I want to repeat, with emphasis, that the ceasing of the bailiff to function is the first sign of a crumbling civilisation. The execution of court decrees is the ultimate act of Government. It is the vindication of the legal right of the individual citizen as against his neighbour. We have to vest it with the law, and the machinery of law is the modern substitute for the stone axe. If law and the machinery of law break down, then we are back to the stone axe or some other suitable instrument by which one man can enforce his right, real or imaginary, against his neighbour. You have to get used to the idea that the mere negative destructive attitude of regarding courts and public officials of one kind or another, whether they be policemen or under-sheriffs or anything else, is not going to make for ordered progress here and is not going to make for decency of life here. If in any coming election, whether a general election or a bye-election, Deputy Davin or any other Deputy wishes to make use of these remarks of mine, he is very much at liberty to do so. The Bill that is introduced now is a temporary measure to be enforced for one year only. Its object is to secure that better enforcement of court judgments by strengthening the machinery for that purpose.
There are certain arrears in the hands of some under-sheriffs, particularly in Tirconaill, Kilkenny, Cork, Galway, Tipperary, Kerry and Wexford, where the amounts of outstanding decrees—that is, the amount of arrears— is entirely excessive and abnormal, and require very stringent measures for their reduction. Within the last few months there has been a certain improvement, but nothing very striking, and it is hoped that the enactments of this Bill will mark a definite turning point. The Bill provides for an increase in the number of Sheriffs by means of temporary additional appointments in the larger areas, such as Galway and Cork; an increase in the number of men, and an improvement in the quality of bailiffs, by authorising the under-sheriff to take on additional bailiffs to whom the State will pay small salaries in addition to fees; the removal of certain limitations and checks, which the ordinary law places on the operations of the under-sheriff, but the effect of what at present is to make it difficult or impossible for the under-sheriff to do his work; inquiry at the District Courts into the means of judgment debtors who have no seizable chattels, but who are believed to have assets or sources of income which an under-sheriff cannot seize. I put to Deputies the position of a gentleman living in the Shelbourne Hotel without any furniture and with an income, perhaps, of £1,000 from war loans. He owes money to his tailor. The tailor secures the decree, and Deputies can let their minds play on the dilemma of the under-sheriff in whose hands that decree is placed for execution—that is, dilemma under the existing law.
The Bill further provides for a speedier inquiry into the merits of claims made by third parties, that is, a debtor's wife, parents, or children, to goods seized on the debtor's premises by the under-sheriff. It is commonly known that goods which the under-sheriff wishes to seize are claimed by third parties. Now, these five heads, which I have stated, may be taken as a fair summary of the 29 Sections of the Bill. A similar Bill was introduced last year, but was limited to six months. It was successful in operation, and what is particularly gratifying is, that the under-sheriffs report that the mere fact that the additional powers were in existence was usually sufficient to induce judgment debtors to pay, without it becoming necessary actually to use these powers against them. It is one of the strongest arguments for the present Bill that no single instance of abuse or hardship was brought to my notice during the currency of the last Act, in spite of the dismal prophesies of its opponents. This earlier Act has been copied, almost word for word, in Part 1 of the present Bill, out Part 1 of the present Bill contains also some new provisions.
Before examining the Bill Section by Section, it is perhaps advisable to remind Deputies that the powers of the Under-Sheriff, as they existed hitherto, were devised rather to protect helpless and unfortunate debtors against overzealous under-sheriffs than to facilitate the under-sheriff, that is, the existing law grew up in, and was devised to meet the conditions of a country where the law and its officers were powerful and where the solvent but defiant debtor was a rare phenomenon. He is not a rare phenomenon in this country at present. Conditions in this country, though improving, are still far removed from ordinary commercial life. The judgment debtor particularly in the country parts, has learned to imagine that he is stronger and more astute than the under-sheriff; he delays, he threatens resistance, he removes his chattels, he arranges for fraudulent third party claims and up to the present he has done all this with a certain amount of success. The under-sheriff who has to face this unscrupulous and determined resistance, is hedged round by so many rules and regulations that he frequently feels that the contest is hopeless and that all he need do is to make an appearance of trying to enforce the judgment without really making a struggle, a state of mind quite fatal to the proper conduct of his business.
