to have five Judges I thought the Government contemplated introducing the District Courts Bill as well, but since this is not to be the case, I don’t see how five Judges are going to be occupied the whole time, as they will not hold more than four Courts in the year, and it cannot be expected that each Court will sit more than two or three weeks.
I think that now we shall have either to reduce the number or increase their jurisdiction, for there will not be enough business for them to do, and the litigation of the country is lessening every year. In Upper Canada they have eleven Judges of County Courts, with a very large population; in Lower Canada, with a different style of Judicature, they have only twenty Judges altogether; in Nova Scotia they have six, and we have five Judges of Superior Courts. If we now add five other Judges of County Courts, at a large salary, our expenses will exceed in proportion those of Upper Canada; and although I think there is great necessity for a change, yet I do not see how we shall be able to manage, unless we reduce the number or extend their power.
The salaries proposed will be too large for the amount of labor they will be required to perform, and I think we should reduce them to three, so as not to encumber the funds of the country with a larger amount than they will bear. If the whole matter had been covered with regard to the Magistrates Courts, I should have given this Bill my full and hearty support, believing, as I do, that it would prove a great benefit to the country, but as it is I do not think this Bill will affect the greatest evil which exists, and I have great doubts about establishing all these Courts without just knowing what the requirements of the country are. Indeed the General Government may disallow the appointments after we make them, and we should, therefore, be very careful how we proceed.
Mr. Caie.—I am not a lawyer, and as I observe that some of our most eminent lawyers, statesmen and delegates differ upon this matter, I shall not offer any opinion as to whether we have power or not to legislate under the Imperial Act; but I must say that I entirely coincide with the remark of the hon. member for Northumberland, (Mr. Johnson) himself one of the delegates, that if we have a doubt on the matter we should pause before we act. But that hon. member goes on and says that undoubtedly power is left with the House to legislate upon this subject, but that we have not the right to do so.
I confess, Mr. Chairman, that I do not see the difference which the hon. member tries to make. I think that the right gives the power. It is true that the House has the power to say to a petitioner who had a most righteous claim against the Government or House, ” We will not pay you,” and the man has no redress; he must be quiet, for he can’t sue and recover as in any other case. But because the House has that power, is it right they should therefore cheat a man of his just due? Certainly not; the power confers no right, it is the right which gives the power. I think that a change is very much needed in respect to our Magistrates’ Courts, but I think it should be brought about, if possible, without increasing the costs of litigation.
I think that if three persons in each Parish were appointed to hold a Court, once a week, or once a fortnight, or once a month, as might be found most requisite, with power to adjudicate on amounts up to £50, it would do away with many of the cases which now come before the Court of Sessions, and very much lessen the amount of litigation. I think that the measure now before the House will prove very cumbersome, and be a great expense to the country, which might be saved by adopting a plan such as I have mentioned, and I shall, therefore, not give it my support.
Mr. Babbit.—Whatever may be the differences of opinion existing between lawyers and statesmen on this question we have, after all, individually to make up our minds and decide for ourselves. I think we have the right to legislate upon any subject which comes under our consideration. To me this is a mere matter of propriety. The question is whether, now and after we go into Union, the requirements of the country demands the establishment of these Country Courts or not. I am satisfied that a change is needed, but what should it be? And how can it be, effected?
The time now occupied in collecting a claim through the Supreme Court is too long, and justly causes much complaint, and if, by the establishment of these Courts, we can get justice brought nearer home, and obtain it as a cheaper rate, it will be just what is required. I feel satisfied that this effect will be produced, and therefore I shall support the Bill. So much for the principle; the details laid down in the Bill I may not so readily agree with, but they can be argued and arranged as the debates goes on.
I think the measure will meet with the appreciation of the country, if the Government don’t foist too many Judges upon us, and make the machinery too heavy and cumbersome. I differ with a good many hon. members as to the Magistrates, for although some of them may not be possessed of very high legal attainments, yet many of them are men of good abilities, and from their knowledge of facts, with regard to cases which come before them, are able to administer justice speedily and cheaply. Instead of taking away any of the jurisdiction which they now have I would give them more.
Mr. Johnson.—You would have to give them more brains first.
