If the Minister now moves Section 10, we can have a discussion on it.
DAIL IN COMMITTEE.
Mr. O'HIGGINS
I move Section 10.
I beg to move the amendment I have already moved to Section 10. I am not going to waste time by repeating what I have already said about it. The interpretation of this Section seems to me to be a question of law. To the best of my opinion, it would be interpreted in any Court in the way I have said. I cannot guarantee what any judge might or might not say about it, but I put down this amendment and I pressed it because I believed the amendment of the Minister would not carry out the intention I had.
Mr. O'HIGGINS
The existing law, I take it, allows for an action. The effect of Section 10 is to remove that right, and the effect of the addition I propose to make is to qualify the removal of that right—to say that that right is removed, provided that the Under-Sheriff when he breaks and enters does, in fact, find goods or chattels of the judgment debtor there, or in the alternative that he can show reasonable grounds for believing that there were some such goods, animals, or chattels therein. No doubt there must be a difficulty. The Deputy is eminent in his profession, but I cannot see the difficulty.
I am not a factious opponent of the Government.
Mr. O'HIGGINS
I never made any such monstrous suggestion, sir.
I am quite honest—about this. (Laughter.)
Mr. O'HIGGINS
As I understand the matter, you have the existing law under which an action would lie against the Under-Sheriff; you have then this Section which removes it, and if you add my amendment you will find that it only removes that right of action when certain conditions are not fulfilled, and these are the conditions set out in my proposed amendment.
My only reason for rising again is that I seconded the motion for recommittal, because I am satisfied that the Minister and the Dáil generally were under a misapprehension as to where the difficulty lay. Deputy Fitzgibbon asked the Minister to point to the words in his amendment which gave back in certain circumstances the right taken away by the Bill. The Minister read the words of his amendment, and I listened to them very carefully. I could find no words in his amendment giving back anything whatsoever. His amendment provides for certain cases. He does not say what is going to happen when those cases arise. He does not say that when the Under-Sheriff acts without reasonable ground an action shall lie. If the Minister's amendment were accepted we would be in no better position than we would have been in if it had not been introduced. The amendment introduced from the Ministerial bench, in fact, although it sounds very nice, gives us nothing.
Mr. O'HIGGINS
re-read his amendment, and added "No action shall lie provided there is good faith."
I may be very dense, but I still fail to see the words giving back the right of action.
Mr. O'HIGGINS
It is not a question of giving back the cause of action; it is a question of qualifying and limiting the removal of the cause of action.
The difference seems to be, to a plain individual like me, between Tweedledum and Tweedledee. I am prepared to support Deputy Fitzgibbon because he says there is some legal difficulty in the case. I must say that I do not see it, and I do not think anybody else sees it.
Amendment put.
The Dáil divided:—Tá, 21; Níl, 26.
Tá
- Seán Ó Duinnín.
- Domhnall Ó Mocháin.
- Tomás de Nógla.
- Riobárd Ó Deaghaidh.
- Tomás Mac Eoin.
- Seoirse Ghabháin Uí Dubhthaigh.
- Seán Ó Ruanaidh.
- Liam Ó Briain.
- Sir Séamus Craig.
- Gearóid Mac Giobúin.
- Liam Thrift.
- Seán Ó Laidhin.
- Cathal Ó Seanáin.
- Seosamh Mac Giolla Bhríghde.
- Seán Buitléir.
- Domhnall Ó Bróin.
- Séamus de Burca.
- Domhnall Ó Muirgheasa.
- Risteárd Mac Fheorais.
- Mícheál Ó Dubhghaill.
- Domhnall Ó Ceallacháin.
Níl
- Donchadh Ó Guaire.
- Uáitéar Mac Cumhaill.
- Seán Ó Maolruaidh.
- Mícheál Ó hAonghusa.
- Séamus Breathnach.
- Deasmhumhain Mac Gearailt.
- Ailfrid Ó Broin.
- Seosamh Mag Craith.
- Domhnall Mac Cárthaigh.
- Pádraig Ó hÓgáin.
