ENFORCEMENT OF COURT ORDERS BILL, 1926—THIRD STAGE.

The Dáil went into Committee.
Sections 1 and 2 put and agreed to.
SECTION 3.

I move:—

In page 3 before sub-section (6) to insert a new sub-section as follows:—

"(6) For the purpose of giving effect to the foregoing sub-section but no further or otherwise, every reference contained in Section 6 of the Judgment Mortgage (Ireland) Act, 1850, to Her Majesty's Superior Courts at Dublin shall be construed as including a reference to the Circuit Court whether sitting at Dublin or elsewhere, and the Circuit Court shall be a superior Court within the meaning of the said Section 6, and that section shall have effect accordingly."

The purpose of this amendment is to provide the necessary machinery for registration of judgments of the Circuit Court.

Amendment put and agreed to.
Section 3, as amended, put and agreed to.
SECTION 4.
(1) Every under-sheriff shall, subject to the approval of the Minister, appoint such number of persons (who shall be styled and are hereinafter referred to as court messengers) as the Minister shall sanction to act for him and otherwise assist him in the execution of execution orders under this Act.
(2) Any court messenger may, if the Minister so directs and the Minister for Finance so consents, be paid out of moneys provided by the Oireachtas such salary as the Minister, with the sanction of the Minister for Finance, shall determine.
(3) Every court messenger shall hold his office at the will of the Minister and may be removed from office by the Minister at the request of the under-sheriff or on his own motion.
(4) Every under-sheriff shall cause a correct list of the names and places of residence of the persons for the time being holding the office of court messenger in his bailiwick to be kept posted in his office and in every court-house in his bailiwick.

Would the Minister inform us whether there will be any alteration or reduction in the fees charged by the sheriff's officer, or the court messenger, as he may be in this particular case? Certain fees are charged at the moment for performing certain duties, and in view of the fact that these men will be salaried officials is it intended to maintain the same standard of fees?

I could not give the Deputy a very definite answer on this at the moment. There may be changes, but he can take it that substantially the rate will be the same. The disappearance of the under-sheriff will probably mean that a somewhat higher rate will be paid to the court messenger than what is now paid to the bailiffs, and we hope to get a better type of man. I do not think that there will be any appreciable change in the fees.

Would the Minister undertake to look into that? We are anxious to get reductions, if we possibly can, in legal charges, and if we are to pay on the one hand through taxes for these new officials and then pay the existing court charges it will increase the cost somewhat. However, this is a point that the Minister might look into.

Sections 4, 5 and 6 put and agreed to.
SECTION 7.
The necessary wearing apparel and bedding of a person against whom an execution shall be levied, and the necessary wearing apparel and bedding of his family, and the tools and implements of his trade, not exceeding in the whole the value of fifteen pounds, shall be exempt from liability to seizure.

I move:—

In line 13 to delete the word "fifteen" and substitute the words "twenty-five."

The figures have reference to the value of the property of the debtor or his family which may be left to him after the bailiff has had his way. The last Bill dealing with this matter raised the exempted limit to £15 worth, and I seek to raise it still further. I want to call the attention of the Dáil to the real effect of the section as it stands:

"The necessary wearing apparel and bedding of a person against whom an execution shall be levied, and the necessary wearing apparel and bedding of his family, and the tools and implements of his trade not exceeding in the whole the value of fifteen pounds, shall be exempt from liability to seizure."

I want to argue that the limit is entirely too low when we set it at £15. We are dealing here not merely with the property, the wearing apparel, and the bedding of the debtor, but specifically the wearing apparel and bedding of his family, however large they may be, or how grown-up they may be, and also the tools and implements of such a person's trade, and the whole of the amount that the bailiff is obliged to leave behind is £15. If you deprive a man of his means of earning a living, as it would be in many cases when you touch his implements of trade and tools, you are depriving him of his livelihood altogether, and I think that the limit of £25 is much more reasonable than the limit of £15.

The Deputy has created a scale of reasonableness which is all his own. I would have no doubt that he would consider a limit of £50 much more reasonable than a limit of £25. But for the moment he asks for a limit of £25. I draw the attention of Deputies to the history of the present sum, and how it came to be arrived at. When the Enforcement of Law Act of 1923 was under consideration by the Dáil, Deputy Gavan Duffy and Deputy Johnson raised the point that the £5 limit, which had been statutory up to then, was somewhat small, in view of the decrease in the value of money and the increase in the cost of living, and it was trebled in that Act. I see no reason whatever why there should be a further advance to the sum of £25, and I consider that a debtor owing £6 or £7 and owning property up to the amount of £25 ought to be made meet his liabilities. I think that, in fact, to fix a sum of £25 would mean that quite a number of people who ought to pay their debts and who have no real excuse for non-payment of their debts would evade payment. I do not propose to accept the amendment.

I want to suggest to the Minister that inasmuch as this is his Bill and that as he has fixed the sum of £15 in it, it is for him to justify why he should fix £15, why he should make any exemption at all. I assume that there is a reason for a limit of exemption, and that on that assumption the Minister fixed £15. I would like the Minister to detail the values of articles which might be considered necessary to be kept by a family if there are to be any exemptions at all, and I ask him to imagine not merely a family of father, mother, and one child but, say, father, mother, and six or seven children, and detail what amount of clothing and bedding, plus tools, if there are any, can be purchased for £15. Inasmuch as the Minister has fathered this provision of exemption, there are, presumably, some reasons why there should be an exemption, probably reasons of decency. You cannot be expected to take the clothes off a man's back, unless they are valued at more than £15, or the clothes of the children, or the boots, shoes and bedding. But I ask the Minister to make some statement as to what the value of these things will be. Presumably if there are seven children whose combined wearing apparel, clothing and tools were worth £15, and there is an eighth child which has some clothing, the bailiff would be entitled to strip the eighth child. That, the Minister will say, is fantastic and foolish, but surely the Minister has some justification for making an exemption and, having that justification, I want to know how he arrived at the £15 worth.

The reasons are the reasons which the Deputy advanced two years ago for that sum, with just this modification, that they do not apply now to the same extent and with just the same force, inasmuch as I think I am right in stating there has been some slight fall in the cost of living. The Deputy was quite right in anticipating the adjectives that I would apply to his argument—"fantastic and foolish." The Deputy knows that in fact the eighth child has never been and will never be stripped by an under-sheriff, in the suspicion that the apparel it has on makes the "little more and how much it is" above the £15. In practice he knows that the £15 in the Bill is a nominal sum and that the under-sheriff will not usually go within five or seven, or even ten pounds of that. He knows, also, that to fix a statutory sum in the Bill of £25 would mean, in practice, that a person could and would usually be enabled to hold on to anything up to £30 or £40 worth of property, and contest with the under-sheriff that that was really only a good £25 worth. He knows perfectly well that I could not, and that I should not, accept his amendment.

Amendment put and declared lost.
Question—"That Section 7 stand part of the Bill"—put and agreed to.
Section 8 agreed to.
SECTION 9 (1).
(1) Any under-sheriff who takes goods, animals, or other chattels in execution under any execution order may sell such goods, animals and chattels by public auction at such place or places, whether within or outside his bailiwick, in which in his opinion such goods, animals and chattels can be sold to the best advantage, and may remove such goods, animals and chattels or any of them or cause same to be removed from the place where same were seized to such place or places of sale.

On behalf of Deputy Davin I move amendment 3:

In sub-section (1), line 26, after the word "bailiwick" to insert the words "but not outside Ireland."

The question of the desirability of allowing a sheriff to send goods for sale outside the country was discussed before. I think there was an excuse given, or an attempt for justification made, that certain classes of goods might sell at better prices in England, but I think there can be no real justification for sending goods outside the country where there can be no check of any kind upon the value received or the real genuineness of the effort made to get a satisfactory price without putting the debtor to a great deal of expense. I think it should appeal to the House that there must be a limit to the area beyond which sales may be made. I ask that the area should be the limits of the four seas of Ireland.