To give an idea of the restrictions under which the under-sheriff labours, it will be only necessary to quote the following rules and to imagine their effect as applied to-day to a seizure in districts where even the Gárda Síochána stations are in danger of armed raids and where the debtor's premises are situated perhaps fifteen miles from a town or a railway station and are approachable only by rough mountain roads. The under-sheriff must effect seizure by daylight. He must remain in possession three days before selling. He must not take the goods out of the county in order to sell them. He must advertise the sale as a sheriff's sale. He cannot seize money or notes in execution of County Court decrees; there may be ten times the amount of the debt, in hard cash, in the house; it cannot be touched. He cannot go into a house unless he is peaceably admitted; if he is recognised and the door is slammed in his face he is helpless. He will not be allowed fees for more than two bailiffs however many he may find it necessary in fact to employ. If the debtor's wife or son claims everything on the premises as against the creditor, it is so difficult, in actual practice, to disprove the claim that generally no attempt is made to disprove it.
It will be seen that these rules give an unscrupulous debtor at the present time too great an advantage even over an energetic and determined under-sheriff. I would like to state quite definitely that, in my opinion, there is nothing in this Bill which causes an unnecessary hardship to any honest man, and I am fortified in that conviction by the fact, which I have already stated, that during the six months of last year, when the Enforcement of Law Act was in operation, no single case of hardship was brought to my notice. If Deputies will remember, there were very dismal forecasts here as to what the effects of that Bill would be upon the people through the country. If I am wrong, and if there was hardship, I would like to hear of it. If any Deputy can quote any definite concrete case of abuse or hardship occasioned by the operations of the Enforcement of Law Act last year, I want to hear of it, so that we may in this Bill here, which we are considering, guard adequately against any danger of a recurrence. I want Deputies to take the view that in present circumstances here, and in present conditions here, it is absolutely necessary for our credit, both our internal credit and our international credit, that people should understand that the writ of the Courts is going to run in every square mile of our territory and that there is not going to be any addition to the necessary uncertainties and the necessary delays of the law, no uncertainty whatever as to the decree of the Court, once given, being executed. The solvent but defiant debtor must be brought to understand that this campaign against the under-sheriff is not going to be in the future, as it has been in the past, rather a pleasant game with the dice heavily loaded against the public official.
Going through the Bill, if Deputies will follow the Sections, I would like to comment briefly on each Section. The effect of Section 1 is to confer on the Minister for Home Affairs the power of appointing under-sheriffs. I am not aware that there is any objection to this, or any better alternative. It also gets rid of the old statutory form of declaration which is medieval, unsuitable and unnecessary in present circumstances. In reading Section 2, Deputies should remember that under the existing law the under-sheriff must rely entirely on his regularly-appointed bailiffs. This Section overrides the present law, and practically amounts to this: that under-sheriffs may engage men as additional bailiffs as and when they find it necessary. Sub-Section (3) of Section 2 authorises the Government to help the under-sheriff to get bailiffs by paying weekly wages so as to attract a decent, reliable type of man. In some counties it is almost impossible to secure reliable bailiffs at present, because the only pay is by fee, and the fees are too uncertain to attract anyone except the poorest type. Sub-Section (4) refers to men employed specially— that is, not employed by the week or by the month, but simply on the spot for casual work, such as driving cattle to the nearest pound or the nearest railway station. Sections 3, 4 and 5 are repetitions of sections in the previous Bill, and require no particular comment or explanation. Section 6 enables an under-sheriff to seize money or securities for money in execution of county court decrees. It is, under the existing law, within the power of an under-sheriff to seize money in execution of High Court decrees, and the effect of this Section is to extend that power to decrees of the County Court. Section 7 abolishes the rule compelling the under-sheriff to remain in possession for three days before selling. Under present conditions it would be difficult, and in some places even dangerous, to enforce this rule. Now, speaking on the Bill of last year with reference to this three day delay, I said:
Any delay there was in the past was a right of the creditor rather than a right of the debtor, or was inserted for the advantage of the creditor rather than for that of the debtor, but it did not in the past work out just in that way.
