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Date: 1866-07-16
By: Province of Canada (Parliament)
Citation: Province of Canada, Parliament, Scrapbook Debates, 8th Parl, 5th Sess, 1866 at 47-49.
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LEGISLATIVE COUNCIL.

MONDAY, July 16^th, 1866.[1]

The Speaker took the chair at 7 ½ o’clock.

After routine,

Public Buildings at Toronto.

Hon. Mr. Macpherson inquired whether it was the intention of the Government to restore the Parliament Buildings and Government [text missing] of Toronto [text missing] placing them [text missing] of Upper Canada for the use of the Local Government of that Province.

Hon. Mr. Fergusson Blair said it was the intention of the Government to make an appropriation for the purpose.

First Readings.

The following  bills were received by message from the Legislative Assembly, which were read the first time and ordered for a second reading to-morrow.

Bill to [text missing] rendering of judgment in Court of Queen Bench in Lower Canada.

Bill to [text missing] the Executive Government for [text missing] departure from the [text missing] of the Audit Bill in expending [text missing] invasion of the [text missing] military force on the frontier.

Bill to amend the Act incorporating the cure of the parish of Notre Dame de Quebec.

Bill to amend the 27^th and 128^th Vic. chapter [text missing] incorporating the Board of Trade of the City [text missing]

Bill to amend chapter 24 Consolidated Statutes of Canada relative to patents of invention.
Bill respecting [text missing] of causes in the Court of Chancery of Upper Canada.

Ursuline Academy, Chatham.

Hon. Mr. Crea [text missing] the said reading of the bill to incorporate the Academy of the Ursuline Nunnery, Chatham.

Read and referred to the Private Bill Committee.

The House then adjourned.

[1] This portion was crossed out. The day reappears on p. 48.

• (p. 48)

LEGISLATIVE COUNCIL.

MONDAY, July 16, 1866.

The following report forms part of the debate on the subject stated, but was held over until the Commissioner of Crown Lands was in his place to reply to the Hon. Mr. Boulton.

Poundage by Sheriffs.

Hon. Mr. Boulton moved the adoption of the following report: —

LEGISLATIVE COUNCIL,

Committee Room, 11^th July, 1866.

The committee to whom were referred the returns of the several Sheriffs in Upper Canada, made in pursuance of addresses from this House of last session, in regard to poundage charged by them on executions whereon no sale took place, and to the expenses of advertising land for sale for taxes, beg leave to report:

That they have examined the said returns relating to poundage, and are much surprised to find that the said Sheriffs have, in manifest violation of the provisions of the Common Law Procedure Act, and of the decisions of the Judges of the Superior Courts, exacted poundage on executions whereon no sale took place. Your committee cannot avoid reprobating in the strongest terms, the course thus pursued by the Sheriffs, and particularly after the proceedings of this House last session; and to declare their unanimous opinion that, should such a course be persevered in, any Sheriff so violating the law should be dismissed from his office. Your committee consider that the Sheriff’s office is one of great honor and profit and should be conducted with the strictest integrity; and no suspicion should exist that a public officer exacts from the poor and unfortunate any fees which are not sanctioned by law; and your committee consider it the duty of either branch of the Legislature to inquire into abuses, and if possible to prevent a continuance of them.

By the provisions of the Common Law Procedure Act, although the Sheriffs are prohibited from receiving poundage on executions where no sale takes place, a discretion is very properly left to the Judges to allow any Sheriff additional fees in any particular case where the Sheriff can satisfy the Court or Judges that he had much additional trouble, and ought to receive further renumeration therefor, they may allow it However, in cases of this kind the Judges would not be influenced by the Sheriffs, but, while considering what was just towards these officers, would not disregard the unfortunate and poor debtor.

It would seem by the Sheriffs thus perserveing in demanding poundage where they are not entitled it to, that they are unwilling to submit to the judges any claim for extra trouble or services as if they were apprehensive of not obtaining justice. Your Committee are convinced that in no instance where they have been appealed to, have the judges failed to afford ample renumeration to any officer of the Court in their power. In illustration of this view, it may be remarked that the judges on a claim o fhte Sheriff of the County of Wetnworth for $6,000 for poundage, allowed $3,000 over and above all ordinary fees. A sum doubtless amply sufficient to indemnify him for any extra trouble or service in the matter.

The CCommittee append hereto the amount of poundage received on executions for the last year, on which no sales took place, and also a statement of the amount received for advertising land for sale for taxes. Your Committee consider that the expenses of advertising lands for taxes are very great, and do not seem to be based upon the principle adopted by printers of charging by the line or number of words.

The system adopted by the Sheriffs generally of charging a percentage of the amount due upon each lot or separate piece of land respectively, your Committee consider operates very injuriously, and oppressively towards those who unfortunately have the most taxes to pay. This will in all probability be guarded against in future by a provision in the new Assessment Law introduced into the other branch of the Legislature. Your Committee are very much surprised to find that those Sheriffs whose returns are not mentioned in the annexed schedule have not thought proper to comply with the address of this House, but have acted in total disgregard of its authority.

All of which is respectfully submitted.

G.S. BOULTON,

Chairman.

Appended to the report there was a schedule showing that the Sheriffs of Elgin, Grey, Huron and Bruce, Lambton, Northumberland and Durham, Ontario, Peterboro, Perth, Simcoe, Victoria, Welland, Wentworth, Carleton, Essexy, Haldimand, Lennox and Addington Oxford, Prince Edward, Waterloo, Prescott and Russell, had all made returns of poundage thus exacted contrary to law, during the last year, the sums forming in the aggregate an amount of $5,565. The following Sheriffs had made no returns of poundage: Halton, Hastings, Leeds and Grenville, Lincoln, Lanark and Renfrew, Middlesex, Norfolk, Stormont, Wellington, York and Peel. Sixteen of the Sheriffs reporting the sums charged for advertising sales of lands for taxes, stated the amount in sums varying from $21 to $1,009, the aggregate being some $5,000, while the rest made no returns or stated the charges at so much per lot advertised; in one part of the country the charge per lot being 54 ½ cents, in another $1 39.

In brining up his motion the hon. member said that the exaction of poundage under the circumstances stated in the report, had been found extremely injurious and oppressive, by poor debtors especially, and it had been thought highly necessary to put an end to the grievance. The practice was in direct violation of the law, and he trusted that Parliament, as the guardians of the public interests, would adopt such proceedings as would immediately put a stop to it. If any other public officer charged with an important duty were to pursue a similar course, and improperly demand and exact fees, not only without the authority of law, but contrary to its express prohibitions, and appropriate such fees to his own uses, the press of the country would soon be loud in his condemnation, but, somehow in the case of Sheriffs very little of anything was said.

The office of Sheriff was one of great importance and power, and people did not like to complain of them, but that was only a stronger reason why the Legislature should interfere to protect ufnrotunate persons from illegal exactions on their part. The law plainly laid down that they were not to take poundage when there had been no execution. The reason why poundage was allowed when the executions took place, was that the Sheriffs were held responsible to the creditors for the goods sold, for safe custody, embezzlement, breakage, &c., but the idea that because a seizure had been made, though the debt might be paid for within a couple of hours, the sheriff should charge just as if he had sold the […]

• (p. 49)

[…] effects was a monstrous imposition, and should immediately be put down; in fact the law had been passed for the express purpose of putting it down, and he yet trusted it would have the effect of doing so.

Formerly the law was vague, and while it was vague the sheriffs might perhaps be excused for putting a construction upon it favorable to themselves, but when the statutes were revised the Commissioners took care to use such language as would forever do away with such doubts by clearly stating that poundage should not be taken when there had been no execution. It might be thought that £7 or £8 was a small thing to complain of, but to a poor man it was a greater hardship than a larger sum to a rich man.

His object at present was to take the opinion of the House as to the impropriety of the acts of the House as to the impropriety of the acts complained of, and he hoped that the adoption of the report should have the effect of preventing such illegal exertions in future. He had brought this subject before the House last year when moving for the returns. As would be seen by the schedule attached to the report most of the sheriffs had responded, but some of them had taken no notice of the order. This he conveived was treating the House with a degree of contempt which should not be allowed to pass unrebuked. It was clear, however, from the returns made that it was the uniform practice of the sheriffs to levy these illegal fees, and that it had been persisted in even since the matter was brought under the notice of the House last session.

The Committee to whom the returns had been referred, was a large and intelligent one, and they had come to the unanimous conclusion that the wrong must be immediately remedied. He might have taken the extreme course of asking for an address to His Excellecny, praying him to dismiss the sheriffs who had offended on this way, but he had adopted a milder course, in the hope that it would prove as effectuakl.

If public servants were at liberty to set aside the law governing their actions it was quite useless to legislate, but these gentlemen should be taught that they could not do so without serious consequences to themselves. The sheriffs could not plead ignorance, for they were generally educated and intelligent persons. The feeling throughout the country was strong against these exactions, and he had just received a letter from a person he did not know, reproaching him for not having followed up his action of last session. He trusted the report would be adopted, and that if hereafter any sheriff was found taking poundage when there had been no execution he should be dismissed from his office.