I think Deputy Davin must have made a last-minute discovery about his amendment which he has left to Deputy Johnson, in good faith, to move. Amendments 3 and 4 in the name of Deputy Davin are grounded on a misapprehension with regard to Section 9. They are based on an erroneous construction of that article. It is quite clear that the Deputy who put down the amendment thought that the section empowered the under-sheriff to sell in England, or such other place as he may think fit. Now, I am quite clear that the section has no such effect: that the under-sheriff is confined to the area of jurisdiction of the State under Section 9 of the Bill, and I have been so advised. The Deputy's amendments, 3 and 4, on that basis are unnecessary, and I think that they ought to be withdrawn.

With that assurance, that there is no implication that these goods may be sent out of the country, I certainly will withdraw both amendments.

Of course legislation which we pass here is confined to our territorial jurisdiction, and to say that an under-sheriff may sell outside his bailiwick does not mean that he may sell outside the area of jurisdiction of the State. It simply means that he may sell elsewhere within the State than his own particular bailiwick.

Would there be any fault attachable to the bailiff if he did send outside the country?

There would.

If there is no doubt on that, I am satisfied to withdraw the amendment.

Amendment 3, by leave, withdrawn.
Amendment 4 not moved.
Question—"That Section 9 stand part of the Bill"—put and agreed to.
Sections 10, 11 and 12 agreed to.
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.

I move amendment 5:—

To delete the section.

This section caused a good deal of discussion both on the occasion of the last Bill, and since the introduction of this Bill. The proposal to delete it altogether is put down in the hope that the House will agree that the principle of the section is bad, and also in the hope, if the Minister persuades the House that steps are required to be taken to prevent fraudulent transfer for the purpose of evading the court orders, that the onus of producing a proposal, within reason and not outside reason, such as this is, will be upon him, and that he will search his mind and the experience of other countries to find some other means than this. The proposal of the section is that the creditor would be free to go into a house or farm, take possession and seize goods irrespective of who were the owners of the goods in the house: that is to say, that no action should lie against the under-sheriff if he takes the property of the wife or husband, father or mother, son or daughter of the debtor. The Minister contended in his speech on the Second Reading of this Bill, as he did on the last occasion when the Enforcement of Law (Occasional Powers) Bill was brought forward, that he had no complaints of any kind since that enactment was made. Whether he has had complaints or not does not, I think, justify him in reintroducing this as a permanent provision. There was the contention made on the previous occasion that the Bill was to meet an exceptional condition of affairs: that there were so many thousands of decrees in the hands of the sheriffs, and that the whole condition of the country was such as to require to give them exceptional powers. The House, apparently, was satisfied that the exceptional powers were required in those circumstances. Now we are asked to embody in the permanent law this provision which, I think, is reversing the whole course of legislation in respect of such matters and is making a relative responsible for the payment of the debts of a debtor.

If a man has a judgment issued against him, and if he has his son or daughter living with him and owning some of the property in the house, the bailiff may seize the property of the son or daughter no matter how convinced he may be of the justification of the claim that the property belongs to the son or daughter, and no action will lie against the bailiff for having taken the wrong goods. But what is almost worse, I think, is that if the son or the daughter has a decree issued against him or her, the property of the father or the mother can be taken without any action lying against the sheriff. The effect of that is, or may be, that any son or daughter who may live in the house of his or her father or mother which contains a good deal of valuable furniture, let us say, and who would appear to be entitled to get credit, the shopkeeper would be justified in giving that young man or woman credit to such an amount as he thinks he would be able to collect from the father or mother, and the only security that a father or mother would have would be that they can collect from their son or daughter. I think that is a most indefensible proposition. Young men are fond of motor cars to-day, and though they may not have any money they may be able to persuade a dealer in motor cars that he has a good mark because the father is pretty well provided with this world's goods: the young man can be encouraged to go into debt, the father will have to pay and no action will lie against the under-sheriff for seizing the father's furniture. I think that is indefensible.

I had brought to my notice this morning a case where a man had a visit from certain undesirable persons, to wit, bailiffs, some little time ago, for a small debt about which he knew nothing, which his son had incurred. The bailiffs took possession and remained in the house for two days. The son had no means, no money, and no property. He had no means of paying any debt at that time. He had hopes and expectations that when he got employment he would pay, as he had been paying, by instalments. When he got employment he would continue to pay. The bailiffs went into his father's house about something as to which the father knew nothing. They remained there for about two days. Solicitors were taken into consultation, and it was found that the solicitors knew nothing about this particular provision of the Act. They proceeded on the assumption that the old law still continued. They drew up declarations asserting as to who the property belonged to, and finally, though the bailiffs were persuaded not to distrain, they could not be got out of the house until their fees had been paid by the father. The position of the citizen in those circumstances is a most insecure one, and the effect is, or would be, if it were allowed to continue, that relationships are going to be very much more strained between father and son, brother and sister, son and daughter, than ever they have been, and that there is going to be a great deal of hesitation about allowing grown-up sons to live with their parents because of the liability that a son, who has attained his majority, may be allowed to enter contracts and that the creditor can come upon the father for any judgments he may get in the courts.

Moneylenders are not going to be very careful about the standing of the son if they are satisfied with the ability of the father to pay. I think the whole principle of this section is wrong, apart from that particular application of it. The tendency of legislation has been to give married women a right to their own property. This provision annuls, in a large degree, those particular Acts. On the discussion of this question on the last Bill of 1924 the Minister appeared to recognise that there would be occasional injustice done, but, he thought, for the better collection of debts, that it might be worth while doing injustice to 3 per cent. If 97 per cent. of the debts could be collected, then the other 3 per cent. of injustice would not matter very much. I dissented then, as I dissent now, from the principle that injustice should be done to the small minority, even to ensure the collection of debts or the enforcement of court orders in respect of people who had taken trade risks and found that the risks were not good ones. The Minister, on that occasion when the matter was under discussion in the Dáil, said he would be prepared to consider the possibility of State compensation in the event of its being clearly established that, in fact, wrong had been done and loss had been suffered by a deserving third party. The Minister found it not possible to put that in the Bill, but he said in the Seanad, when making a provision in the Bill, that if he was satisfied that, by the bona fide operations of the law, hardships were inflicted on any individual, he would be willing to consider the matter ofex gratia payments and make recommendations to the Minister for Finance.

While that may be very good for the individual who may suffer, I think it would be a very unsatisfactory method of meeting a kind of thing which appears to be inevitable as a consequence of this kind of legislation. To legislate in such a way, with the expectation that injustice is going to be done to some, that hardship will be inflicted, and that if such hardship seems to bear heavily on some individual that the Minister will make a recommendation to the Minister for Finance and that the Minister for Finance may, if he thinks fit, make anex gratia payment, is not a good justification for embodying a provision of this kind in an Act of the Oireachtas, and I ask the Dáil to agree to the deletion of this section and to express the view that it is not right that the relative who lives in the house of the debtor and has property in that house should be liable to have his property distrained upon and sold. The effect of it is, there is no protection for any householder, and incidentally also for the owner of a farm or other property, but it seems to be directed particularly against householders and house property. I hope that the House will not agree to that provision and will throw upon the Minister the onus of finding some other way and protecting the creditor against fraud on the part of the debtor.

What we have heard from the Deputy is, of course, very similar, if not identical with what we heard with regard to this particular section in the temporary legislation, and what I will have to say in reply will, of course, necessarily bear a resemblance to the case which I made for this section before when the temporary legislation was before the House. The Deputy objects to the permanence of this proposal. He said that perhaps a proposal of the kind was not so entirely out of place in temporary emergency measures that were brought in before the House on the basis that there existed a very abnormal situation in the country but that this Bill embodies permanent proposals for the execution of the orders and decrees of the new courts and that it is wrong to have such a section as this Section 13 in permanent legislation. I put it to the Deputies that the problem with which this section purports to deal is not of a temporary or transient nature, that it is a permanent problem based not so much on any passing phase in the country's development but on rather universal experience of human nature. As long as you have a state of affairs where particular property can be saved from seizure by the simple expedient of some member of the household, other than the judgment debtor, saying "that is mine" then the temptation to lie and put forward a bogus claim is so great that it will happen in the majority of cases. That was the position in the past when the simple expedient of a third party claim was enough to send the under-sheriff and his men out of the house. I think that is utterly wrong.

