Vol. 6 No. 33
I move Amendment 1:—
In Sub-section (1). line 44, after the word "persons" to insert in lieu thereof the words "approved by the County Court Judge."
The meaning of the amendment is obvious. I think it should commend itself to the Minister in charge of the Bill.
The amendment is, I think, wrongly printed. It should be to delete the words in lines 44 and 45 "as he shall think fit," and to insert in lieu thereof "approved by the County Court Judge."
I am not proposing to accept this amendment for the reason that the County Court Judge has no real means of checking the under-sheriff's selections. A judge is not usually personally acquainted with the men who are likely to volunteer as special bailiffs and, in practice, he would simply take the under-sheriff's word as to the suitability of the person he proposed to appoint. The amendment has all the outward appearance of a sound amendment drafted with a vigilant eye to the protection of the rights of citizens, but it would simply be a futility in the Bill. The County Court Judge would accept, as a matter of course, the recommendations of a responsible official such as the under-sheriff and the thing would work purely automatically in that way.
There is the difference that the County Court Judge might like to see the persons who are to be employed by the bailiff, and if he saw some of the persons chosen he might not give them his certificate. (Section 2, as above, quoted). We are not quite convinced that the under-sheriff is going to be very choice in the selection of the persons who will assist him in the execution of these writs. It has not been unknown that the persons who have been employed in this work have been the most undesirable sections in the community. It is not a difficult thing to say that under-sheriffs shall submit the names and perhaps the qualifications of persons applying for the post, and perhaps even pass under personal review those who are to be appointed to assist him in the execution of this duty. After all, if it is proposed to give the under-sheriff full liberty to employ any person whom he likes for this operation, we ought at least to have some check upon the character of the persons who are to be employed. They are going to occupy decent premises sometimes; they are going to be placed in possession of decent houses, and come in contact with decent children, and unless we have some check upon the under-sheriff, there is no knowing what class of person will be engaged in this most unpleasant of duties. It is very often the most unpleasant of persons who will undertake to put into operation these unpleasant duties. The pay is high enough, the chances of loot are good enough, and persons of distinctly bad character may be chosen for this operation. I think there should be some little check upon the under-sheriff in the choice of his assistants. After all, the bailiff and the assistant-bailiff have hitherto at least been known.
took the Chair.
The public, or those members of it who made it their business to find out, or were able to find out, knew who were the assistant-bailiffs and who would be placed in the temporary possession of premises. In this case you are throwing the onus entirely upon and giving the discretion, to the under-sheriffs to employ such persons ad hoc for the special job at any time, and to take any class of person of any character. I suggest that it is not quite sufficient protection for the honest debtor, the decent debtor, who has a writ against him. We ought at least to have a little check upon the character and the qualifications of persons whom the under-sheriff may employ to assist him. I think the amendment is probably as good a check as could be suggested, and it would really mean that a panel would have to be approved before-hand, so that such persons could then be chosen by the under-sheriff as his assistants.
The Deputy's speech suggests that he has been rereading Dickens. My information is that under the normal law for which the Deputy has a certain remembrance— 27 and 28 Vic., Cap. 99, Sec. 5—the under-sheriff appoints and dismisses bailiffs at pleasure, and consequently there is no distinction between that position and the position of persons specially employed under this Act. If the Deputy were to be logical and consistent he should add: "Approved by the County Court Judge after inspection and special examination as to character, morals, antecedents, heredity," and so on. That is out of the question, and if we were to accept the Deputy's amendment it would simply add another fiction and another sham to the procedure and the trappings of the law. The recommendations of the under-sheriff would be accepted automatically by every County Court Judge, and every County Court Judge would be right in so accepting them.
That may be true, but I happen, perhaps, to have a little more confidence than the Minister appears to have in the County Court Judges. I do not think they would approve automatically; at least they would realise they were approving with a certain responsibility, and that responsibility would be borne by them. According to the temperament of the County Court Judge, and his confidence in the under-sheriff and the under-sheriff's discretion, he would exercise his own discretion as to whether he would approve of these nominees or not.
The Minister appears to think the County Court Judge, under the circumstances, would act as an automatic typewriter and do exactly what the under-sheriff suggested. But, if the Minister is right in saying there is no necessity for imposing any check here, and that under the old law the under-sheriff might employ whom he liked, what is the reason for this Section? Perhaps if the Minister could explain that, it might not be necessary to press the amendment.
Might I point out that the County Court Judge, as an institution, is passing, and it will be necessary for Deputy Johnson to put in what we call a Judge of the Circuit Court instead?
When the new Bill is passed we will alter our phraseology.
Amendment put, and negatived.
I beg to move:
To add at the end of sub-section (2) the words—
"The employment of any person specially to assist in the execution of a particular writ or decree or order shall not relieve from any responsibility the under-sheriff by whom he is employed."
The object of this amendment is to make it quite certain that the ultimate responsibility for the actions of those special persons employed by the under-sheriff will remain with the under-sheriff.