Mr. Babbit.—I think that so far as small debts are concerned it is a most simple method of gaining cheap justice. As to complaints of delay in certain cases, the same will apply to the Supreme Court in a much larger degree, and I think that if the powers of Magistrates were increased it would prove a great benefit to the country. Most of them have now a-days a Jury of three to try the causes which come before them, and the people find that it is a good way, enabling them to obtain justice at their own homes, and at a cheap rate. As to the present Bill I am in favor of the principle, although I think that a satisfactory change may be made in the details as we go along.
The Committee then divided on the question of reading the Bill section by section, when there appeared —
Hon. Mr. Fisher,
Hon. Mr. Williston,
Hon. Mr. Tilley,
Hon. Mr. Connell,
Hon. Mr. McMillan,
Hon. Mr. Wilmot,
Hon. Mr. McAdam,
His Honor the Speaker,
Mr. J. Flewwelling,
Mr. W. P. Flewelling,
The question being carried in the affirmative, the Chairman proceeded to read the Bill section by section.
- There shall be established in each of the Counties in this Province a Court of Law and of Record, to be styled the County Court of [name of the County] and the Sittings of the said Court shall be held at the County Court House.
- The Governor in Council shall appoint one Judge for the Counties of Charlotte, Carleton and Victoria; one Judge for the Counties of York, Sunbury and Queen’s; one Judge for the Counties of Albert, Westmorland and Kent, one Judge for the Counties of Northumberland, Gloucester and Restigouche, and one Judge for the Counties of King’s and Saint John; provided that the said Court for the County of Saint John shall not have or exercise any jurisdiction in any Cause in which the City Court in and for the City of Saint John, or the Police Court in the Parish of Portland, in the County of Saint John, have jurisdiction. The said Judges shall be Barristers of not less than seven years standing, and shall hold office during good behaviour; and a Clerk for each Court shall be appointed, who shall be an Attorney, and shall hold his office during pleasure.
Mr. Johnson.—We are now going to establish County Courts, the principle of the Bill is established, the main question is settled, and now having cast my vote unavailingly against it, I am prepared to do what I can to make its provisions as effective and satisfactory to the people as possible. We are, it seems, going to appoint five Judges, each Judge to hold a Court, having jurisdiction over three Counties, and then to appoint a separate Clerk for each Court; is that the intention? and that man an Attorney, a practising Attorney, who is able to go into the Court, and conduct cases whilst still holding his position! Well, I know that lawyers are generally pretty good men, but I think this House should not hold out inducements such as this. I really cannot think this is intended.
Hon. Mr. Fisher.—I sincerely hope the same spirit which has been expressed by the hon. member for Northumberland will influence all the hon. members present, and I thank him for the remarks he has made. Two propositions are laid down with regard to the Clerk. First, it is intended to appoint one for each Court, for it is believed that he will be needed. All the business could not be attended to by one Clerk for all the Courts, and from the fact that three Courts will be held by each Judge in the year, it will be seen that a distinct Clerk of the Court will be required, and prove advantageous.
Second, it is intended that he shall practice; if the House think that he should not, we can put that in, but it was thought that there would not be sufficient business of the Court to enable him to get along if he was excluded from practising. If it is thought desirable to make a change let a clause be inserted that he shall not practice in the County of which he is Clerk; this will cover the ground. The Clerk of the Court of Common Pleas is now allowed to practice in the same Court, and I see no very great evil that would arise from it in this case. However, wherein the Bill is defective we shall be thankful to hear suggestions of improvement, so that it may be remedied.
Mr. Johnson.—I would ask why the Clerks of the Peace now appointed cannot be appointed to be Clerks of the County Courts; thus saving the expense and not leaving the appointments in the hands of the Government?
Mr. Smith.—It is evident there is an ovewhelming majority for this Bill, but there are certain portions of it which are most objectionable, and upon which I may say a few words. In Canada they have these County Courts, and they are said to have worked well; but it is very different there to the system about to be established here. There they have a Judge for every County, and in some Counties they have two. The Judge resides in the Shire town, he is always there to do his business; but how will it be here? By this section we are to have an ambulatory Judge, going about over three Counties, holding his Courts here and there, and I should like to ask how are we to get at him if he is wanted? How can we get access to him? How can we move for a new trial if he is moving about in this way, here to-day and gone to-morrow?