The Deputy talks about wrong principles. Does he consider it a right principle that, by a little straining of conscience, by a lie which it is impossible to disprove, the decree of the courts can be made waste paper and a messenger of the court a figure of fun? If we are swapping right principles and wrong principles let us analyse that. How is the under-sheriff to disprove a plea of that kind, to disprove this third party claim? How is he going to do it in the case of a particular mahogany table, let us say? How is he to prove a chest-of-drawers is not the property of some member of the household other than the judgment debtor, that the wife did not get it from her uncle or the daughter from her cousin or a friend? It is easy to ring the changes and be academically wise about the impropriety of legislation such as this. But we are living in a world of facts, have to deal with them as we know them, and legislation must bear some relation to them. If we are to split hairs and spin circles about how undesirable it is to have a provision like this in permanent legislation, there should be some attempt to put forward a constructive alternative as to how otherwise the bogus third party claim, by the member of the family, is to be met.

No sheriff in the past went ahead faced with such a claim. He went home and returnednulla bona to the judgment creditor. Is that to continue indefinitely? Are we to perpetuate that farce in our legislation? I have aimed, and will aim, at bringing forward legislation here that will be part and parcel of our permanent machinery of justice, not merely to secure that things will be done in certain respects as well as they were done in the past, but to secure that they will be done better, not merely to secure that the writ will run as freely in every square mile of our jurisdiction as it ran in the times that were called normal in 1910, 1911 and 1912, but to secure that, there can be no doubt or uncertainty, but once a man has his cause heard before the Courts and gets his decree that decree is going to become effective. Would we be securing that if we were to perpetuate that sham that existed, so we are told, in the past, that a simple statement to the bailiff “be off about your business; that belongs to me; I got it from my uncle; do not dare lay a hand on it” is going to be an effective answer to the judge's decree. You say he could rebut such. How could he do it? Let any Deputy put himself in the position of an under-sheriff, faced with such a claim in respect of furniture. How would he set about disproving it? He would not get evidence. If ever there was a problem which called simply for the granting to a level-headed, responsible officer of administrative discretion it is this very problem of the bogus third-party claim, or rather the task of deciding whether or not a particular third-party claim is bogus.

If the under-sheriff believes it is not bogus, I think he will not proceed. Lest there should be any doubt about it, the amendment makes it clear that there is no right given to the judgment creditor to have property seized that is not the property of the judgment debtor. I had not very much doubt about that, but the question has arisen, and so that no under-sheriff might be put in the position of having to contest a testcase in the matter, Amendment 7 is put down. It is not a question of giving to the judgment creditor the right to have some property seized in a house that is not the property of the judgment-creditor. That is not the position. We are saying that this third-party claim constitutes a problem so really difficult and permanent that you have not a better course than simply to see that your under-sheriff must do his best, and must exercise his discretion, and that if he exercises his discretion honestly and in good faith he shall not be liable to action. The Deputy told us that is a wrong principle. He should have spent more time in telling us what the right principle is. Is it a right principle to lie to prevent seizure of property in a household for lawful debt? Does the Deputy think if you create and perpetuate such a situation by your legislation, that the lie will not be forthcoming? Of course it will.

Have there been any distraints in Ireland in the past if it is so easy to deceive the sheriff's officer?

There were restraints and there werenulla bonas. as the Deputy knows. There will be, I hope, more distraints and less nulla bonas in the future, and there will be a higher and stricter standard of justice than there was in the past. There is that at the moment, but there is going to be that in increasing measure. To achieve that end I do not boggle because of Press ramp, or because of certain academic objections on the part of any Deputy to writing into the Bill a section such as this which I know to be right and to be an improvement on the other position. I know that Deputies who desire to see smooth and effective administration of this country will not boggle at it either. A wrong principle Deputy Johnson says! I say it is a less wrong principle than the other, and I say I have not been able to find the ideal, because, as Deputy Magennis told us the other day in another context, it does not exist. This Bill, and every other Bill, will have the imperfection of having emanated from a human institution and of being only the product of human brains derived from human experience. It, therefore, will not be in this section or perhaps in any other section an ideal Bill. It is a Bill to deal with realities, and to deal with the situation which I know to exist, which every under-sheriff knows to exist, and which every Deputy here knows to exist. Deputies can choose between perpetuating the farce and the fraud of the simple device of saying “I own nothing in this house. Everything in it belongs to my wife, or daughter, or eldest son, or Uncle James,” or vesting in the under-sheriff the discretion to proceed when he believes the third-party claim advanced to be bogus. Amendment 7 had better be glanced at in this connection, that it is designed to make it clear that it is not obligatory on the under-sheriff to exercise the powers vested in him; in other words, to make it clear that it is a matter of administrative discretion, and that no right is given to the judgment creditor to have property seized other than that which is clearly the property of the judgment debtor. The section was designed to give discretion to the under-sheriff to achieve that purpose. To avoid doubt and so that the under-sheriff may be relieved of the necessity of fighting any test action on the point we are inserting this additional sub-section. Deputy Johnson and myself have covered old ground. This particular fight was fought out before on the previous Bill. The problem with which we have to deal is static and permanent. It is always there and will be always there. If you leave the third-party claim stand it will be there in answer to the decree. I do not want to write any fraud of that kind into our legislation. If the method adopted in Section 13 with the additional sub-section that stands in Deputy Duggan's name is not a perfect method of dealing with the question it is only because we have been unable to devise a perfect measure. If any Deputy has I hope he will put it forward.

Since the Bill was before the House on a previous occasion I have taken the opportunity of getting, as far as one could in the time, the views of the commercial community on this measure. I can say with authority that there is no section in the Bill which is looked upon by the commercial community as of greater importance than the section under consideration. These bogus third-party claims by relatives and others were carried to such an extent in the past that creditors in many cases gave up the idea of trying to collect their debts. The result of that, as I pointed out on a previous occasion, was to affect seriously the credit of the country, and the moment you start to affect the credit of any State you affect its most sacred possession. What went on in the past with regard to the evasion of just debts was little more than legalised robbery. We are told that the Bill which seeks to stop that practice is wrong in principle. I do not know of anything that is more likely to demoralise the community than to allow that practice to be carried on. I look on this section as one of the most important in the Bill, and I hope the Minister will stand over it.

I think the answer to Deputy Good's argument is that no trader is compelled to give credit, and that he might reasonably insist on doing business on a cash basis. It has been a serious misfortune to this country in the past that too long credit has been given without regard to the position of the debtor. When the Minister was speaking I could not help feeling thankful that he, as a Minister of the Saorstát and a contemporary of ours, did not live in the days of the Old Testament, because if the Minister had been Moses he would have had the Ten Commandments handed down to us with the most drastic enforcement clauses. Imagine the prodigal son, having returned to his father, being pursued by creditors who proceed to seize the fatted calf—not the fatted calf, for that was out of his reach, but the fatted calf's mother. Seriously, is it desirable to make it impossible for a young man who has been foolish and run into debt, to go home to his father, and to make it necessary for him to go to his uncle or some other relation because he is afraid of having his father's goods seized? He can go to anybody except to his father or mother under this section. I will take another and more likely case, that of the prodigal father. Take the idle father who does little or no work, and who has a hardworking daughter who has set up to teach music and dancing, and possibly has had to borrow money to buy a piano for the purpose of her training. That piano is worth more than £15, and if she is living with her father that piano will be seized, and under the section she would be deprived of making an honest living because of her father's debts. That is repugnant to common humanity.

The Minister asks us to put up an alternative. The best alternative I can see is a declaration of ownership on oath before a Commissioner of Oaths or a Peace Commissioner. That seems to be a reasonable safeguard. The Minister says that there are many people who will lie. Does he consider there are many who commit perjury on a matter of this kind? Does he think there is a sufficient number to make it worth while legislating for it? If so, why leave an enormous loophole in the section? If they are prepared to lie or commit perjury surely they are prepared to get a brother or sister to declare the properties theirs? It would be perfectly easy for persons under this section if they intended to be fraudulent to evade the section altogether. It might inflict hardship in certain cases, but the really dishonest person would still be able to get out of it. The Minister has asked us to rely on the discretion of the sub-sheriff and not on the discretion of the courts, for appeal to the courts is removed, and yet in another Bill we are to consider the abolition of sub-sheriffs and placing their duties on registrars in all new cases. I must say I would prefer the discretion of the courts. I do think that we should proceed very carefully in this matter. I hope the Minister will give some indication that this section is not as the law of the Medes and Persians. I hope he will try and insert some provision that will prevent undue hardship and give some kind of appeal from the decision of the sub-sheriff, which, in fact, means the decision of one of the sub-sheriff's officials.