The amendment is unnecessary and, therefore, unacceptable. It would not be any useful addition to the Bill and would not effect any purpose that was not effected already. No lawyer would succeed in convincing a Court that because this Act allows an under-sheriff to get his bailiffs in one way rather than another, his responsibility is less than it always has been.
I beg to move amendment 3, as follows:—
In sub-section (5), line 15, after the word "powers" to insert the words "and be subject to all the obligations," and in line 16, after the words "vested in" to insert the words "or imposed upon."
If the facts are, as the Minister for Home Affairs states, that the appointment of these special bailiffs does not relieve in any way the under-sheriff of any responsibility which attaches to his position, I think he will have no difficulty in accepting this amendment, the object of which is to make that position quite clear.
I am prepared to accept the amendment, with the saving clause: "So far as it is consistent with the provisions of this Act."
I wonder do the draftsmen of the Minister approve of that kind of provision being put into a Bill? The Minister is prepared to accept an amendment on behalf of the Government, which says: "So far as it is consistent with the provisions of this Act." He is imposing upon judges this obligation, which is really our obligation. Has that the approval of the Attorney-General, I wonder?
But, without this saving clause, the amendment would have a ring of intimidation about it. We are quite frank on the matter that it is necessary, in the existing circumstances, to give increased powers to under-sheriffs and to lean rather towards those officers who, in the face of very special and very abnormal difficulties, are trying to clear off arrears which are so large as to constitute a weakness in the whole internal credit and, to some extent, the external credit of the country.
Now, I do not question at all that it is right to state that these people are subject to all the obligations that are imposed normally on the under-sheriff, but to balance that I want to put in that we are not imposing any additional obligation on them—any special obligation on them—and that the other provisions of this Act hold. It is just as reasonable for me to ask the Deputy to accept a saving clause as it is for the Deputy to ask me to accept an amendment, and it is not because of their cancelling out or anything that way, but just to keep the balance.
I confess I cannot understand the object the Minister has in mind, or what purpose he seeks to gain by insisting upon the saving clause, unless it be to soothe the feelings of the under-sheriff's bailiff or special bailiff. That seems to me to be the only thing it can accomplish. Surely the words that the Minister proposes in the saving clause are inconsistent with the Bill and do not apply here at all.
I would be satisfied with the saving clause with these words: "Subject to the provisions of this Act."
Will the Minister tell us what this will mean? This is one of the provisions of this Act, and if this is inserted what other provisions of the Act can be referred to? Will the Minister tell us what the effect of such a phrase would be, and we, perhaps, could consider it then.
I think the amendment that has been moved is a reasonable one. The attitude of the Minister seems to be that it may be a wolf in sheep's clothing. Where the wolf appears I do not really see, but there may be a reason for considering the addition that the Minister for Home Affairs thinks is necessary.
I would like to explain that it may not be possible to be sure that all the obligations applying to permanent bailiffs could hold in the case of these special people temporarily engaged. There are certain obligations as to place of residence and publication of names, and so on, which apply normally and which may not apply and may not be possible to apply in all cases under this Act. I am perfectly prepared to accept the Deputy's amendment only in such a way as to ensure that it could not be read or interpreted hereafter to cancel or militate against any of the other Sections or provisions of the Bill.
I am certainly mystified by the attitude of the Minister. The claim of the Bill is that the under-sheriffs should have power to appoint assistants to the bailiff or himself to assist him in the execution of decrees. These assistants are to have all the powers of the bailiffs, but unless some provision is made that the granting of the powers also impose responsibilities it will leave the position this way, that the assistants will have the powers but no responsibility, and the amendment seems to be not only reasonable, but eminently necessary to ensure that the under-sheriff will be careful in his selection of his assistants.
I am accepting the amendment.
As it stands?
I am accepting the amendment with the addition.
One cannot understand the addition because the addition seems to be intended to deprive it of any force. If there are provisions in the Act which the Minister can point out would be weakened by the acceptance of the amendment as it stands, then let us know where they are. I suggest to the Minister that, if he accepts the amendment as it is put down and then finds there are loopholes he would like to stop up that he could find another occasion for putting in a further amendment and explain why it is required. So far he has only suggested that there may be a possibility of loopholes, but he does not say there are any.
If the Deputy will agree to the addition of the words "Subject to the provisions of this Act," I will accept the amendment; otherwise I am opposing it.
I would be quite prepared to accept the amendment in that form if I could understand the object of making the insertion suggested by the Minister. The Minister has not given any explanation as to the necessity for that insertion, and therefore I will not be responsible for an amendment with what I regard as an unnecessary addition.
Neither will I.
I wish to refer to a statement that was made by the Minister for Home Affairs on the Second Reading of this Bill in my absence. I regret I was not present when the Minister made the following statement:
Deputy Davin, in the late general election, did me the honour of writing me up in his election literature as the bailiff's pal. He referred to me in "my new role of the bailiff's pal."
