They will be executing the orders of the court. The creditor's hope of getting his money from an obstinate debtor will, in many cases, depend upon the character and energy of these men, and it will be my aim, in so far as I can secure the concurrence of the Minister for Finance, to fix a scale of remuneration which will attract a sufficiently good type of man and provide an incentive to him to do his work honestly.
In Part I. of the Bill, Deputies will find that Sections 8, 9, 10, 11, 12 and 13 are practically incorporated as they stand from the temporary Act which is in force and which will continue in force up to the 31st of next month. These sections have been before the Dáil before and they have been discussed and considered by the Dáil. They have been in operation for some years now. When the last renewal of the temporary Act was before the Dáil, I indicated pretty clearly to the Deputies that the permanent proposals which we would make, governing the execution of Court Orders, would not differ widely or essentially from the main provisions of the temporary legislation.
Part II. of the Bill—the portion dealing with the examination of debtors—is also a retention of the provisions which exist in the present legislation. That is a portion of the Act which has given considerable satisfaction to the country. Practising solicitors in the country assure me that by means of the powers set out in that portion of the Act debts are recoverable which were not recoverable in the past at all. Before these provisions were adopted it was often a matter of very considerable difficulty to recover a debt, even after the Court had given its decree. It was very difficult to recover from a man who had a source of income but no property capable of seizure by the under-sheriff. A man could live in a hotel and contract debts, have decrees given against him by the Court, and successfully evade the payment of his judgment debt in the absence of the special powers set out in Part II of the Bill. Under that portion of the Bill the debtor may be summoned to attend in Court for examination as to his means, and there can proceed there before the Judge or Justice a detailed cross-examination of the debtor as to his ability to pay. If, as a result of his examination, the Court is satisfied that the judgment debtor is in a position to pay, and is fraudulently evading payment of his lawful debts, it is open to the Court to make an order that he shall pay either by way of lump sum or by way of instalments, and that he shall proceed to clear off his liability.
In Section 18 Deputies will note that:—
If the debtor fails to pay the debt and costs, or any one or more instalments thereof at the time or times at which the same is or are made payable by an order under this Part of this Act, the Justice may, on the application of the creditor order the arrest and imprisonment of the debtor for any period not exceeding three months, and thereupon the debtor shall be arrested and imprisoned accordingly.
Imprisonment in that case is not imprisonment for debt. It is imprisonment for contumacy, for failure to obey the order of the Court, after the Court has satisfied itself by examination, and on the evidence placed before it, that the debtor is, in fact, in a position to pay.
The other section to which I would like to direct the attention of the Deputies, because it is new, is Section 24. In the past cases have come under notice, where, under the judgment of the Courts, clear possession of a house has been given by the under-sheriff to the owner. Very often that process of placing a man who has got his judgment from the Court in possession is one involving a certain amount of trouble and expense. What has happened is that the owner who has secured possession in that way locks the door and goes away, and the tenant who has been ejected comes back and retakes possession. If in the course of retaking possession he uses violence in re-entering, that would be an indictable offence. But if he happens to have a duplicate key of the house and secures entrance I am advised, as the law stands, he commits no offence if no violence is used, and the legal owner has to commence once more to set the machinery of the law in motion to secure his ejection. I simply put it to Deputies that that is reducing the process of the court to ridicule. It is not a right or proper thing that, after the owner has secured possession of his house under the judgment of the Court, he should be placed in the position, simply because the other party secures peaceful re-entry, that his judgment is so much waste paper, and that he has to proceed once more to seek redress from the courts. Section 24 therefore is designed to cover that position, and I am trusting that the Deputies will agree with me that the owner, having secured possession of his house, ought not be put in the position where he would be compelled to stand day and night over the premises which he had just recovered possession of, possibly at considerable expense.
The portions of the temporary legislation which disappear in this Bill are: (1) the provision for appointing under-sheriffs (it is considered that it is not necessary to retain that power); (2) the imposition of a special levy of one shilling in the £ against defaulting debtors; (3) the protection of the under-sheriff against action in cases where he makes an unnecessarily large levy.
Certain provisions of the temporary legislation which were designed in favour of the bona fide debtor are incorporated in the present Bill. Section 7, for instance, retains the increase to £15 in the value of household goods which must be left with the debtor. The figure in the past was £5, and, on representations from Deputies when the temporary Bill was going through, that amount was raised to £15. It is considered advisable to retain that sum.