In many places the three days' interval simply gave to the debtor and his friends an opportunity for organising to ensure that there would not be many hardy bidders for the goods in question, and generally it proved to be an opportunity for defeating the ends of the law rather than being of any advantage to the creditor. It is considered now that that interval should be almost abolished and it should be left to the discretion of the under-sheriff to sell at any time that he considers most favourable, and to sell in such a way as to ensure the best price for the seized articles."
Section 8 empowers the under-sheriff to sell outside the county, or, to be more accurate, outside his bailiwick, and to recover the additional cost of doing so. This matter was debated very fully when the corresponding section of the expired Act was before the Dáil, and it was pointed out by me and others that apart from questions of intimidation, a better market value could frequently be found outside the bailiwick. I would like to give some illustrations of that. Furniture, for instance, seized in Howth could be best sold in a city of Dublin auction room, which is in a different administrative county and a different bailiwick, and the natural market place for North County Dublin cattle is the cattle market in the City of Dublin. Probably the City of Derry would be the best market for many places in Co. Tirconaill. The town of Athlone is the natural market town for many districts not in the same county. In general, and quite apart from the local boycott, county borders have no necessary connection with natural markets and this particular provision would be a useful one even in the most normal times.
Section 9 deals with the validity of purchase from an under-sheriff. The object of this Section is to protect the buyer of seized goods. Without some such assurance purchasers would run undue risks. If you propose to relieve the under-sheriff from his present obligations of the local auction, the three days' notice, and the sale, properly branded as an under-sheriff's sale, then you must insert some such provision as is contained in this Section. You must give the purchaser of the seized articles a title valid against all the warrants in the world. If you say to an under-sheriff: "You may seize A.B.'s cattle or stock, train them to Dublin, and sell them there in open market, without any indication that your sale is a sheriff's sale," then you must protect the purchaser by giving him an absolute title to the goods he buys. It is the only alternative to the present course of the local sale, the three days' notice, and the notice to everyone that it is a sheriff's sale. Section 10 is a necessary section, and is really consequential. If you give an under-sheriff the power of sending goods to a distance for sale, then you must insert a provision to ensure that the interruption of his actual physical custody of the goods will not break the seizure, so to speak. The Section is inserted by way of caution to cover periods when the seized goods or cattle are not actually in the custody of the under-sheriff—for instance, cattle sent by train for sale at a distance.
Section 11 is self-explanatory. It is designed to put a stop to the simple device of keeping a look-out for the under-sheriff and shutting the door in his face. The under-sheriff is normally liable to be sued by the creditor if he seizes too little, and by the debtor if he seizes too much, and the result is to embarass him unduly in the performance of his duties. Section 12, therefore, relieves the under-sheriff from the possibility of action by either the creditor or the debtor—by the creditor for seizing too little, and by the debtor for seizing too much, provided there is no fraud, malice, or gross negligence. The presence of one or more of these elements would need to be proved before an action would properly lie. Section 13 is an important and an entirely new Section. It may be paraphrased thus: "If the under-sheriff seizes goods in the debtor's house, but other members of the family claim these goods, the under-sheriff may ignore such claims if he thinks fit. If the claim is well founded, the injured party has a right of recovery against the debtor."
That is a Section that I anticipate will give rise to a certain amount of comment and criticism, and in anticipation of that criticism I would like to state the situation from the official administrative point of view. The Section is an attempt to put an end to fraudulent claims by the debtor's wife and family. It is an everyday experience of under-sheriffs to have the only valuable piece of furniture, for instance a piano or a side-board, claimed by the wife of the debtor. Everybody knows that the claim is false, or, even if true, that the creditor has a better moral claim, but under the existing law it simply does not pay the creditor, or the under-sheriff, to contest the wife's claim, and a return of nulla bona is made. No doubt this is a Section which should not be enacted without full consideration, but it is considered to be necessary under all the circumstances, and I submit the following arguments in its favour. The present system has become notoriously ineffective. It is calculated to bring the law into contempt and it is an incentive to perjury. The under-sheriff will not be bound to ignore a third party claim; he has complete discretion and he will ignore the claim only when he feels that the circumstances justify him doing so. An under-sheriff is usually a lawyer; he has therefore the necessary legal training. He is unprejudiced as between the parties, and this is not the first time that he has been entrusted with quasi-judicial work. The third party is given a right of recovery against the debtor.