I was surprised when I was told of this, and was much more surprised when I read of it in the Official Report. Whatever my opinion may be with regard to the Minister and his associates, that statement, so far as I am concerned, is both unfounded and untrue. The many good qualities of the Minister and my failings and shortcomings are known to the people of the Division that sent me here. I cannot see how the Minister could draw on his imagination to the extent of making that statement without any proof in support of it. I have never seen any document that would bear out the statement. Such a document was not issued by me. Even if I held that high opinion of the Minister which his words convey, I had not the money at my disposal to give him the advertisement which he apparently would desire. Therefore the statement is absolutely unfounded and untrue, and if the Minister is not generous enough to withdraw it I hope he will take the necessary steps to prove the statement.
I do not see how the matter arises directly on Section 2 of the Bill. I have only to say this, that I had the leaflet which I spoke of in my pocket for quite a long time, intending to speak privately about it to the Deputy. I had it in my pocket until it went to bits there. It contained the words I quoted and several other remarks, and concluded with an appeal to the honest and intelligent electors of Leix to vote for Davin.
Quite untrue.
It is not untrue that I had such a poster sent up to me from Leix by a friend of mine there, and that it concluded with an appeal to vote for Davin. Far too much has been made of the matter. If the Deputy were here when I was speaking he would realise that I was not taking it very tragically or losing much sleep about it. It is certainly true that a leaflet of the kind was sent up to me from Leix, and that the Deputy's name appeared on it.
I ask the Minister in fairness then, as he does not withdraw what he said, to try to procure a copy of that, because it was not issued at my expense or with my knowledge.
You are subject to the obligations of the law.
I beg to move:—
In line 24, to delete the words "on demand."
The intention of the amendment is that the bailiff when he comes to make a seizure will be required to produce his warrant without a demand from the person upon whom the seizure is made, or from the person upon the premises at the time. I think the necessity for this is obvious: many people who are not accustomed to have these seizures made upon them will be in a state of excitement at the approach of the bailiff, and they may not think of asking him for his warrant, with the result that the bailiff would not be bound to produce it. The amendment would also have the effect of preventing people, who are not authorised to act as bailiffs, pretending they were bailiffs and making seizures on that pretence. I ask the Minister to accept the amendment.
I do not agree with the Deputy as to the obvious necessity for the amendment. My view of the amendment is that it is unnecessary. The first and most natural thing for a person to do, when his house is entered by a stranger who proceeds to take away property, is to ask him who he is and why he is taking the property. That is a demand within the meaning of the Section. I cannot visualise anyone refraining from asking such a question except for the deliberate purpose of evading the law. These words were in the Act of last year, and I know of no case of hardship that occurred under the Act which was in force for six months of last year. If the Deputy knows of any case I will be glad to hear it. I think there is a possible consequence of the amendment to which the Deputy did not advert. If the amendment is inserted, and if the debtor purposely refrains from asking, or purposely makes it impossible for the bailiff to show his authority, just as men succeed every day in evading the personal service of a writ, then under the amendment nothing more could be done to execute the judgement. In that way the Deputy quite unconsciously would put a very powerful and effective weapon into the hands of a fraudulent debtor. He would only have to refrain from making any demand for the authority of the bailiff, and then the bailiff or other officers would simply have to wait there in the hope that at some time the debtor might decide to ask the bailiff for his authority.
The effect of the amendment is that it will not be necessary for the owner or occupier to ask for the production of the warrant. It does not necessarily follow that the debtor is supposed to have the warrant produced to him. Anyone who is in apparent possession will do. That is how the Bill reads. We all know what views people take about the strong arm of the law and what effect the entry of a sheriff and his bailiffs has on many people. At such a time some people might forget their rights. It should be the business of bailiffs or others to produce the warrant. The entry of a posse of men with the sheriff has an effect on the mentality of many people, and as a result they might not ask them for their authority. I think it should be the duty of the State to see that persons entering should produce their authority.
The explanation of the Minister with regard to what is meant by demanding would not, in my opinion, comply with what is meant here. I think the whole tendency of the Bill is to throw the onus on the debtor rather than on the bailiff or whoever is responsible for the seizure. The tendency, I think, should be that the debtor is protected as far as possible and within reasonable limits. The onus of doing everything according to law should be thrown on the officers of the law.
Certainly. I agree, but we should not put any weapon into the armoury of fraudulent debtors. If you say that in all cases the warrant of authority must be produced to the defendant or to the person in apparent possession of the land and premises and if the bailiff is given no opportunity of producing that authority, then he will simply have to mark time until some such opportunity presents itself. On demand no one is going to let one, two or three men into a house to take away property without asking who they are and what right they have to remove the property.
Visualise a widow as a defendant.