I desire to support Deputy Johnson's amendment to delete Section 13. The Minister for Justice made a very special and very insidious plea—something, in fact, to sweep us off our feet if we did not apply first principles against his argument. The primary consideration appears to me to be the conservation of property, and that in an inviolable way, against third parties. Why must a father be held responsible for the debt of his son when that son is over age? Why should his property be liable in any way to be seized? I fail to get an answer. Similarly, I fail to see why a son must be held accountable for his father's debts. Look at the section:

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...

Here comes the relevant passage:

(whether such claim or allegation does or does not prove to have been well-founded).

Deputy Duggan is moving an amendment by which he seeks to add at the end of the section a new sub-section indicating that "The foregoing sub-section shall not operate to make it obligatory on any under-sheriff to take in execution under any execution order any such goods, animals or other chattels as are referred to in that sub-section."

While it is not obligatory on any under-sheriff to take goods in execution I submit that as a man of the world he will, having gone to the place of abode or the residence of the debtor, take goods. He will not go home empty-handed; that is not in human nature. The natural course is that he will take away goods and there will be no action in law against him. You are putting the man who does not happen to be the debtor but who happens to live with the debtor and is either in ascending or descending degree related to him, at the absolute mercy of the under-sheriff. There are many degrees of dependency, but to be placed at the mercy of any man is about the worst possible.

Even if the under-sheriff is conscious that the goods are lawfully the property of the debtor's father or the debtor's son, he still can take them. You are actually conniving at this man committing a felony, taking property which he knows he has no right whatsoever to take. You debar the injured person from obtaining any redress in law against the offending party. You give him a remedy which is more fictitious than real—an opportunity to appeal against the debtor, who may be a man of straw. That is scarcely a fair proposition. Over and above there exists the great principle of the right of a man to hold his property inviolate against the world when there is no debt.

I find it difficult to consent to any stringency in the law relating to debts. If we delete this section—I trust the Dáil will do so—we leave things as they are. Poverty is such throughout the country that instead of granting extraordinary powers for the collection of debts, the Dáil might—and there is a strong, well-founded claim—grant temporary alleviation. It is a very serious thing to claim, but conditions might be such as would demand a moratorium. We have to face these things. This is one of the problems that we cannot shut our eyes to.

Deputy Cooper dealt with questions of credit. I presume it is the business of every shopkeeper to exercise due discretion in the matter of credit. They advanced credit in the past without having any remedy for debt recovery such as is now sought. I fail to see, in the midst of public distress, why we should give increased facilities for the collection of debt. I submit that men should make sure of the persons they advance credit to. People should exercise discretion in business of that sort.

Deputy Good refers to bogus third-party claims by relatives and others. I would like the Deputy to amplify the phrase "by relatives and others." I must confess I am at a loss to explain it. He said also that those third-party claims were a form of legalised robbery in the past. Does the Deputy believe that a section like this would stand any chance of getting through the British House of Commons? I am of opinion it would not. If it could not get through the House of Commons why should it be passed here? We are supposed not to take a headline from Britain; but even from reputed enemies we sometimes can learn something. I assume that the British House of Commons would not give this extraordinary power without having a valid reason for so doing. I hold that they recognise how inequitable such a procedure is and, recognising it, they would repudiate it. The Deputy knows there never would be a chance of getting such a section through the House of Commons. If such a thing were fit and proper, is it not extraordinary that down through the centuries it was never put into operation? The Dáil would be well advised to turn down this section.

I think the Minister for Justice has made a very good case for the retention of this section. In the past—and even at present—a similar state of affairs exists—there is no doubt a great deal of bogus work went on in regard to the claiming of goods by different members of a family in the case of a seizure. I recognise that there are cases in which a great deal of hardship is caused. This Bill deals with all classes of the community, rich and poor alike. It very often happens that women who have a certain amount of money marry men who are extravagant and thriftless.

And foolish.

The parents of such people endeavour to secure for their children that the property shall be made as safe as is possible under the circumstances. In such cases, if they are wise, they schedule a list of the belongings of the wife on the occasion of the marriage and put them in the hands of trustees. In the case of seizure after the marriage by a bailiff in connection with a debt of the husband, if the wife produces a scheduled list clearly identifying articles and signed by the trustees before her marriage, that ought to be sufficient to justify her claim to the property. There is no doubt that the removal of articles in the way they probably would be removed in the case of a seizure would have a very detrimental effect on the value of the articles. In some cases the articles might be of very great value. I think in a case where there is clear identification and where it can be proved that the goods belong to the woman, and the husband had nothing to do with them, it should not be open to the sheriff to take them. I presume this clause is absolutely necessary because of the bogus claims that have been and are being made, and I think the aspect of the case I have referred to ought to be considered.

I am quite prepared to agree that Section 13, touching on the collection of debts, is fairly revolutionary. Deputies who have spoken in support of Deputy Johnson's amendment ignore some very important facts. If that section were to operate under the legal state of affairs that existed in the past, there would be some difficulty in justifying the radical change. For instance, up to comparatively recently, the sub-sheriff was more or less an irresponsible person with no permanence of office, elected by a high-sheriff, who was a man of no legal training. To give a person appointed to an office created in that way indiscriminate power to seize goods and chattels would, I think, be wrong. In the past the under-sheriff recognised that he had a monetary responsibility in connection with any action he took in seizing goods on a judgement summons. What actually happened was the bailiffs, who were his employees, were paid a commission. The easiest way for the sub-sheriff and the bailiffs, on any notification by the debtor that the property did not belong to him, was to accept that and go away without seizing the property. Under the new order that is about to be established, the bailiff now becomes a court messenger, with all the responsibilities in connection with the discharge of his duties that attach to a permanent official. Likewise, the sub-sheriff becomes a permanent official, acting under the court. Is it not reasonable to say that the court will see that its machinery is not used indiscriminately to seize people's property for debts for which they are not responsible? The danger of that is minimised. In executing a judgment, the successor of the under-sheriff is bound to use his discretion in a case where a claim is made bona-fide that the goods are not the property of the debtor.

The officer will be responsible to the court for the discharge of his duties in a reasonable manner. All this section does is to take away the personal responsibility of the under-sheriff so far as liability for actions is concerned. It still invests him with responsibility for discharging his office reasonably. He and his officers are not going to put themselves in the position of having actions taken by people who have had their goods improperly seized. If that were the effect of this section, it would not hold very long. I do not think public opinion would stand for that, and, after all, we are bringing public opinion to bear on the operation of the courts of justice in a way it has never been brought before in this country. The remedy is there. For instance, the case has been made that a girl living in the house of her parents might have her piano seized on account of a debt by her parents, although she was earning her livelihood by the piano. Action of that sort would leave the officer open to considerable criticism, except he had good reason to think that the piano belonged to the parents. What is the alternative? Are you going to perpetuate a system by which people who deliberately get credit to a reasonable extent can defraud the creditor? When the debtor is called upon to pay, he says he will not pay. When the sub-sheriff sends his bailiffs to the house, he finds everything there claimed on behalf of the wife—which is the usual procedure—or somebody connected with the family. In the vast majority of those cases, the under-sheriff and bailiffs know perfectly well that those things did not belong originally to those people. Is that system to be perpetuated? I do not want to urge that the creditor ought to be able to exercise any harsh methods in the collection of his debts. All I want to establish is the principle that a man or woman is liable for debts ordinarily incurred and that the creditor should have reasonable protection, when he gives credit to a person, that that person will be liable for the debt.

"That person."

I do not want to carry the case any further than to guard against the fraud which we know has been constantly perpetrated and which has been so widespread that it has been a scandal for many years. I do not think this section is going to hurt anybody honestly inclined. It is going to get at the people who are dishonestly inclined.

It is not.

I think it is. At all events, it is a reasonable effort to do so. We have heard Deputy Connor Hogan speak about moratoriums. That has nothing to do with this Bill at all. If Deputy Connor Hogan can come before the House and say that the state of the country is such that a general moratorium should be declared, and if he can convince the House to that effect, that will be a matter for separate legislation. This Bill deals with the enforcing of court orders and ordinary procedure and, even where the sheriff seizes goods belonging to a third party, there is a remedy, and a very effective remedy, against the creditor.