Section 20 of the present Bill gives the Court power to stay execution and to order payment by instalments. That is an extensive and useful power. If a judgment debtor comes in good faith and puts his circumstances honestly before the court, there is no reason under that section why he should ever be ordered to pay anything which he is not in fact in a position to pay. If he puts his circumstances before the Court and manifests a genuine desire and intention to pay over a period according to his financial position, it is open to the Court while granting a decree to make an order staying execution and making provision for payment by instalments.
There is, perhaps, one section of the Bill on which I should comment. It is Section 13:—
No action shall lie against any under-sheriff for or on account of his having taken in execution under any execution order, any goods, animals, or other chattels found in the house or other place of residence or on the lands of the debtor and claimed or alleged (whether such claim or allegation does or does not prove to have been well-founded), to be the property of the wife or husband of the debtor, or to be the property of any parent or child of the debtor for the time being residing in the house or other place of residence of the debtor, and, in lieu of such action against the under-sheriff, the person to whom such goods, animals, or other chattels so taken in execution in fact belonged shall (if such goods, animals, or other chattels, should prove not to have been the property of the debtor) be entitled to recover from the debtor by action the value of such goods, animals, and other chattels, together with such damages as such person shall have suffered by reason of such goods, animals, or other chattels having been so taken in execution.
There has been comment on the proposal to incorporate that section in the permanent legislation, and I should like to say just a few words in its defence. For one thing, it has been operative law now for three years, and while I receive a great many complaints from a great many people about hardships arising, or alleged to arise under administration, I have never received a single complaint arising under that section of the existing Act—not one. While I do not want to urge it unduly, I suggest to Deputies that if, in fact, there has been hardship—if, in fact, there have been any good grounds of complaint—complaint would reach us, because complaint reaches us even when the grounds are not particularly good. But no single case has been brought to my notice where the discretion of the under-sheriff under the provisions of the existing legislation has led to hardship.
When the temporary Act was passed a special circular was issued to the under-sheriffs as to the spirit in which that particular section should be used and administered. They were told that the section does not mean that they were empowered to seize, or that they ought to seize, the goods of any person other than the judgment debtor's; that the spirit of the section was that, where they were satisfied, where they themselves were convinced that the third-party claim advanced in a particular case was a bogus claim, they should feel free to go ahead.
Deputies really ought to consider very carefully whether this is not eminently a matter which can only be satisfactorily dealt with by leaving it to the discretion of the under-sheriff to make his own decision in a particular case. The alternative to that is that, after your court machinery has worked, after your judge has given his time and thought to the hearing of a particular case, the machinery of your courts can simply be reduced to impotence and ridicule by the bogus third-party claim. "Do not touch that, that belongs to herself; such a thing belongs to my eldest son; that was given to my daughter by an uncle.""Then what property in the house is yours?""Nothing; I own nothing in this house; everything in the house belongs to some one or other member of my family." You cannot meet that claim; you cannot rebut it. It is impossible to prove the ownership of a particular chattel in the house of a judgment debtor; it is impossible to disprove the assertion that a particular piece of property in the house belongs to someone other than the judgment debtor. That is the position that you are faced with: choosing between leaving it open to the decrees of your court to be defied and set at naught by the simple expedient of advancing a third-party claim to the property that the under-sheriff casts his eye on, or leaving a certain administrative discretion to the under-sheriff, so that he will feel free to proceed in any case where he is satisfied that the third-party claim is simply bogus and designed to evade and defy the orders of the court.
When the temporary legislation was before the Dáil we had very considerable discussion on that section, and the Deputies opposing the granting of such a power and discretion as that to the under-sheriff drew a very gloomy picture indeed of the consequences that would follow if the law stood as it was proposed to have it. We were told that under-sheriffs would run amok, would seize property belonging to anyone and everyone except the judgment debtor. We were told that the power would be abused. The reply to the suggestion that the bogus third-party claim simply enabled the courts to be successfully defied and reduced to impotence was, that bad as that state of affairs was, the granting of this power and this discretion to the under-sheriff would be infinitely worse.