I put the case to the Deputy of a debtor purposely refraining from asking for the authority or purposely making it impossible for the bailiff to show his authority. That is the kind of case you have to guard against. The routine thing, in practice, when people come along to make a seizure under a writ or judgment is to say, "We are So and So, and we have come on such an errand." If that is not so—of course it is so, and every Deputy knows it—there is no person who, when a man goes into premises to take property, is not going to ask what right he has to take his property. The words in the Bill are perfectly proper, and to eliminate them leaves an opportunity to a cunning debtor to refrain from giving the bailiff an opportunity of producing his authority. The obligation on the bailiff should be merely to comply with the demand which will be forthcoming in every case by officers going to effect a seizure on foot of a writ or judgment.
Still I am not convinced. I do not think that the deletion of these words would prevent the sheriff from serving the writ. The fact that a person does not ask does not prevent the sheriff from serving the writ. The only thing, as I would visualise it, is that the debtor and the sheriff would both be there, and the sheriff might be running after the debtor to serve his writ.
It means simply that if a person keeps a careful watch for the under-sheriff's men and happens to be not at home every time they call no seizure can be effected.
Or other person in possession.
The baby in the cradle.
Or the poor widow who might be nervously excited and who might be afraid to say a word.
I propose an amendment: In line 32 to delete the words "if practicable." The idea of this amendment bears a certain amount of relationship to the idea of the previous amendment. I want to throw on the officers of the law the responsibility of doing everything required. I believe the use of the words, "if practicable," takes away any advantage there is in this call for an inventory. That is, who is to judge what is practicable and what is not? The retention of those words, in my opinion, practically destroys the advantage in the portion of this Section with regard to the inventory.
The Deputy's amendment may be taken to mean that the inventory must be furnished whether it can be furnished or not. That is scarcely reasonable on the part of the Deputy. I thought better of him. Another interpretation would be that if the inventory cannot be furnished, then things come to a standstill, and there could be no removal. That, I think, is also unreasonable, though not quite as unreasonable as the other interpretation. If the Deputy has, say, five cows and a goat on grass ten miles from his house, and the sheriff decides that it is his duty to seize those, on foot of some writ or judgment, the position that is created, if the amendment is accepted, is that the sheriff's men must proceed to the place, round the five cows and the goat up to a corner of the field, and send a dispatch rider to the Deputy to tell him that they had seized these five cows and a goat and that they proposed to remove them. Is not that so?
Within fortyeight hours. Does not "removal" mean removal from the bailiwick or something of that kind?
If the Deputy will make it clear that "removal" means removal from the bailiwick——
That is the intention, but I think that the Section itself is not clear as to what "removal" means. What is the meaning of fortyeight hours? It would not take fortyeight hours to remove these cattle.
Yes, but taking it even as a case of removal from the bailiwick, the Deputy does not at all advert in this, as in his previous amendment, to the possibility of a deliberate attempt to make it impossible for the under-sheriff or his officers to comply with certain provisions that are or may become statutory. I cannot believe that it is entirely due to innocence on the Deputy's part. Tipperary has not, any more than Clare, a tradition of complete reverence for law and all its forms, and the idea of dodging service of a particular document is not unknown there. Under the terms of the Deputy's amendment, it would merely become necessary for a person whose property has been seized to make it very difficult or to make it impossible to have such an inventory furnished to him, and no removal could take place. If the under-sheriff, under this Bill as under existing legislation and under the Act of last year, seized wrongfully, in excess, if there is fraud or negligence, he is liable. But to say that he must not seize, he must not take steps to remove the property until a full inventory has been served on the owner, puts him in the hands of a fraudulent debtor, and the whole basis of this Bill is that there is on a large scale in the country something like a campaign as between fraudulent debtors and under-sheriffs, and a very deliberate and persistent attempt to defeat the law, and the practices of the law. I think the acceptance of the Deputy's amendment would help towards that end, and I could not accept it.
The Minister says that the whole basis of this Bill is the assumption that there are a large number of people criminally intent upon evading legal obligations. That may be, but running right through the Bill is an assumption that all persons who may at any time be brought into the employment of an under-sheriff are upright, honest discriminating, careful citizens. I deny that, and I am not prepared to agree to the Minister's view that the law should be such as to leave in such persons' discretion, as he apparently intends, the duty of taking a careful record and inventory of the goods seized. Let us take the incident that the Minister adduced for Deputy Heffernan's consideration—five cows and a goat. One of these cows may be a prize shorthorn, but the under-sheriff or his assistant will care nothing about the value of that beast. It is a cow; it may be worth £20 or £200, but it is a cow to him. If the under-sheriff or his officer is obliged to submit an inventory, then the debtor's position will be very much more secure against what I think is a likelihood of indiscriminate seizures and irresponsible action, not to say illegal, or criminal, or immoral action on the part of the sheriff's officers. The necessity for submitting an inventory is clear. The use of these words "if practicable" leaves a loophole to the sheriff's officer not to do a thing if he wishes and if he finds an excuse for not doing it.
No.
But it does. "If practicable" raises the whole question of whether he can prove it was practicable.
It is not a question of having an excuse; it is a question of having an explanation that would satisfy the court.