- Seosamh Ó Faoileacháin.
- Seoirse Mac Niocaill.
- Fionán Ó Loingsigh.
- Séamus Ó Cruadhlaoich.
- Criostóir Ó Broin.
- Caoimhghin Ó hUigín.
- Próinsias Bulfin.
- Séamus Ó Dóláin.
- Aindriú Ó Láimhín.
- Próinsias Mag Aonghusa.
- Eamon Ó Dúgáin.
- Séamus Ó Murchadha.
- Liam Mac Sioghaird.
- Tomás Ó Domhnaill.
- Earnán de Blaghd.
- Uinseann de Faoite.
Amendment declared lost.
Mr. O'HIGGINS
If the Dáil would allow me, I would move an addition which, in my opinion, meets the point, but meets it in a different way. To say an action shall lie in this is one thing; that no action shall lie provided that, is another thing. The same point is met, but I prefer the negative way of putting it, by saying that an action would not lie provided certain conditions were fulfilled. If the Dáil is willing to accept it I would now move this amendment (to add after Section 10):—
"Provided, however, that in any case where the Under-Sheriff shall break and enter the premises of a person other than a person against whom he has been called upon to enforce a judgment order or decree, he shall either have found any goods, animals, or other chattels of such last mentioned person therein or thereon, or shall have had reasonable grounds for believing that there were some such goods, animals, or chattels therein or thereon."
Do I take it that permission is given to move this amendment?
Agreed.
Amendment put and agreed to.
Question: "That Section 10, as amended, stand part of the Bill."
Put and agreed to.
I take it that that includes Amendment No. 4?
Yes.
Mr. O'HIGGINS
I move Section 15:—"(1) This Act may be cited as the Enforcement of Law (Occasional Powers) Act, 1923.
"(2) This Act shall come into force immediately on the passing thereof, and shall continue in force for six months thereafter, and shall then expire."
My amendment is to insert a new Section before Section 15. It has nothing to do with Section 14 or 15. It is simply the introduction of new matter into the Bill. It is to enable a County Court Judge before whom an action is tried, where he is satisfied that a defendant is honestly unable to pay the full amount of his debts without any default on his own part, to put a stay on the execution, either upon the decree or upon the levying of the amount of the decree. It was agreed on all sides, both on the Second Reading and in the Committee Stage, that it gave Sheriff officers very new and terrible powers, and particularly that of levying immediate execution after a decree. Now it seems not unreasonable that where some unfortunate judgment debtor against whom a decree is passed is unable to satisfy judgment by immediate payment, and his inability is due to no act or fault of his own, that some stay might be placed by a judicial authority on judicial grounds against the immediate execution of that decree. At the present time, whether through oversight or not I do not know, the County Court Judge has no power to give a stay of execution on his decree, with the one exception of an ejectment order for non-payment of rent. High Court Judges have that power. There the County Court Judge has, under an Act passed in 1887, power to give a stay, and enable a tenant to pay his rent by instalments if he thinks fit, and prevent him being put out of his holding In no other case can the County Court Judge put on any stay. They have been avoiding that in some cases, but not always by what is contrary to Magna Charta by delaying justice, and the County Court Judge who thinks it might not be proper to grant an immediate execution takes the drastic and, I venture to suggest, illegal course of refusal to hear a case at all, and of throwing it over to the next sessions. That may be attaining the ends of justice—but it brings justice into contempt when you have to attain its ends by illegality, and it is not conducive to respect for judicial tribunals when you have to try and find an excuse for injustice by another injustice, and by refusing to hear a litigant who comes before you. Now, another case in which it operates unfairly is this: two people may have claims against some man. One goes into the High Courts and gets a decree with a stay of execution. The other goes into the County Court, but the County Court Judge adjourns the case to the next Sessions. It is not tried, because if the Judge had tried it he could not give a stay of execution. Now, suppose the debtor becomes bankrupt, one man has a perfectly good decree, but the other has not, and the principle in bankruptcy is that as decrees are