I just point out this inconvenience, and ask the Attorney General how we can get out a summons, make an application for a new trial, or do any other business that may be required when the Judge is constantly moving about? How can we set aside a judgment by default? Here is a case in which we must be prompt, there is only a certain time to act, and how or where shall we find the Judge? If we had one for each County, as they have in Canada, he would be accessible by the people at all times, and the same thing might be done here. Make the salaries less and appoint more Judges; divide the salary now proposed to be given into three parts and give us more Judges, and it will prove more advantageous. I suppose the Government won’t receive my suggestion, but I am sure it can’t work with only one Judge for three Counties. This is, I think, a matter worthy of consideration, and must commend itself to the minds of hon. members who are engaged in the law.
Hon. Mr. Fisher.—This very question has just been decided by a great vote, it involves the principle of the Bill, and that has been established. How is it now in the Supreme Court? The Judges are scattered round over the circuits, and the same objection would apply equally in their case. Then if the salaries were reduced so as to permit of the appointment of three times the number of Judges they would have to carry on their practice as Barristers.
But I do not believe a Judge should be a practising lawyer; he should be removed from every influence which may hinder him from forming a fair and impartial opinion. My hon. friend says that in Canada the Judges are always to be found at one place; but it is not so, they are always moving about, although of course where they have one Judge to every County they have not so large a circuit to travel over. We cannot appoint more, for our means will not admit, unless we allow the Judges to practice, which I consider very undesirable they should do. The Judges who are appointed will be required to reside in the District over which they preside, and this is all that is required.
Mr. Stevens.—I think the idea of the hon. member for Westmorland a very good one if it could be carried out, but in that case it would be impossible to obtain the consent of any Barrister of good standing to accept the office of Judge, as the salary would not be sufficient to support him in his position, unless he were allowed to practice in the Supreme Court, and if he were allowed to do that, I conceive it would be striking at the very fountain of justice, and mix up with the toils, anxieties and prejudices of private business, that calmness of mind and impartial administration of affairs which should characterize the Judge. For this reason I am entirely opposed to the reduction of the salaries in the manner suggested.
Mr. Chandler.—The ideas propounded by the hon. member for Westmorland can, I think, be easily overturned. He complains that the Judges will be moving about, and thinks that a difficulty will be experienced in certain cases from this fact. But the Judges of the Supreme Court are always doing the same
thing, holding three Courts in the year, as in the present case, and over a far larger circuit than is contemplated by this Bill that the County Court Judges shall do; but I apprehend that in vacation they will always be found easily enough, and this is all that is required for all practical purposes.
Mr. Smith.—The hon. member does not seem quite to understand me. He says the Judges of the Supreme Court are always moving about; but there is always a resident Judge either in Fredericton or Saint John, and we can send to our agent in these places and get what we want at any time. But with these Judges it will not be so, they will be holding a Court here to-day and somewhere else to-morrow, and so may not be come-at-able just when they are wanted. As to being able to get at them in vacation, the hon. member knows that that would be the last occasion on which they would be required; it is in times when prompt and swift measures have to be taken that the difficulty would be experienced.
Mr. Johnson.—It strikes me that the greatest difficulty is with regard to the appointment of clerks, and believing, as I do, that the Clerks of the Peace will be able to attend to the duties, with a sincere desire to improve the Bill, I shall move the following amendment:—”Strike out all the words after ‘good behaviour,’ and insert the following:
“And the Clerks for each Court shall be the Clerks of the Peace for the respective Counties; and shall not be allowed to practice in the Court of which he is such Clerk.”
Hon. Mr. Fisher.—I sincerely hope the hon. member will not press that amendment, for if the Clerks of the Peace are found to be the best parties to fill the office of Clerks to the County Courts, the Government may appoint them. There may or may not be cases where it may be found it would not be best to do so, but leave it with the Government to do this or not as may be found requisite. In some cases the Clerk of the Peace may not want it, and then he would be compelled to give up his present office. I hope the hon. member will withdraw his amendment, for even if the principle may be the very best that can be proposed, by leaving it open the Government are at liberty to adopt it.
Mr. Wetmore.—I do not think this is the right place for this amendment to come in; it would, I think, be better to let it follow section five.
Mr. Stevens.—I think there is reason in the amendment, for the Courts of Common Pleas being abolished, the Clerks will have all the papers for reference in case they are wanted, and in the place of the duties and emoluments taken from them, we give them others of a more extended character.
Hon. Mr. Tilley.—I think this will involve an increased expenditure for salaries, for if you deprive the Clerk of the privilege of practising in these Courts, although he may still do so in the Supreme Court, he will require additional pay. If you say the Clerk of the Peace shall be appointed, he will have to give up his practice in the Courts which he is now allowed, and if he refuses to do that, then he must give up the office of Clerk of the Peace, and thus the most valuable men, those most qualified to fill the office, would not get the appointment, from the fact that there will not be sufficient Court business to pay them for the services they will be required to perform if they are confined to that alone. I think it should be left in the hands of the Government.
Mr. Smith.—I think everything goes to show that the two offices should be combined. The Clerk of the Peace has usually a safe for the deposit of his papers, and this is another consideration why he should be appointed. Now the Clerks of the Peace are also the Clerks of the Court of Common Pleas in every County all over the Province, and if they are made Clerks of the County Courts, and the business is any way large, they will gladly take this office combined with the other, but of course a good and efficient Attorney would not accept it, if he is prevented from practice and confined to this alone.
Mr. Johnson.—I think that instead of increasing the expense we shall by this arrangement lessen it. We shall get a better man if he knows that both offices are combined than as though they were separate. If the Clerk of these Courts is allowed to practice, it gives him a most dangerous power, for having all the papers in his possession in the various causes that come before the Court, he would be enabled to use them for the furtherance of his own cause. Just think of a practising Attorney being allowed to scrutinize the records of judgment and other papers affecting a case in which he was interested. Why, if he were at all unscrupulous he would pick out little troubles and difficulties and use his knowledge for his own purposes, and thus litigation would be infinitely increased. Besides when it became known that such a power lay in the hands of this man, people would shun the Court, afraid to place their cases in the hands of men who were in a position to take advantage of them.
Mr. Skinner.—I beg to suggest to the Attorney General whether at the present stage it would not be well to report progress, with leave to sit again. I have a case that stood the order of the day for yesterday afternoon, but I gave way to allow this Bill to be committed, and I should now like to take it up and get it out of the way.
Hon. Mr. Fisher.—As it is now only a question of detail, and the principle of the Bill is established, I am quite willing to report progress if I can get it made the order of the day for to-morrow a 11 o’clock.
Mr. Speaker having resumed the Chair, progress was reported, and the Bill made the order of the day for to-morrow morning at 11 o’clock.
His Hon. the Speaker called the attention of the House to the fact that there was a rule distinctly laid down in regard to amendments, which had been violated in the two last amendments moved to the second section of the County Court Bill. An amendment was moved to the latter clause in the section which provided that a clerk should be appointed who should hold his office during pleasure. A division took place upon this amendment and it was lost. After this, another amendment was moved by the hon. member from Northumberland (Mr. Kerr) on a previous part of that section. This was not according to parliamentary practice. He then read an extract from May’s Parliamentary Practice to prove that when amendment was made to a clause in a section, and a division taken upon it, they could not go back and move an amendment to a previous clause in the section.
Mr. Johnson said if they were to be governed by the rules in the House of Commons they would have to take the question upon the principle of the Bill before it was committed at all. We had a rule in our own Province which we should be governed by, and that rule was our own customs. It had been customary to take up amendments one after another in any section of Bill that members chose to move them. The rule in the House of Commons and in Canada and Nova Scotia was always to take the question whether they would sustain the Bill or not upon the second reading, but in New Brunswick we read the Bill a second time and then go into Committee and read it section by section. We have always been governed by our own rules, and it has always been a rule in this House for members to move any number of amendments to any section or any clause of a section they thought proper.
Hon. Mr. Connell moved the House into Committee to take into consideration a Bill to establish an additional Polling Place in the County of Carleton.
Dr. Dow in the Chair.
Mr. Johnson asked what the effect of this Bill would be upon the elections to be held for Ottawa? The elections are to be held under the law as it now stands, and the law fixes certain Polling Places. If they established a new Polling Place, and votes were given there, would it not affect the seat of the member who was returned for that County?
Hon. Mr. Connell.—This Bill is very necessary to the inhabitants of the district, and to avoid the difficulty mentioned by my hon. friend I shall add to it a provision that the Bill shall not take effect until after the first of January.
The Bill was then agreed to.
Mr. Smith said he saw in the newspapers that an official list of Senators had been published in Canada, and he would ask the Government whether they still persisted in concealing and keeping back from the people the names of the Senators appointed, or the names of the Senators they recommended to be appointed.
Hon. Mr. Fisher said it was not in his power to give any more information than he did before.