Yes, and the explanation he would give would be one word against another, and if he had, as he probably would have, the State Solicitor behind him, his explanation would be received much more readily by the court than that of the debtor who was assumed to be evading the law. The objection that the Minister has raised could easily be met if he would propose to insert a provision which would allow the under-sheriff to submit that inventory by registered post within 48 hours. But this term, "if practicable," is too loose altogether. It is like the last proposal of the Minister, to insert the phrase, "so long as it is in accordance with the Bill." These loose phrases in Acts of Parliament are very likely to lead to much litigation and expense, and I think that this phrase, "if practicable," should not be embodied in the Bill.
My reading of the Section is quite different from that of some of the Deputies. An inventory of the chattels shall be made within 48 hours of the seizure. I can understand objection to the words "if practicable" if they come immediately after the word "seizure," but between "seizure" and "practicable" comes the one little word "and." To my mind, the inventory must be made out within 48 hours after the seizure, and, if practicable, before removal.
"Seizure," I take it, is the act of taking particular property into custody. There can be no seizure effected while the goods are still on the man's premises, in his house, or in his field. The Deputy's amendment, if he strikes out "if practicable," would mean what I have said; that if he had stock on grass ten miles from his house they might be rounded up in to a corner of a field, but they could not be removed from the field until he had been served with an inventory.
What is the intention of introducing 48 hours? It should not take 48 hours to make the seizure. You give 48 hours after the seizure to make an inventory.
Yes, 48 hours. Within 48 hours from the seizure he must present his inventory. If possible he must present his inventory before he removes the goods—if practicable—and if he removes the goods without presenting an inventory, if it could be shown that it was practicable for him to give such inventory before removal, then obviously he has broken the law and is liable.
The punctuation of the Section is wrong then. Should there not be a comma after removal?
I do not think that is very material; but as I said before, the Deputy's amendment puts on the under-sheriff and his officers the duty of performing an impossibility, or else he puts a very real weapon into the hands of a fradulent debtor. He may dodge the furnishing of the inventory, and then there may be no removal. Deputy Johnson complained of vague and loose words such as "if practicable," and referred to a previous amendment where I wished to insert "subject to the provisions of this Act." I rather fancy that I have seen that in a great many Acts.
You have seen references to specific sections.
My contention is that the debtor whose goods were seized, and who was not served with an inventory before the removal of the goods, can sue the under-sheriff, provided he can prove it was practicable to serve such an inventory on him.
I do not wish to persist, but I can see that the actual amendment I have put down may have effects it was not intended to produce. I think the Minister can see what I am aiming at. I would be willing to accept Deputy Johnson's idea, that the inventory should be served by registered post, but not having a legal mind and viewing it purely from a layman's point of view, I object to the insertion of the words "if practicable," as I think they render the Section quite useless. I think they are words which should be very rarely used at all in an Act, for they throw on somebody the decision as to what is practicable and what is not. Who is to decide?
The Court.
I would ask the Minister if he could see his way to meet my suggestion without actually accepting my amendment.
I do not see any way in which I could meet the Deputy. An under-sheriff removing property without having furnished an inventory over his name, or the name of his agents, must do that with full advertence to the fact that if it can be shown to the Court that it was practicable for him to serve the inventory, then he is liable.
I wish to move the amendment standing in my name. It is: In Section 5, line 43, to delete the words "not exceeding in the whole the value of £15." The intention of this amendment is that the Sheriff should not have power to seize from artisans and others the tools and implements of their trade, and that the value should not be restricted to £15. My intention in putting down this amendment is not in any way to support people who wish to evade the law, and who wish to get credit without incurring the liabilities involved by the getting of such credit. But I think there is a fault on the other side of the case also, and that is that a good deal of harm has been done in recent years by the excessive credit that has been granted to people of very little means. We think it would be a very great hardship that the under-sheriff should have power to come and seize the tools of a trader or such persons. Credit is sometimes thrown at such persons, and it should rather be that persons should not give credit, because it means that there must be recourse to harsh means to get redress.
The limit under the existing law is, in fact, very much lower than £15. It is £5. To raise that to £15 is a considerable concession in an Act of this kind. It was a concession made last year in the Act which was in force for six months, and if my recollection is right, it was a concession to the combined eloquence of ex-Deputy Gavan Duffy and of Deputy Johnson. I think Deputy Heffernan is somewhat of an optimist if he expects to drive me to greater flights of generosity than ex-Deputy Gavan Duffy and Deputy Johnson did.
Under the old Act of Parliament, which covered this particular question, £5 is allowed to be kept by the defaulting debtor. £5 worth of machinery or tools in prewar days would not be purchased for £15 to-day.
The cost of living has fallen since the Act of last year.