given they rank, and therefore one man who has obtained his decree will be able to get judgment over the other man, who took the more suitable and more economic course of going through the County Court. It does not seem unreasonable that County Court Judges should have the same power as High Court Judges in granting a stay of execution, and I think it is quite reasonable that they should have power to grant an order for payment by instalments. That is a power they do not possess, but is a power that is possessed by the High Court. I have framed this clause not entirely out of my own head, nor is it my own invention. I went to the Act of Parliament which already gives power to stay executions—that is, the Land Act, which deals with cases of ejectments—and I have modified the provisions so as to deal with any case that may arise. The clause has three divisions:
(1) Upon the hearing of any civil bill for debt or damages, if the County Court Judge before whom the proceedings are pending is satisfied that the defendant is unable to satisfy by an immediate payment in full the judgement and costs, and that such inability does not arise from his own conduct, act, or default, and that there is reasonable ground for granting an extension of time to pay, the County Court Judge may put a stay upon the execution of the judgment or decree of the Court, or upon the execution of the writ of fieri facias for such time as the County Court Judge thinks reasonable, and the County Court Judge may, if he thinks fit, order that the amount of such judgment or decree and the costs shall be paid by such instalments as the County Court Judge may appoint.
(2) If the County Court Judge is of opinion that the defendant can pay the first of such instalments forthwith, he shall so order. If default is made in complying with the order of the Court for the payment of the first or any subsequent instalment, the stay upon the execution of the judgment or decree, or upon the execution of the writ of fieri facias, shall be removed, and it may thereupon be executed forthwith.
(3) This section shall not apply to any judgment or decree given or pronounced before the passing of this Act.
(4) In this section the expression "County Court Judge" includes a Recorder and the Judge of a borough.
Sub-Clause (3) provides against going back and raking up decrees that have been given some years ago. I understand the Government do not desire that this legislation should be retrospective. I have an objection myself to retrospective legislation, which is generally unfair, and which, I think, ought only to be resorted to in extreme cases. I do not think this is an extreme case, and I do not think that where decrees are already given it would be reasonable, after a period, to come into Court and secure a stay in order to have an instalment order made. The last part of the section provides that the County Court Judge should include a Recorder.
Mr. O'HIGGINS
I accept that amendment.
I only wish to express my regret that sub-section 3 is in this amendment. From what the Deputy has told us it is clear that County Court Judges have been unable, even when they wished, to prevent the granting of judgments to people who might execute them at once. There might be cases of injustice in the past few years where the judge would have been very glad to stay execution if he could, but the Deputy has told us that he could not do it. I fail to see why, now that you are making discrimination, you should not extend the benefit of the right to claim the stay of execution to the man against whom judgment was given before this Act came into force. In the case of higher court judgments there was no question of the judge's right but in the case of County Court judgments the Judge himself could not prevent the creditors from executing. Surely that is not fair. Why not put the two things on a level now? If it is right to do it now in respect of future judgments, it it is right to do it for past judgments where a judge could not help himself and stay execution. I am against this sub-section and hope that the Deputy will not insist upon it.
I was afraid of coming into conflict with you, a Chinn Chomhairle, if I put it otherwise, because I rather thought we had an amendment proposed by Deputy Gavan Duffy in the Committee stage to have these decrees re-opened and I thought that you might drop on me if I tried to move the kind of amendment already rejected.
Mr. O'HIGGINS
If that particular sub-section comes out the amendment will not be accepted.