What is the remedy?

Would the Deputy tell us where that remedy is to be found?

I beg the Deputy's pardon. The remedy is against the debtor.

Against the person who has no money.

If he has no money, I do not suppose any law can secure payment of the debt. The object of this section is to get the money out of persons who can pay. It is not a question of getting money out of persons who cannot pay.

The problem we are confronted with by this section is an exceedingly difficult one. We are placed in the position by the proposers of this Bill of choosing one of two alternatives. My principal objection to the section is to the alternative proposed. When a judgment was given in the past, fraud was admittedly perpetrated by the debtor on the creditor. That fraud took the shape of bogus third-party claims. By the Emergency Powers Act, it was sought to diminish that fraud. A wrong has existed in the past against the creditor. There is no gainsaying that. What is particularly disagreeable in the present proposal, by way of remedy, is that it is proposed to rectify a possible wrong by the institution of another possible wrong.

By a greater wrong.

The question for us is: "Which is the greater wrong?" I do not think it is altogether fair that we should be limited to these alternatives. It is, I know, extremely difficult to suggest any other alternative. But is the position of affairs so difficult of solution that it is imperatively necessary for us to propose as a remedy for one wrong the possibility of another? The old saying is: "Two wrongs do not make a right." I fail to see how two possible wrongs can make a right. The present proposal is essentially an unfair one—that a third innocent party may, even if it be only at the discretion of a certain officer, be made liable for a debt which he has not incurred. Is that proposal justifiable in order to meet existing or possible future wrongs on creditors? I hardly think it is. We are driven, in the present Bill, to consider which of two alternatives imposes the greater hardship. Is it a greater hardship to leave open to possible fraud a creditor who, with his eyes open, gives goods to a certain person, than to impose liability on an absolutely innocent person for the debt of another? As has been said, this proposal practically does away with a married woman's property rights. A husband may contract a debt. He may be a worthless spendthrift, but, notwithstanding that, his creditors know that his wife has property and that they may proceed against her and seize her goods. That is rendering the Married Woman's Property Act inoperative. The question of the wife contracting debts and her husband being liable is a different question, because that may be the law as it stands. That a creditor should have at his disposal the discretion of an official as to the ownership of property within a family, without having the ownership specifically proved, is giving him too much advantage, since he gave the credit with his eyes open.

There is an existing possibility—indeed, I go so far as to say a practice— of fraud, but are we justified in trying to remedy that practice by substituting a possibility—I go no further than to say it is a possibility—of wrong upon another third party who happens to be in a certain relationship by blood with the debtor? I do not think we are, and I do not think it will tend to the benefit of what the Deputy has described as our greatest asset—the credit of the country. I think it would be a good thing, if it were possible, to curtail a certain amount of the credit that is given to certain people on the understanding that under the powers contained in the Emergency Powers Act, and possibly in the present legislation, the creditor shall have other means of obtaining redress besides seizing the goods of the actual debtor. There is a good deal in what Deputy C. Hogan has said, that previous to the passing of the Emergency Powers Act credit was given. If that credit was given, which, as Deputy Cooper said, need not have been given, I do not see what is to prevent the same state of affairs going on in future. If it does go on in future, I say that the people responsible for it are those who give the credit. I think that the difficulty is a great one. I only wish that I could see any fair and proper way out of it. I confess that I do not. One thing I do see clearly, that it is not proper that we should endeavour to do away with the possibility of one wrong by substituting the possibility of another.

I wish to support Deputy Johnson's amendment, although I am not quite satisfied that the amendment will leave the situation quite satisfactory. I am sure I am expressing the general opinion of those who favour the amendment when I say that we are not speaking for the people who want to get out of paying their legitimate debts. We are all as anxious as Deputy Good that the credit of the State shall be maintained, but I am not prepared to say that the people of the country are so dishonest that we have to include a section like this in the Bill that is probably more drastic than any section to be found in a similar Act in any other country. I hold that the conditions now are different from those prevailing when the temporary measure was passed. It is true that many people owe legitimate debts, but there is no organised conspiracy on the part of a body of the citizens to get out of paying their just debts. If there were, it might be necessary to seek such drastic powers as are sought here. Many people are anxious to pay legitimate debts, but are not in a position to do so. These measures are to be employed against certain people in certain conditions, and the representatives of trade in this House urge that the section should be included. Under this section I feel that we are going to perpetuate a system of credit in this country that has been overdone.

To emphasise and increase it.

There is an old saying that experience is a dear school, and if some business people pay bitterly for their experience sometimes, it is to be regretted. It is true that it would make them more careful in giving credit and make them examine more closely the standing of the people who want goods on credit. Under this section business people will feel that they can give limitless credit, knowing that the under-sheriff has such drastic powers that he can go to a place to which goods have been supplied and seize property to satisfy a decree regardless of whether it belongs to the father or the son, or whether it was the father or the son procured the goods. Nothing could be more dangerous than putting business people in the position of being able to supply goods on credit, say, to the children of a man who is in a position to pay cash, but is in no way responsible for his children's actions, with the feeling that they could recover the money from somebody. I feel that the credit of the country in the long run will suffer from such a dangerous provision as this, and that some section should be substituted for it that will provide a safeguard but will not go so far as this does.

Deputy Hewat talks about the remedy the aggrieved individual will have. The aggrieved individual in certain cases will not have any remedy. A father's property may be taken away for a debt contracted by his son. What is the use of the Deputy suggesting that the father has a remedy by taking his son into court when the father knows that the son has not a penny? The son has only got to order goods to be sent to his father's house and the father can be made amenable under this section. I feel that the Minister is going too far. When he makes the plea that the faults of law are due to the weakness of human nature, I wish to point out to him that the sheriff or his officials are only human, too. When the sheriff knows that no action will lie against him, even though he takes the property of a person other than the debtor, property will be taken in satisfaction of the debt regardless of the person to whom it belongs. We do not want to put the courts in the position of not being able to carry out decrees against people who owe just debts, but it is unfair to give power to sheriffs to make seizures in satisfaction of decrees regardless of whose property may be taken and to say that the sheriff shall not be made amenable. I feel that the Minister is asking too much. I do not believe that the amendment down in the name of Deputy Duggan will meet the situation or that the mere deletion of the section will meet the situation, but I feel that something other than what is now proposed must be inserted.

It rather increases my good opinion of the section to find that when Deputies want to attack it they find it necessary to caricature it, as Deputy Baxter and Deputy Cooper have caricatured it. There has been more folly talked about this section than I have heard in the Dáil for some time. The whole line of approach is that the section is designed to give to the under-sheriff not merely the power and the right, but to impose on the under-sheriff the duty of seizing in execution of a court order or decree the goods of persons other than the judgment debtor. Deputy Baxter then proceeds on that basis with his caricature, just as Deputy Cooper did. The prodigal son comes home and the under-sheriff arrives with his staff to dismantle the father's house in collection of his debts. Deputy Cooper, of course, has read too many Bills to be honestly under the impression that the section is designed to create any such state of affairs. But, unable to attack the section for what it is as it stands, he adopts the device of caricaturing it, and Deputy Baxter, in a rather melancholy way, did the same. But Deputy Cooper's way differed from Deputy Baxter's only in being more cheerful and probably, for that reason, more insidious.

The section is not designed to create a situation in which the under-sheriff shall seize property other than the property of the judgment debtor. The purpose of the section is to enable the under-sheriff, when satisfied that a particular third-party claim is not bona fide, is not genuine, to proceed on that judgment of his, on that opinion of his, without incurring the risk of an action and personal liability. If you leave the risk of an action there, then, in fact, the under-sheriff will not proceed. Why should he? The moment the claim is advanced he will return to the judgment creditor hisnulla bona. The effect of the section is to withdraw that personal liability, and the position I aim at is this, the under-sheriff would be in the position that he can go ahead if he believes that a particular third-party claim is not honest. That is a very different picture to that which Deputy Cooper drew—the dismantling of the house of the father of the prodigal son. If they had anything as civilised as bailiffs and sheriffs in those days the under-sheriff would not have any doubt as to who was the owner of the goods. Certainly he would not take the line that he honestly and seriously believed that the property was the property of the youth.

Will the Minister deal with the concrete instance given by Deputy Johnson?

Deputy Johnson gave a specific case. I rather deprecate these alleged specific cases.

You asked for them on Second Reading.

If a man stops me in the Lobby and pours a tale of woe into my ear, an ex-parte, biased account of something that had passed, I consider it would scarcely be fair of other Deputies, with the endorsement of my personal seal, so to speak, to put out that story as a fact without examination.

I was not aware that the Minister had been approached on the matter.

I am speaking in a general way about the introduction of specific cases as to what did and did not pass. Deputies have too long been Deputies to believe every tale that is brought to them, but they will admit they generally find on investigation, either by themselves or others, that there is another side to the matter. I want to suggest in regard to Deputy Johnson's specific case that there is probably also another side to the matter. He himself probably will not question that. Deputy Hogan suggested that we should not pass this section as it has not yet been passed in Westminster. If that criterion be applied, many useful and beneficial Bills will have to be withdrawn here. Deputy Redmond used the words "innocent third party." It is not a question of innocence or guilt, and I do not quite understand the reference to the innocent third party who may be damnified by this section.

I meant the wife, husband, or other relative, as set out in the section, of the debtor who may be innocent.

We can have sympathy for many people, and I invite sympathy for that much abused person, the judgment creditor. I want to put it to the Deputy that in the great majority of cases the debt will have been incurred for household requisites from which members of the household, as likely as not, will have benefited. If it were food, clothing, or furniture for the house, it is difficult to say that one person, resident in the household and enjoying its amenities, did not benefit as much as another. I am not making the case that it follows from that that the property of a person, other than the judgment debtor, ought to be liable to seizure in the abstract, but I throw it out as a suggestion to the Deputy when he talks of third parties and mentions what an enormity it would be if third party property were seized. You come back in the end to what Deputy Redmond calls the existing practice. Abuse is to be perpetuated, and if it is not perpetuated how is it to be remedied or removed?

On the one hand, you have the admission that prior to the introduction of this Act there was wholesale abuse, a great fraud, a wrong to judgment creditors, something that reduced the courts and court procedure to a mockery. What is the picture since? For three years this section has been operative law and not one single complaint has reached the Minister or the Department, which would certainly hear complaints if they were there, and which hears very many complaints that are not there in fact. If it is to be a choice of lesser evils, I put it to you that it is easy to choose. You had this section as operative law for three or four years and you had not one complaint, not a suggestion of one, either through Deputies directly, by correspondence or by any other way. On the other hand you had something that was notorious, scandalous, something that every solicitor and under-sheriff in the country could talk about. I certainly had no difficulty in choosing. I felt that to refuse to remove that abuse and fraud because of the technical, abstract, theoretical abuses that might flow from this section as it stands would be the height of administrative and legislative folly.

To suggest that we should solemnly write into this legislation, bearing on the execution of the order of our new court system, a thing which was a monstrous fraud in the past, seems utterly wrong. That, however, in effect is what the deletion of this section means—that the under-sheriff must not have this discretion, and is to be put back to the position when, if he made a bona fide mistake and erred to the extent of taking one article of furniture, say the property of the wife in respect of the husband's debt, he was to be personally liable for that. That same provision will give the same results as it gave in the past. The under-sheriff will not bother. Why should he incur personal risk if the legislature imposes it? He will returnnulla bona every time, and then you get the position where the third party claim is a sufficient and effective answer to the judge's decree. Is not that a temptation to people? Will human nature stand up to it? Deputy Duggan's amendment makes it clear that there is to be no right in a judgment creditor to have no property seized other than that of the judgment debtor. It makes it clear that the under-sheriff cannot be made to seize any property which he does not believe to be the property of the judgment debtor. I want to leave him free to seize property which he believes to be the property of a judgment debtor. He has not been so free in the past. This sword of personal action was hanging over him. If he made a mistake he was faced with that and he simply went home and returned nulla bona.

Surely we ought not carry on to our new system that monstrous farce of the past. I want Deputies to be hardheaded. I am sure that they desire efficient and impartial justice in the State, and, desiring it, let them not hesitate to take the only steps that will secure it. To hesitate to take those steps, to reject the section on the grounds that it is not an ideal section in the sense of being an absolutely water-tight, cast-iron rampart against error and against the possibility of mistake here or there, is, in my view, a finicky outlook which will result in perpetuating a far greater wrong, a far greater fraud, a far greater injustice. If this section is rejected because it is not ideal then we should seldom pass a Bill. We have not passed a Bill here which, when fine-combed, could not be said to leave room for some hardship. We ought not to legislate at all if that is the point of view, that rather than one wrong should occur let the State and its courts and its officials perish, let all writs be waste paper, let us tell the people that if they have the misfortune to be brought to court for debt they have only got to get their wives or their sons to say that they own everything in the house and that that settles it. Deputies should not take that point of view. They should simply look at the matter soberly, decide where the greater evil lies, and if they cannot put forward a better section than the one in the Bill—which I assure them has been very carefully considered departmentally and in consultation with responsible officers throughout the country—then they should simply take it that this is the thing that must be if we are to get away from the farce and the fraud which notoriously obtained in the past.

The Minister has a habit of arguing against what he calls abstract principles and academic propositions and arguments. Whenever he comes up against anything that deals with a political, a legal or any other principle he would prefer at any time just to see and deal with the immediate object than to regard the possible consequences in the future. He is quite prepared to say: "Principles go hang; let us deal with the immediate difficulty and deal with that at the moment, irrespective of possible consequences." Deputy Baxter and others have said that the deletion of this section will not leave the Bill satisfactory so far as it affects the collection of judgment debts. I agree at once. I am glad to say that I have practically no knowledge whatever of the workings of this matter, either from a creditor's or a debtor's standpoint.

The Deputy did not need to tell us that.

If the Minister will believe me, the only direct contact I had with such a case was a case which this is designed to remedy, where undoubtedly an attempt was made to my knowledge to evade the judgment debt by alleging that certain property belonged to a third person. I admit that, and I will accept the Minister's assurance that the evil is a very widespread one. I do not know, though, whether the Minister agrees with the conclusion at which one arrives if his picture of the state of the country in this respect is a true one, that the country is so debased that lying is wholesale and no one will think of hesitating about a lie in such a matter. If that is the general state of the country——

Might I intervene just to say that I made the point that you were presenting people with an overwhelming temptation and that you were seeking to perpetuate what has been found to be an overwhelming temptation. If you put a person in the position that he can save his property by saying that it belongs to his wife, he will say it belongs to his wife.

Yes, and the Minister told Deputy Cooper by a gesture that they would be quite prepared to perjure themselves and to make a mere statement that this particular property belonged to the wife or to somebody else. Now, if that is the general moral state of the country, I suggest to the Minister that it might be difficult to find court officers who will be free from contamination, and if such court officers are afflicted with the same disease they are liable to be "touched," as the slang phrase goes, by the creditor, and they will not be quite so wise in the use of their discretion. One of my objections to this section is that it talks about leaving discretion with the under-sheriff but removes from him all responsibility. Leaving discretion with a man and removing responsibility from him is practically telling him that he may do what he likes, and "discretion" is a misnomer. It is merely then a case of personal fancy, whether he likes the blue eyes of the creditor or not.

I do not want to interrupt, but I think the Deputy would perhaps wish me to, rather than to allow him to go on under a misapprehension. He is using "responsibility" very loosely there. The officer has really a legal liability; he is not relieved of administrative responsibility, and does the Deputy suppose for a moment that the officer who will correspond to the under-sheriff, who notoriously and to the knowledge of the Minister abused his powers under the section, would be left in office?

I suggest that the Minister will find it very difficult to prove the misuse of discretion. It will be the easiest thing in the world for the under-sheriff to make the claim that he had good reason to believe that this or that property belonged to some other person, and there is no likelihood at all that the Minister will have all the facts brought to his notice. Deputy Good supported the Minister in this Bill for the protection of shopkeepers. Naturally. The Minister said that the great majority of the cases that have come before the courts are in respect to the supply of household requisites. If that is the case, as I presume it is the case —the Minister, no doubt, made full inquiries before he made such a statement—the position we are faced with is that the shopkeeper either does or does not make inquiries regarding the property in the house, the household goods of the debtor, and what encumbrances there are on that property, before giving credit. We know that as a matter of practice shopkeepers do no such thing. They take the previous trading record of the debtor; they take their general knowledge of the debtor; they do not intend to inquire what property is in the house or whether other people have prior claims on that property. But we know that a habit has grown up in this city of shopkeepers forcing goods upon people, wanting to get them into their books, encouraging them to take credit rather than pay cash, and we know, on the other hand, that there is a large number of people, wealthy people as well as poor people, who will run into debt for months and months, and then, in six or nine or twelve months, make an attempt to pay and demand discount for cash. But the shopkeeper does not make any attempt to find out before giving that credit what the furniture in the house may be. He deals, as a matter of practice, with the ordinary appearance, the previous record, if he has any knowledge of it, and takes his chance. But this Bill, as soon as it is known to be in existence, will encourage shopkeepers to a greater extent than ever before, will encourage moneylenders, will encourage the travelling draper to impose goods upon the daughter of the house or the son or the wife, without the knowledge of the husband, with the knowledge that they have got a double or a treble security by means of this Bill. To say that the Bill is only relieving the under-sheriff of personal liability may be true if it works out as the Minister thinks it ought to work out. But this section opens possibilities which are likely to be availed of in many cases for injustice to be done; I should say even more than possibilities; that it almost makes sure that injustice will be done in many cases with the intention that protection should be given to creditors who have in most cases run people into debt by their importunity for trade. We have got from the Minister that the Bill is intended to apply mostly to shopkeepers——

I did not say that.

The suppliers of household requisites. But I think in the future it will apply to an increasing number of money-lenders' debts, and that particular class of debt, and I think that the shopkeeper or the moneylender ought not to be encouraged to give more credit than he gave in the past—because we are passing a Bill which will treble the security— without calling upon him to exercise more care than he has done in the past in the giving of credit. Deputy Good talked about the prosperity of the country depending on the credit of the country. We did exist somehow or other prior to 1914. I will leave out the war period altogether. If all we read to-day in the newspapers is true or approaches the truth, our position to-day is ten times worse in the matter of credit than it ever was pre-war. But the traders managed to exist pre-war; they gave credit pre-war and they had no such security as this behind them. They took their risks, they got decrees in the courts, and presumably many of the decrees were executed. I do not understand the argument that says that because the state of trade at present is so very much worse than it was in 1914, this kind of provision requires to be added to the ordinary law.

The Minister argues that the state of morality of the country, pre-war, was such, and the state of the commercial credit of the country was such as could not be defended, and that this sort of thing was required to help people to be honest and to help the traders of the country to collect their debts. I do not understand how it was that the country could exist at all if the state of things was so bad in pre-war times without such a proposition as this is at the back of the creditors. The Minister threw some doubts about the particular instance that I gave. I do not know whether he will give me credit for it, but I have been always very careful in my selection of instances and in my examination of cases that are put up to me before making any complaints. I have never attempted to father a complaint unless I had made some examination of it, and I did so in this case. I made some inquiry into the case which I speak of, and I quote it because I think it is a case that might easily be typical under the working of this particular section. A son goes into debt unknown to his father: judgment is entered against the son and the bailiffs enter the father's house. The father makes inquiries and gets into touch with his solicitors. The solicitors do not know that there is such a provision in the law, but eventually the bailiffs are induced to withdraw. They have used the discretion that the Minister speaks about, and so far so good, but the father is obliged to pay the sheriff's fees before they will withdraw, and whatever may be said about the debt itself, or the claim for distraint, it surely is an injustice that the father should be obliged to pay fees in respect of a debt of which he knows nothing. I would feel myself very unjustly treated if I went home to-night and found there were bailiffs in my house because of a debt which was incurred by my son and of which I knew nothing, if I had to go to all kinds of trouble, to solicitors and to others, to prove that this was not my debt, if I had to run the risk that my property would be taken out of the house, and that no liability would lie with the under-sheriff no matter how I might endeavour to impress upon him the fact that the property was mine and not my son's.

It is all very well to talk of the discretion of the under-sheriff. I am not prepared to trust to the discretion of any under-sheriff in these circumstances, which discretion might be used in nine cases out of ten fairly, but in the other one case might be used quite unjustly and I am prepared to stand by the one per cent. in such a case rather than assist the nine per cent. in collecting debts from people who do not owe them. The effect of the deletion of the section would be that something else would have to be put in its place. The responsibility for that lies on the Minister, but if he will accept a suggestion —I do not know how this would alter the Bill and it is beyond my capacity to frame a clause which would cover all the requirements—it seems to me that if this section is retained in the Bill it ought to be made possible for the actual owner of the property to forbid a sale and to give that person the right to appeal to some authority, the sheriff or whatever the authority may be, and that there should be no sale until that appeal or appearance before such authority had been made; also that the responsibility for costs incurred should not lie upon the owner of the property but upon either the creditor or the sheriff. I think the owner of the property upon whom a wrongful distraint has been made should be freed from all financial responsibilty in respect of a debt of which he knows nothing. I ask the House to agree with the deletion of the section if only for the purpose of declaring against the principle that a creditor should have the right to use a court officer to seize goods in payment of a debt which somebody else has incurred.

He has not the right.

Yes, he has the right because there is no responsibilty if he does wrong.

There is Deputy Duggan's amendment.

Amendment put.
The Committee divided. Tá, 27; Níl, 41.

  • Earnán Altún.
  • Pádraig Baxter.
  • Seán Buitléir.
  • Bryan R. Cooper.
  • Séamus Eabhróid.
  • David Hall.
  • Connor Hogan.
  • Séamus Mac Cosgair.
  • Tomás Mac Eoin.
  • Risteárd Mac Fheorais.
  • Risteárd Mac Liam.
  • Liam Mag Aonghusa.
  • Patrick J. Mulvany.
  • Tomás de Nógla.
  • William Norton.
  • Ailfrid O Broin.
  • Criostóir O Broin.
  • Tomás O Conaill.
  • Aodh O Cúlacháin.
  • Eamon O Dubhghaill.
  • Mícheál O Dubhghaill.
  • Seán O Duinnín.
  • Mícheál O hIfearnáin.
  • Seán O Laidhin.
  • Pádraig O hOgáin (An Clár).
  • Pádraig O hOgáin (Luimneach).
  • William A. Redmond.

Níl

  • Earnán de Blaghd.
  • Thomas Bolger.
  • Séamus Breathnach.
  • Seoirse de Bhulbh.
  • Próinsias Bulfin.
  • Séamus de Burca.
  • John J. Cole.
  • Louis J. D'Alton.
  • Michael Egan.
  • Patrick J. Egan.
  • John Good.
  • Thomas Hennessy.
  • John Hennigan.
  • William Hewat.
  • Patrick Leonard.
  • Donnchadh Mac Con Uladh.
  • Liam Mac Cosgair.
  • Eoin Mac Néill.
  • Seoirse Mac Niocaill.
  • Liam Mac Sioghaird.
  • James Sproule Myles.
  • Martin M. Nally.
  • John T. Nolan.
  • Michael K. Noonan.
  • Peadar O hAodha.
  • Mícheál O hAonghusa.
  • Seán O Bruadair.
  • Risteárd O Conaill.
  • Conchubhar O Conghaile.
  • Máirtín O Conalláin.
  • Eoghan O Dochartaigh.
  • Séamus O Dóláin.
  • Peadar O Dubhghaill.
  • Aindriú O Láimhín.
  • James O Mara.
  • Séamus O Murchadha.
  • Máirtín O Rodaigh.
  • Seán O Súilleabháin.
  • Mícheál O Tighearnaigh.
  • Caoimhghín O hUigín.
  • Seán Príomhdhall.
Tellers—Tá: Deputies Baxter and Tomás O Conaill. Níl: Deputies Dolan and Sears.
Amendment declared lost.
Amendment 6.—"In line 19 to delete the words `or other place of residence'." (Major Bryan Cooper.)

This amendment was put down in order to get the discussion we have just had. Therefore, I think it need not be moved.

Amendment not moved.