The cost of machinery or tools has not fallen. But that is not the point. The Minister made a statement of fact that under the old Act of Parliament the limit was £5. I am not talking about last year's Act, which was temporary. This is going to be a permanent Bill. The annuities are fairly well paid now, but there are £150,000 of debts outstanding, principally for shop goods. Those who give these people credit should have known perfectly well that the law would not give them the power to take away from the debtor his means of existence. I cannot understand why the law should give power to the under-sheriff to come in and take away, for instance, a man's plough. A man's plough may cost £9. Does the Dáil think that the machinery on the farm would be sufficiently provided for by £15? It is ridiculous to say so. Of course, we all agree that debts should be paid; but we also agree that the man giving credit is to blame in many cases. In the inflated period through which we have passed the shopkeepers actually pushed these goods on to the people, now defaulting debtors, and they want under this Bill to take away their tools and implements and send the unfortunate people into the County Home.
I do not know why the Minister for Home Affairs would not accept the amendment from Deputy Heffernan if it is a reasonable one, even though it does exceed the demand made by ex-Deputy Gavan Duffy and Deputy Johnson. I am afraid that it is not a reasonable amendment, because if you leave out "the total value of £15," it might be construed that almost everything on the farm was a tool or implement of the farmer's trade. Take the case of a man with a dairy farm, and he might almost say that the cattle were necessary to his trade and that he could not carry on his business without them.
Cattle are not tools or implements.
They are implements in a sense.
They are not implements.
The danger to the farmer is, if this amendment of Deputy Heffernan's is carried, that it will cause a restriction of credit.
A good job.
A good thing.
I do not agree with the Deputies who say that it is a good thing. In my opinion the farmer will need credit for the next year or eighteen months very badly indeed. We all know that farmers are carrying on on bank overdrafts. If you once lessen security you restrict credit, not merely from merchants but from the banks. At this time, above all other times, to frighten creditors and make them feel that by one device or another the debtor may be able to exempt his property from distraint, would be to do the whole country very ill-service, and I oppose the amendment.
I agree that credit is of vital importance to the farmer at the present time; but the type of credit that he is getting at present is the worst possible form of credit and it would be a good thing for the farmer if it could be restricted. It is very unlikely that banks and other credit institutions will have to be forced to resort to seizing a man's wearing apparel and bedding. I think the £15 set out in regard to farming implements is ridiculous, because a reaper and binder will cost at least £50. Hardly any machine can be bought under £15. It would be a disgrace that any creditor would be put in the position of sending a bailiff to seize a man's wearing apparel or bedding.
It should be remembered that these Acts which fixed £5 were passed at a time when farmers either never got credit or always paid their debts. Therefore farmers or their implements were never considered as possible subjects of seizure. Times have changed. On this score of credit, I would ask Deputy Cooper and the Minister to look at the question from a slightly different angle. If the farmer's tools and implements are liable to be seized on foot of the tradesman's debt, what bank is going to give that man credit if he has not the means of making his farm productive? It is the possession of his tools and implements that allows him to be worthy of credit. If they can be seized, then his occupation is gone and he can get no credit.
After all, a man's fingers are not able to do very much in the way of turning up soil. In a long time he might manage to grow a little garden crop of potatoes. If the farmer's tools and implements of agriculture are liable to be seized, then his credit is gone. The Section sets out a person's necessary wearing apparel and bedding and the necessary wearing apparel and bedding of his family, and the tools and instruments of his trade. Surely it is desirable to relieve from molestation the tools and implements of a man's trade? Otherwise the chance of his carrying on and paying debts for which he might not yet have been sued, is nil. It would mean an increase in the number of decrees and less opportunities for the man paying his debts. If one creditor can get a decree and seize a man's ploughs and machinery, then other creditors will be left without a chance of recovering their debts.
, at this stage, resumed the Chair.
The insertion of this reference to £15 is almost useless in reference to a farmer's implements and of very little value when one is dealing with a man's wearing apparel and bedding. I am sure the Minister will be inclined to bring other Acts of Parliament into operation. If a debtor was reduced to £15 worth of wearing apparel and bedding for himself and his family, he would be almost in the position of a vagrant and a vagabond, probably going through the streets almost naked and sleeping on straw. I cannot see the sense of leaving in this limit of £15, which I last year endeavoured to raise to £25 or even £50. I agree with Deputy Heffernan that it is better to alter the Section so that it would secure immunity from the seizure of necessary wearing apparel and bedding and tools and implements which are necessary to enable a man to pay off debts, either the debt in question or future or existing debts that might be incurred. I, therefore, support the amendment.
