Legislative Assembly, 19 May 1865, New Brunswick Confederation Debates


FRIDAY, May 19.

Hon. Mr. GILLMOR brought in a Bill to provide for paying certain expenses of the civil government of the Province. Also- a Bill to provide for repairs and improvements on Roads and Bridges and other public works.
Mr. GILBERT moved that the House go into Committee to resume the consideration of a Bill to cheapen and simplify the practice of the law, and to abolish special bail.
Hon. Mr. HATHEWAY thought that as there was not the slightest chance of getting this Bill passed by the House, it was no use to take up the timv in the discussing it, particularly as the Attorney General had prepared a Bill on the same subject.
Mr. GILBERT said the Bill before the House was not of a complicated nature, and could be easily understood. Fifteen sections of the bill had already passed the House, and he should like to have the question decided.
Mr. OTTY moved that the Bill be postponed for three months.
Mr. NEEDHAM-The Attorney General's Bill and the Bill which I prepared, are the result of the joint labors of the late Hon. Mr. Sireet, Mr. Kinnear and Mr. Charles Fisher, and I presume, having the result of their labors, we would be hardly justified in adopting a Bill of this kind, which changes our whole system of common law procedure, the provisions of which it would be impossible to carry out. I move that the law bills now on the fyles of the House, together with the Bill to be introduced by the Attorney General, be referred to a Select Committee of this House, in order that they may bring in a Bill at the next Session of the Legislature to reform the Common Law Procedure of this country.
Mr. OTTY.-I shall withdraw my motion in favor of that which Mr. Needham introduced.
Mr. GILBERT.-I expected the members of the legal profession would oppose this Bill ; it will, therefore, have to rest upon its own merits. It does not change the course of law procedure, but does away with unnecessary labor. The country requires this Bill, and the House by passing fifteen sections of it has adopted its principles. It has been drawn up with a great deal of care, and if there is anything wrong in it, let the legal gentlemen point it out. It would be an act of injustice to refer it to a Select Committee, for that would be an end of it.
Mr. CUDLIP.-I know the feeling of the country is, that law expences are too heavy ; that when counsel is retained his DEBATES OF THE HOUSE OF ASSEMBLY FOR 1865.    73 time is taken up in unnecessary proceedings, and in consequence has to have heavy fees. There are a great many of the members of this House in favour of the Bill, provided there is no difficulty in its working. It may bear hard upon some individuals, but there is no law passed that bears equally upon all. The House has had a long time to consider the merits of this Bill, and should come to a decision either to adopt or reject it.
  Mr. Lindsay. - I think we have had  enough of law commissions ; to put this Bill in the hands of a law commission would make it cost hundreds of pounds, and then it would soon want to be amended. The President of the Council thought the fees were too small when the amount to be collected was large, being only ten shillings for making out a writ ; but in that case the lawyer would have a retaining fee. I shall support the principle of the Bill, without they could show some absurdity in it.
  Mr. Kerr. - If I thought there was any  chance of getting the Bill through this Session, I would be in favor of it ; but I do not think there is the slightest chance, and, therefore, in order to get on with the business, I shall vote to place it in the hands of a Committee.
  Mr. Gilbert. - It is getting to be too  common a practice to delegate our power to a Committee. It is better to dispose of it this Session, and if there should be anything in it that was wrong, the other branch of the Legislature could point it out.
  Mr. L. P. W. DesBrisay. - The Bill  will have to be thrown out or referred to a Committee, for the House has no time to attend to it at this season of the year.
  Mr. McMillan. - I hope the Bill will  not be dealt with in that summary way. The Bill is not a new one, for we had it before us at the last meeting of the Legislature, when it was fully discussed. If there are any objections to the Bill, now is the time to make them, so that they can be discussed.
  Mr. Williston. - I was not in the  House when this discussion arose, but I understand that a motion has been made to refer this with two other Bills to a Select Committee. I think that is the proper mode of disposing of them. This is an important measure, and should be carefully considered; because it may, and I think it will, work with great injustice. The Bill to be brought in by the Attorney General has all the elements of success within itself ; it follows out the law procedure in England, which has been found to work extremely well ; persons at law are confined to the point at issue, and are not compelled to summon unnecessary witnesses ; for instance, an action is brought on a note of hand, the person coming to defend the suit has to state the ground of defence; whatever the ground of defence is, he is bound to set it forth ; therefore, the Plaintiff does not have to summon witnesses to meet an imaginary defence. I have not had an opportunity to examine the Bill introduced by my hon. friend from York, but I suppose there will be some good features in it. It is impossible for us at this season of the year to give this question the consideration it deserves, for it is a matter of the greatest importance, and may be a curse to the country instead of remedying the evils of which we complain. We should refer the question to two or three hon. members of this House, and they could give their attention to it and bring a Bill into the House next winter, which would be a benefit to the Province.