Now what is the position? For three years the under-sheriff has been vested with this discretion, and in no single case has a complaint reached me, or any official of my Department, of abuse or excess by under-sheriffs in the exercise of that power. Therefore, after mature reflection, I decided, when this permanent Bill was being drafted for the consideration of Deputies, to include this section. I believe that it should be included, and I believe that the alternative to its inclusion is simply to re-open the possibility of wholesale defiance and evasion of the orders of your courts. Under the Temporary Acts, considerable progress has been made in bringing the number of unexecuted decrees in the country down to something approaching a reasonable figure. On the 31st March, 1924, there were, in the hands of the under-sheriffs, unexecuted judgments to the number of 7,022, representing a money value of £157,043. On the 31st January of this year the position was that there were 3,434 unexecuted judgments in the offices of the under-sheriffs, representing a sum of £69,910. That, of course, is not quite a normal position, but it represents a very considerable reduction on the state of affairs that existed two years ago. The number of unexecuted judgments in the hands of the under-sheriffs at the moment is not quite current work; there is still there a certain proportion of arrears, but we are almost down to current work because decrees come into the hands of the under-sheriffs at the rate of about two thousand per month, and the figure of 3,434 unexecuted decrees on hands is not very alarming.
If the court orders are to be executed automatically as they should be, and if the judgment creditor is to get the benefit of the decision of the courts, then I feel it is necessary to provide that that decision cannot be set aside simply by the advancement of the third-party claim—the third-party claim which no under-sheriff could hope to disprove. The mere assertion of it stays his hand. You cannot expect to be able to get officials who will be capable of disproving a claim of that kind. He has an order of the court that he is to seize for a debt to the amount of X pounds. He goes to the house of the judgment debtor and, surveying the property, decides: "Well, I will take this article." He is met with the answer: "Oh, but that is not mine, that belongs to my wife. It is her separate property." Well, then he says: "I will take this." He is told that is somebody else's, and so on. No under-sheriff could disprove that claim. He must simply stay his hand automatically once the claim is made. He could not enter into a discussion there and sift the genuineness or the validity of the claim. By what process could he hope to arrive at any result?
In the past, where the bogus third-party claim was an effective bar to the action of the under-sheriff, a great many of the decrees of the courts were so much waste paper. Deputies have to decide whether that is a desirable state of affairs or not, and whether it is not better to do as I propose to them to do, to vest an official of your courts —the under-sheriff—with discretion so that in a case where he believes the third-party claim is an utterly bogus claim, he will be free to proceed without the threat, which was the position in the past, of an action—a personal liability—if by any chance he should make a mistake. No under-sheriff will proceed to make a seizure of property with that prospect hanging over him: that if, by any chance the judgment debtor, or any other person, is able to establish that the particular property which he seized was not the personal property of the judgment debtor he would be liable for an action. An official ought not to be liable personally for an action in the bona fide discharge of his duty. The situation which obtained in the past simply brought about the position that once a third-party claim was brought forward the under-sheriff went away and returned to the judgment creditor nulla bona— that there were no goods there that he could seize, and why? Because every article of property in the house was claimed by some member of the family other than the judgment debtor. That is the reply to the criticisms of this section. The alternative to its incorporation in the Bill is simply to leave it open to every fraudulent judgment debtor in the country to arrange with the members of his family that each of them will claim as his or her personal property every article in the house which the under-sheriff sets his eye on. Deputies must take their choice, and if Deputies strike out that section from the Bill then there must be no complaint in the future from any quarter that the execution of the orders of the courts is not proceeding as efficiently or as satisfactorily as it ought to proceed. I warn Deputies solemnly that if that section is deleted from the Bill many and many a decree of the courts will go into the wastepaper basket, and many and many a judgment creditor, after he has gone through all the legal processes and paid his lawyer's fees, will find that he has in his hands a worthless scrap of paper. I put it to the good sense of Deputies, to the responsibility of Deputies, that that is not a desirable position. It is not going to make for the credit of the country generally, or for that better commercial atmosphere which we all hope to secure. If the writ of the court does not run freely throughout the area of the State, then you will have an unfavourable commercial and economic condition. For one thing, people will not lend, people will not give credit if they do not feel that the means of redress are there for them: if they do not feel that when and if they have to have recourse to the courts, the judgment of the Courts is going to be worth something to them.
On examining the merits of the case, I had no hesitation whatever in deciding to ask Deputies to accept this section as part and parcel of the permanent law of the State. The alternative is not one that is attractive. It is simply putting a premium on dishonesty, a premium on fraudulent bogus third-party claims, to say that wherever any such claim is advanced the under-sheriff must stay his hand or go ahead at the risk of an action where he himself would be personally liable for damages. I do not think that there is any other section of the Bill I want to comment particularly on. I move the Second Reading.