We are beginning now to see just where we are. Deputy Heffernan mentioned a plough and a mowing machine, and if a mowing machine why not a reaper and binder, and if a reaper and binder why not a threshing machine, and why not a Fordson tractor? All these are tools and implements of the farmer's trade. Therefore, no matter what he owes these must not be touched; they are necessary, to him at least, for his occupation, so that we get down to the position that Deputy Heffernan may get his threshing machine, his Fordson tractor, and his reaper and binder, his plough and his mowing machine and, when confronted with writs or judgments, he will sternly forbid the creditor to lay a hand on any of these necessary tools and implements of his trade. The creditor, the person who sells these things to him on credit, fits him out with the plough and the mowing machine and the binder and the threshing machine and the Fordson tractor, but he cannot touch any of these things by way of recovering the amount due by the debtor. That is an impossible position. Let us now move into another sphere. A taxi-cab worth two or three hundred pounds might possibly, I suppose, be taken to be an implement of the proprietor's trade. A printing plant worth one thousand pounds or thereabouts might equally be interpreted to be a necessary implement of that particular trade, and running over these few examples which naturally I have taken in a rather exaggerated form simply to emphasise my point, you can see that there must be a limit, and that there must be a price limit. I submit that trebling the amount that was fixed under the ordinary law is a very substantial concession. That concession was made last year when the temporary Bill of last year was going through. I am not prepared to advance on that. I am not prepared to take the line that Deputy Heffernan may order expensive machinery in the county town through an agent, and then when sued for the price can sternly forbid the creditor to lay hands on any of these things. That would create topsy turvydom in commercial life. In the Bill of last year £15 was the amount. The cost of living has decreased since then, and the wisdom of the Dáil has increased.
I would refer the Minister to recent statements in the Dáil by the Minister for Agriculture and the ex-Minister for Industry and Commerce on the cost of living which, as between June of last year and now, has certainly not decreased.
When you have the cumulative effect of a decrease in the cost of living and an increase in the wisdom of the Dáil, I sincerely hope that we are not going to interfere with the figure fixed last year.
The Minister has made out his case that the deletion of the words suggested in the amendment would carry the thing to absurdity and that any man purchasing implements of this kind could entrench himself in a formidable position if this amendment was carried. But would the Minister consider the advisability of a change in this figure of £15 and an extension of it? I would remind him that the increase in this figure was argued very cogently and very ably in the last Dáil by Mr. Gerald Fitzgibbon, who advocated that the figure should be advanced to £20—I am speaking from memory, but I think that was the figure. I think it would be extremely difficult for any person in modern circumstances to hold any equipment sufficient for living at £15. When the original figure was fixed at £5 it must be remembered that that was not in the years immediately preceding the war. It was fixed a good many years ago, when the cost of living was very much lower than it is now, and particularly when the cost of tools and implements was very much less than they are now.
And production was largely domestic.
And, as I am reminded, when production was very largely a domestic matter. Production to-day is not a domestic matter. I suggest that £15 is too low a figure. I had intended to make particular reference to a certain part of the speech which was delivered by Mr. Gerald Fitzgibbon last year when he suggested the figure should be raised to £20, and now I suggest that £20 should be the minimum. I think a higher figure might be sufficient to enable a man to entrench himself as suggested by the Minister. His exaggeration was just exaggeration. Still, because the amendment carries the position to one extreme, there is no reason why we should go to the other extreme. There is no reason why we should consider £15 is an adequate figure to enable a person both to live and to conduct his ordinary livelihood and meet his social obligations——
I think Deputy Heffernan's amendment is what is before the Dáil.
I agree. All I ask the Minister to do is, even if Deputy Heffernan's amendment be rejected, to still consent to increase the figure of £15.
I think the Minister for Home Affairs is undoubtedly obsessed by the mechanical side of life, because Deputy Heffernan will bear me out when I say that the majority of farmers in Ireland have not got Fordson tractors, and depend really upon horses. I gathered from Deputy Wilson, when he interrupted me a while ago, that farmers' stock is not exempt from seizure. What is the use of having a plough if you have no horses to pull it? If your horses or your donkeys are taken away and are seized, what is the use of having a plough?
The neighbours are always very kind.
Yes, but I never knew neighbours being too willing to draw a plough through heavy land.
They would send their horses.
That would mean that the farmer, having carried on some unsuccessful borrowing in one direction, now borrows his neighbours horses, which may be also seized. I do not think it is a practical proposition that farmers could go to a bank with, or that they would improve their credit in the bank by saying they have a plough but no horses to work it.
But if he says he has no plough——
Unless you make the animals that pull the instrument exempt, as well as the instrument itself, I do not think that there is any case for Deputy Heffernan's amendment.
I am sure the real intention of the Minister is not to be absolutely inflexible. I do not say what should be the absolute limit of this amendment, but I do think that a limit of £15 is too narrow and ridiculously low in view of present prices. I am willing to withdraw my amendment if the Minister would advance a little to meet me in the matter.
I accept the Deputy's apologies and will consider a figure between this and the Report Stage.
Will the Minister give us some indication of what that means? We have often had these promises. If we had a promise that the Minister will consider it favourably we would probably be justified in accepting it, but without some more assurance of a favourable consideration and a hint as to the range of the concession we must press the amendment.
When I say I will consider a figure, I mean just that and no more. I am not willing to give any undertaking or what would be equivalent to an undertaking that the figure would be increased. If it can be increased, I should say the range would be very small. It would be a matter possibly of £5.
I ask leave to withdraw the amendment.
No, we refuse.
Leave to withdraw the amendment refused.
I beg to move:
In sub-section (1), line 56, to delete the words "twenty-four hours" and to substitute therefor the words "seventy-two hours."