I move:—

To add at the end of the section a new sub-section as follows:—

"(2) The foregoing sub-section shall not operate to make it obligatory on any under-sheriff to take in execution under any execution order any such goods, animals or other chattels as are referred to in that sub-section."

The purpose of this amendment is to make it clear to execution creditors that it is not obligatory on any under-sheriff to exercise the powers conferred on him by Section 13. The section was designed to give a discretion to the under-sheriff, but it has been ascertained that some little doubt has arisen on the matter and so it has been considered advisable to insert this amendment.

I would be in favour of this amendment considering that the previous Section 13 has been passed, and I take this opportunity of congratulating the Minister for Justice for admitting the principle of discretion. The principle of discretion in this case is in regard to officials who, though, as he has said, are not entirely without responsibility, still are immune by Section 13 from any action that they may take in the exercise of that discretion. When I say any action, I do not mean any unreasonable action, but I would like to congratulate him on admitting the principle of discretion, and I wish he would only admit the same principle with regard to higher officers of State, such as District Justices, and that when this is considered he will bear the attitude in mind that he has taken up on this proposal.

Amendment put and declared carried.
Question—"That Section 13, as amended, stand part of the Bill"—put.

called for a division.

We have had a division already.

You have the amended section now put from the Chair.

There was no objection to the amendment.

I am not sure on the matter of order—that would be for the Leas-Cheann Comhairle—whether the Deputy is entitled to challenge a division on a matter on which there has just been a division, but I put it to the Deputy's good sense that to perpetuate a waste of the time of the Dáil is scarcely creditable for a representative of the premier county.

It is quite true that there has been a division within the last few minutes, but the amendment proposed by Deputy Dolan does not go far enough to meet my objection to the section. I thought I made that clear when I spoke on Deputy Johnson's motion. I am still of the opinion. I am not satisfied and I claim the constitutional right to challenge a division.

The motion was declared carried before the division was called for.

I did not think there was a sufficient number present to demand a division.

Cannot one Deputy demand, and insist on, a division?

He can, but there is supposed to be more than one to stand up in their places when demanding a division.

That matter has arisen, with regard to myself, a short time ago. I challenged a division and only two voted on my side. I maintain it is the privilege of a Deputy, even if he votes alone, to insist on a division.

If the amendment is accepted by the House I do not see why Deputy Connor Hogan should call for a division. It is only a waste of time.

It is on the section as amended.

Does Deputy Hogan persist in calling for a division?

The Committee divided. Tá, 41; níl, 21.

  • Earnán de Blaghd.
  • Thomas Bolger.
  • Séamus Breahnach.
  • Seoirse de Bhulbh.
  • Próinsias Bulfin.
  • Séamus de Burca.
  • John J. Cole.
  • Louis J. D'Alton.
  • Máighréad Ní Choileáin Bean
  • Uí Dhrisceóil.
  • Michael Egan.
  • Patrick J. Egan.
  • John Good.
  • Thomas Hennessy.
  • John Hennigan.
  • William Hewat.
  • Patrick Leonard.
  • Seosamh Mac a' Bhrighde.
  • Donnchadh Mac Con Uladh.
  • Liam Mac Cosgair.
  • Eoin Mac Néill.
  • Seoirse Mac Niocaill.
  • Liam Mac Sioghaird.
  • James Sproule Myles.
  • Martin M. Nally.
  • John T. Nolan.
  • Peadar O hAodha.
  • Mícheál O hAonghusa.
  • Seán O Bruadair.
  • Risteárd O Conaill.
  • Conchubhar O Conghaile.
  • Máirtín O Conalláin.
  • Eoghan O Dochartaigh.
  • Séamus O Dóláin.
  • Peadar O Dubhghaill.
  • Aindriú O Láimhín.
  • James O'Mara.
  • Séamus O Murchadha.
  • Seán O Súilleabháin.
  • Mícheál O Tighearnaigh.
  • Caoimhghín O hUigín.
  • Seán Príomhdhall.

Níl

  • Pádraig Baxter.
  • Seán Buitléir.
  • Connor Hogan.
  • Séamus Mac Cosgair.
  • Tomás Mac Eoin.
  • Risteárd Mac Fheorais.
  • Risteárd Mac Liam.
  • Tomás de Nógla.
  • William Norton.
  • Ailfrid O Broin.
  • Criostóir O Broin.
  • Tomás O Conaill.
  • Aodh O Cúlacháin.
  • Liam O Daimhín.
  • Eamon O Dubhghaill.
  • Mícheál O Dubhghaill.
  • Seán O Duinnín.
  • Mícheál O hIfearnáin.
  • Seán O Laidhin.
  • Pádraig O hOgáin (Luimneach).
  • William A. Redmond.
Tellers—Tá: Deputies Dolan and Sears. Níl: Deputies Heffernan and Connor Hogan.
Motion declared carried.
Sections 14 to 20 inclusive put and agreed to.
SECTION 21.
21.—(1) Proceedings by way of interpleader may be instituted by an under-sheriff before the District Court in any case in which the under-sheriff shall have taken in execution or intended execution any goods, animals, or other chattels under any execution order and such goods, animals, or chattels are claimed by some person other than the debtor, and the value of the proceeds of the sale (if any) of such goods, animals, or chattels does not exceed twenty-five pounds.
(2) On the hearing by the District Court of any interpleader proceedings under this section, the Justice shall have jurisdiction to hear and determine all matters in issue between the parties, including the amount of and liability for costs, and to make such order thereon as justice shall require.

I move:—

In sub-section (1), lines 40 and 41, to delete the words "of the proceeds of the sale (if any)."

Will the Minister give us some explanation of this?

If the Deputy will refer to Section 21, sub-section (1), lines 40 and 41, he will see the meaning of it. In practice where a claim is made in the case of a person other than the judgment debtor and the sheriff decides to interfere he does not sell the goods, but he requires the claimant to lodge the amount of the decree or the value of the goods seized. and he refers the claim for decision to the Court. He himself holds the amount which has been lodged with him much as a stake-holder. He is the holder of the stakes. The proceeds of the sale, it is felt, would not be the proper basis for determining whether the District Court had jurisdiction, and the actual value of the goods seized ought to be the determining factor. We are proposing, therefore, to take out the other words, and leave simply the value of the goods as the standard test of whether a particular case would come within the jurisdiction of a District Court or would have to be referred to the Circuit Court.

The only question that arises in my mind is as to whether the provisions of the section, or the section as amended, is going to make it easier for the actual owner, or the person who claims to be the owner, of the goods to get quick relief. I mean if the District Court is capable of dealing with the matter more quickly than a Circuit Court application shall be made to the District Court in as many cases as possible.

That would be the effect of the amendment.

Amendment put and agreed to.

Amendment 9, which I have down—"In sub-section (1), line 40, to delete the word `of' and to substitute the word `or' "—I do not now intend to move as it is destroyed by the acceptance of the previous amendment.

The purpose of it is the same as that effected by amendment No. 8, and I beg to suggest to the Deputy in connection with amendment 10, which is his next amendment, that the matter could be raised more conveniently on the Rules of Court, that must be introduced after the passing of this Bill.

I do not wish to press the amendment. The whole object I had in view is to give relief, and whether that is given by way of Rules of Court or through the measure we are now discussing is a matter for the Minister to arrange.

Amendment not moved.
Sections 22, 23 and 24, inclusive, put and agreed to.
Question—"That the title stand part of the Bill"—put and agreed to.
The Dáil went out of Committee.
The Bill, as amended, reported.

I will take the report stage on the 23rd instant, and I intend to give notice, because of the considerable intervals there have been between the second reading and committee, and between this and report, to take the final stages on that day.

May I ask for an alteration of the programme. I suggest that we should now take the Statistics Bill instead of the Court Officers' Bill, which we could take to-morrow.

I only wish to speak a word for those who may conceivably be preparing a case against the Statistics Bill and have been waiting for the other Bill to go through. We were promised that a certain routine would be gone through, and if that is suddenly changed it might do harm to those interested in this section. It is liable to disarrange the programme of Deputies if they really take an interest in the work of the Dáil.

If Deputy Johnson wishes I will take the School Attendance Bill now.

I have no claim in the matter. I only wish the business to be carried out as arranged. I am giving the warning that this is the sort of thing that might cause trouble in the future if we are constantly disarranging our programme.