I think that if Deputy Fitzgibbon had not added sub-section 3 it would not appear that he was definitely in favour of its insertion. I am astonished and gratified at hearing the Minister accept this amendment because I gathered from the earlier stages of the discussion that this was not a Bill to interfere with or enlarge the powers of the Court. It had to do with the execution of the decrees of the Courts, and I want to suggest that it would have been very much wiser if the object sought for had been obtained by legislation enlarging the powers of the Courts and giving them this privilege to make discrimination between the classes of cases than to give special powers to a special executive authority which would enforce the decrees of these Courts in these special cases. The effect of paragraph 3 is going to limit very greatly the value of the new section. Since we met last I have received a communication indicating very clearly the kind of case which I fear may arise very frequently and, given the right or wrong kind as the case may be of a sub-sheriff, the effect of such cases would be very bad indeed. There are four small traders in a town in Co. Longford. Their premises were looted and their business destroyed by Crown forces in November, 1920. Their claims were heard but they have received no money. Decrees were granted but they have no money and no recompense of any kind has yet been paid. Against one of these four traders there are three writs and one civil bill served on him for goods, the greater portion of which were looted by 29 Black and Tans in November, 1920. To show the particular kind of man, and his desire to meet the legitimate claims, he says:—"I sold a field in May for £200, and divided it among my creditors. Judgement marked for so and so and costs in the Sheriff's hands at present." He wants to know if it would be possible to stay proceedings against him, and men like him, until their compensation claims are paid, when they would be glad to pay what they owe. In this case there is compensation coming to them some day. We are now telling the Sub-Sheriffs to go ahead and execute the decrees by any means they wish, and dispose of the proceeds in any manner they choose. If this section had been inserted without Sub-section 3 it might be possible for these men to go to the courts and ask for some kind of a review of their case and for a stay of execution, but now they are in danger of a decree being enforced, their goods being sold and the men being driven into bankruptcy, and there is nothing to prevent it as things are at present. That is just an illustration regarding traders. I have reason to believe that there is a very large number of farmers in the country entirely unaffected by the stress and strife, who are in a somewhat similar position because of certain circumstances economical, political and military, but we are going to leave them at the mercy of creditors who, enabled in this case to use the instruments set up with greatly increased powers are going to drive these debtors into bankruptcy. The acceptance of the new section is a very valuable improvement to the Bill, but a great part of its value is, as I have already stated, lost by the insertion of Sub-section 3, and I hope that before this Bill becomes an Act, some way will be found to delete that Sub-section.
Motion put:—"To insert a new section (Amendment 6), before Section 15."
Agreed.
I move the following amendment:—"In Sub-section 2, line 63, to insert after the word ‘and,' and before the word ‘shall," the words ‘its provisions, except Sections 5 and 6 thereof.'" As printed here, 5 and 6 should read 4 and 5. These two Clauses of the Bill I wish to propose shall not be limited to six months, but shall form part of the ordinary law. These sections are wrongly numbered as they appear on the Order Paper, and should be 4 and 5. The Dáil will remember that when this Bill was in Committee a clause was accepted directing the Sheriff to give an inventory of the goods seized to the debtor; another clause was accepted increasing from £5 to £10 the amount of bedding, tools of trade, and wearing apparel which the debtor might keep immune from the creditor. I ask that these two sections become part of the general law. They are not particularly appropriate to the Bill, and everyone realises that they ought to be part of the ordinary law of the land.
Mr. O'HIGGINS
Deputy Gavan Duffy made what he called himself certain feeble attempts to improve this rotten measure. His proposal now is that the feeble attempts should survive the rotten measure.
Hear, hear.
Mr. O'HIGGINS
That when throwing out this bit of garbage after six months, the gems that Deputy Gavan Duffy has embodied in it should be salved.
Hear, hear.
Mr. O'HIGGINS
I do not think that is a proper way to deal with the matter. Let the Bill go down unknolled, unhonoured, and unsung, including the feeble attempts; or, if the Dáil in six months thinks it is not such a desperate machine of destruction and ferocity that it is represented to be, let it consider it in a calm and deliberate fashion, and decide what portion of the Bill, if any, deserves to be perpetuated. I think we ought not to come to a decision here and now, and pick out two gems for posterity, particularly at the instigation of the gentleman who is responsible for the gems. I think a more impartial opinion ought to be before the Dáil than that of the Deputy.
It appears to me this amendment must go down, or the Bill goes down. To amend the ordinary law you will have to do it in a proper fashion. I think this suggestion is irregular.
Amendment put and lost.
Question put: "That Section 15 stand part of the Bill."
Agreed.