I understand that in the old Statutes the limit was 72 hours, and that 24 hours is an innovation. I think it is very inadvisable that such a short limit should be retained. Take the case where a seizure has taken place, perhaps from an honest person who found himself or herself in an unusual position. What attitude would such a person take towards the seizure? The only attitude would be to get busy at once and try to collect by some means or another the amount of the debt and to release the stock or chattels, having got the necessary amount. As the Section stands they have only got 24 hours to do that. I think it is quite reasonable to ask to have the period extended to 72 hours.
I would wish the Deputy had been clearer as to the reason for the delay which he requires from 24 to 72 hours. It seems to me that the only honest reason could be to give the debtor time to raise the money.
That is the reason I gave.
Yes. It would be the only proper reason. But the debtor has already had more than sufficient warning. He has been decreed; he has been asked by the plaintiff's solicitor to obey the decree, and in addition to that the Under-sheriff has probably asked him three or four times. So that from the point of view of warning he will have had adequate notice before things come to this stage. It would be only in a very exceptional case that a debtor would not have at least a month after the decree has been given—that is, between the granting of the decree and the making of any seizure. I am sure the Deputy will agree with me that even in naming a month I am giving a very conservative estimate indeed. It is probably in the great majority of cases nearer to six months. All that period must be counted as a period of notice and of warning, during which the debtor might be busy, and should be busy in exhausting the resources of civilisation towards raising the money. I have tried to deal with the Deputy's reasons for an extension to 72 hours. I would like to touch briefly on our reasons against that. It involves the tying up of two bailiffs day and night over that period. It involves in that way additional expense; and additional expense, the Minister for Finance explains to us from time to time, is to be avoided wherever possible. I submit that clearly it could be avoided here. You have a position where arrears of about £170,000 exist throughout the country. That problem involves a busy time for Under-sheriffs and their officers, and I can see no case whatever for coming to an arrangement whereby two Sheriff's officers will be tied up for three days, day and night, simply, according to Deputy Heffernan, because the debtor has not got sufficient notice and time to raise the money. That is one reason.
I will give another reason against this 72 hours. We are living in rather turbulent times and the tendency is to settle every question on the physical plane. Seventy-two hours' notice gives to the debtor time to organise his posse wherewith he will meet and argue the point with the sheriff's posse. That may not seem to the Deputy a very serious objection, but to us who have responsibility for seeing that the judgments and the writs of the Courts run freely, or as freely as possible, it is a very material factor in the situation.
I could have understood the Minister's argument as being logical and sound if he had argued, as he has done, in favour of 48 hours. I refer back to Section 4, and I remember the Minister's defence of the Section as it stands. Bear in mind that these two propositions are his own:—
"It shall be the duty of every under-sheriff under whose authority execution shall be levied upon goods, animals or other chattels to cause an itemised inventory of the chattels seized to be made out and within 48 hours of seizure and, if practicable, before any removal to cause to be furnished to the defendant (or other person in apparent possession of such chattels) a duplicate of such inventory, signed by the under-sheriff or by a person acting on his behalf."
Under Section 7 he suggests to the under-sheriff that after 24 hours he may take these articles and sell them. What is the reason for suggesting that before removal, which may be within 48 hours, an inventory should be supplied to the debtor? It seems to me the suggestion to supply an inventory is to let the defendant know what goods are being taken so that he may protect himself. If that may extend to 48 hours, after the goods are sold, as it may under Section 7, where is the protection? The sheriff's officers seize, say, cattle which may, as I suggested earlier, be pedigree beasts as to the value of which the under-sheriff knows nothing. Under Section 4 he is obliged within 48 hours to submit an inventory of the goods seized and, if practicable, before any removal. But within 24 hours, or at least after the expiry of 24 hours, he may have sold these animals, before having supplied the inventory. There is a contradiction in these two Sections, and I suggest if Section 4, which has been adopted by the Dáil, is to be maintained in its present form Section 7 should be altered at least to accord with it. You cannot defend the 24 hours after passing Section 4. Deputy Heffernan thinks that 72 hours is the minimum notice that should be given, and I am inclined to support him.
There are one or two points that I think the Minister has overlooked in regard to the limit. Is it not quite possible if chattels, goods, or cattle are sold within, or at the expiration of, 24 hours that the notice that can be given is altogether too short? What will happen in actual fact is that surrounding the sheriff's bailiffs will grow up a body or a very undesirable type of people who will watch sheriff's sales and buy goods at a ridiculously low figure. Ordinary people will not know of these sales nor take advantage of them. The effect of the Section will be that goods will be sold greatly under their real value. I believe that is very undesirable. I think the main aim of the law is to see that goods seized realise a price as close as possible to their actual value. It is well-known that such has not been the case at sheriff's sales. I am trying to avoid that state of affairs. I intended to ask the Minister if it was not a fact that under previous Statutes the limit was 72 hours and that it was only recently restricted to 24 hours.