   Mr. Needham. - The hon. mover of this Bill challenges the legal profession to show where it is wrong. I challenge him to show any provision made for trespass and replevin ; that is one defect and no small one either. My hon. friend from Carleton talks about the cost of a law commission ; it is not the intention to refer the matter to a commission, but to a Select Committee ; how can a Select Committee charge for taking care of these Bills ? The motion is not to refer them to a commission at all. I was on a law commission once where I worked and was not paid for it, through political trickery and chicanery, but I am going to have it, for what I earn I have a right to. I tell my hon. friend he may be a good judge of some things, but he is no judge of law, and that is nothing to his discredit, for it is not his profession. I do not hesitate to say that that Bill is a complete jumble of nonsense, and it would be impossible to carry it out. Talk about carrying it up to the other branch of the Legislature! It would be laughed at. It will not cheapen law, but will increase litigation, putting money in the lawyers' pockets. It is not necessary that we should take up every Section of that Bill and show its absurdity, for there are some principles there that are perfectly right, and lawyers are willing to go for them. Lawyers get the credit of getting more cost than they actually do ; take for instance eight or nine pounds cost on a judgment by default, and how much does the lawyer get ? He gets four or five pounds; all the rest is paid into the Province, except a few shillings paid to the Judges ; about two-thirds of the whole cost goes into the lawyer's pocket. Is it fair that you should leave those other costs, while you cut down the lawyers and leave them nothing at all ? In this Bill you have 11s. 8d. charged for a writ; 2s. 6d. for a copy ; Clerk of the Court 1s. 6d. - making 15s. 8d. If the defendent settles this before the return of the writ the lawyer gets ten shillings, being 5s. 8d. less than he would have received if the suit had gone on. If it is right the lawyer should get 15s. 8d., why should he be robbed of part of it, as an inducement to the parties to settle, and pay the 1s. 6d. to the Clerk out of his own pocket? If the House is anxious to do what is lawful and right they will refer this Bill to a Select Committee. People seem to forget that law is a science, and to perfect that science and make it what it ought to be requires the united wisdom of all engaged in it. Therefore, it should be the lawyer's place to consider the provisions of this Bill. The hon. member from St. John has said, this Bill would prevent litigation in cases where the amount to be collected is small. The truth is, even now lawyers would rather do nothing than collect Bills that are under £20 by the summary process, for it does not pay them for their trouble.
  Mr. Cudlip. - If the reduction of fees  would induce parties to come to a settlement, would it not be patriotic for the lawyers to throw off a shilling or two of their fees to accomplish that object, when they consider the expense of juries and witnesses, and allow them, by shortening the business of the Court, to go home sooner than they otherwise would.
  Mr. Needham. - That is very good  doctrine. I wonder if that gentleman has not patriotism enough to supply the Poor House, because that would save the trouble and expense of the Collectors going round to collect the poor rates. He has just as much right to do so as the lawyer has to give his labor for nothing. Let me tell that hon. gentleman that the lawyers, as a body in this country, throw away and give away more costs than would feed ten poor houses. It is a common thing for a man when presented with a very heavy bill by his lawyer, to ask him to give off something ; and he can afford to do so, because there are costs charged in it that the lawyer never worked for. I believe if this House would refer this Bill to a committee, they would prepare a Bill to lay before the next Session of the Legislature of which the House would not be ashamed.
  Mr. Wetmore. - I fully agree with  many of the remarks made by the hon. member from the County of York. This Bill has been an annual offering, and it doubtless had a beneficial effect at the last election in the County of Westmorland. It seems to be my hon. friend's hobby, for it is always uppermost in his mind, being a species of monomania. There may be some necessity for law reform in this country. I am not prepared to deny this, but I am prepared to say that it is unfair for hon. members, and for him, to make the attack which he did upon the legal gentlemen of the Province. I am prepared to take any stand as one of those legal men, and challenge any other profession.
  Mr. Gilbert. - I did not make an attack upon the profession. I said that in some cases members of that profession might be found to be unscrupulous. I did not make a general attack.
  Mr. Wetmore. - I heard my hon.  friend deliberately say that he would not suppose that a majority of the legal profession were men of no character. If that is not an insinuation against a body of men, I am at a loss to know how you can make an insinuation against them. Probably he did not intend to make this assault ; and I think he ought not to have done so, occupying the position which he does, for there is an old adage which says, " It is a dirty bird which will foul its own nest." My hon. friend may have found some members of the legal profession who are not men of such sterling integrity as they ought to be ; but I assert that the lawyers of this country, as a body, are entitled to as much credit for integrity of character as any other class of men in the community, and the people of this country repose confidence in them. Large sums of money are placed in their hands without any security, for not one man in fifty will ask for the scratch of a pen to show for it. I have heard a great deal said about the Government being disposed to maintain vested rights. Now, I ask if it is fair play for men who have spent their time and talents in getting a profession to have their means of living wrested from them without an hour's notice, without even consulting the members of that profession, some of whom may have arrived at that time of life that they cannot earn a living by any other means. He (Mr. Wetmore) then proceeded to show the absurdity of the Bill in reference to the fees, and continued. - There is no originality in the Bill ; it was a section picked up here, and another there, and where there was an attempt made to originate anything, it amounted to an absurdity. Now, I might ask him where is the necessity of pleading the general issue. Suppose a man has sued an endorser of a promisory note, and his defence is that he did not receive notice that the note had been dishonored, where is the necessity in this case for the party to plead the general issue, and the plaintiff having to prove everything con [...]


New Brunswick. Reports of the Debates of the House of Assembly. St. John: G.W. Day, 1865-1867. Microfilm copies provided by the Provincial Archives of New Brunswick.



Selection of input documents and completion of metadata: Gordon Lyall.

Personnes participantes: