I move amendment No. 22:—
In page 7, line 31, to add, at the end of the section, "under the Mercantile Marine Act, 1955 (No. 29 of 1955)."
Statute of Limitations Bill, 1954—Committee Stage (Resumed).
Section 2, as amended, agreed to.
Section 3 agreed to.
SECTION 4.
This is a drafting amendment.
I think that was covered last night.
Very good, Sir.
Major de Valera
On the amendment. How much wider is that than the original section under the Mercantile Marine Act, 1955? I have not gone into it, but clearly, this amendment is limiting the exclusion of actions relating to ships merely to those that are embraced under the Mercantile Marine Act. I have not checked up on the provisions of that Act. Is there any substantive change in the effect of Section 4 or is this, as was stated, merely a drafting amendment?
That is all it is. Proceedings in respect of the forfeiture of a ship are now dealt with by the Mercantile Marine Act, 1955, which replaces the relevant provisions of the Merchant Shipping Act, 1894, and we might as well so indicate. As the Minister stated on the Second Stage, proceedings for the forfeiture of a ship are now governed by Section 90 of the 1955 Act. They arise where a ship unduly assumes Irish character, or conceals Irish or assumes foreign character, or an unqualified person assumes ownership of the ship. In all cases the ship becomes forfeit to the State. No period of limitation is prescribed and for obvious reasons. The proceedings are more or less quasi-criminal proceedings, but it is desirable to exclude them specifically from the Bill. They are not clearly excluded in the definition of "action" in Section 2 (1) as they could be held not to be criminal proceedings.
Amendment agreed to.
Section 4, as amended, put and agreed to.
SECTION 5.
Question proposed: "That Section 5 stand part of the Bill."
Major de Valera
The only point that arises on Section 5 is that, although the equitable jurisdiction will be there, I presume equity will follow the law in this matter and that, to all intents and purposes, the law will be as it is in this Act?
Yes, in most cases.
Question put and agreed to.
SECTION 6.
Question proposed: "That Section 6 stand part of the Bill."
The position with regard to counter-claims and set-offs is covered by this section. It seems to me that—as far as I am aware, and possibly I am wrong—the position heretofore would have been that it was not until the date of the filing of the document in which the counter-claim was made that the statute would run. If I am correct in that view—and I am not certain that I am—it seems to me that the position will arise in which, whilst a person's claim against another may be barred by the statute or may be in the process of being barred by the statute, it will be revised by the institution of proceedings against that person and, although there might be very considerable delay, as there often is, until a counter-claim is filed, the advantage of that delay would be lost to the original claimant and the person who owes the liability on the counter-claim. It may not be of any great importance. It would not be if defence and counter-claim were always filed very soon after the institution of proceedings. Very often in regard to High Court proceedings in particular, there is a very lengthy delay. That delay does not seem to me to be any sound reason why the person who up to that time has slept on his rights should gain a further extension, except in so far as the subject of the counter-claim may be intertwined with the subject of the claim. The rules permitting a counter-claim, not set off, are the widest possible. There is no restriction on counter-claim to confine it to the same subject matter as the claim. There could be a case made for leaving the provisions of Section 6 with regard to set-off by not extending the counter-claim.
The Minister discussed this matter on the Second Stage and I should like to direct the Deputy's notice to what the Minister said in this respect at column 1134 of the Official Report on 1st March, 1956, which reads as follows:—
"Under Section 6 of the Bill, where a set-off or counter-claim is pleaded, the set-off or counter-claim shall be deemed to be a separate action for the purpose of fixing the limits of the limitation period applicable; and the date until which the statute runs against such set-off or counter-claim will be the date of the beginning of the action in which the set-off or counter-claim is pleaded. At present the position, where the statute is pleaded to a set-off or counter-claim, is that time runs against the set-off until the beginning of the action in which it is raised, but it runs against the counter-claim until the date when the counter-claim is pleaded. The section will, therefore, bring the law of limitation as to a counter-claim into line with the law as to set-off."
That is what I object to. I appreciate that will be the position. I am suggesting that there is a real difference between counter-claim and set-off. The rules of the court would confine set-off to the same subject matter as the claim. Therefore, it would appear that a man against whom a claim is made would bide his time. The claim, however, can be on any subject matter and, therefore, an entirely different claim could be brought by way of counter-claim which could not be brought by set-off. I myself do not see the justification for giving an extension of the time merely by reason of the accident of a claim having been made by the same person, though not on the same subject. It might not be of great importance between individuals, but between firms it would be of great importance.
The Deputy wants to have this section confined to set-off?
Yes. I would make it a consolidation section only, leaving things as they are.
Notice taken that 20 Deputies were not present; House counted and 20 Deputies being present,
It is agreed to have this matter looked into.
Question put and agreed to.
Section 7 agreed to.
SECTION 8
Question proposed: "That Section 8 stand part of the Bill."
Major de Valera
I wonder if the wording of sub-paragraph (b) of Section 8 is sufficient? Is it necessary to put in there something like "any right, claim or title in any action"? Is any amendment of that nature necessary? It will do on Report Stage, if necessary.
Does the Deputy mean to extend the word "action"?
Major de Valera
What is clearly meant there is that the commencement of the action will serve all rights, claims and titles in issue in the action and prevent the statute running against it. The wording here is: "Nothing in this Act shall affect any action commenced before the operative date or the title to any property which is the subject of any such action." If it had been simpliciter“shall not affect any action,” then, I think, you could feel reasonably safe that “affect any action” would affect all claims and disputes involved in the action, but it goes on to say: “or the title to any property which is the subject of any such action.” Because you have been specific in that later on it seems to me you could take the stretched interpretation that the section only means the action will not affect the actual action itself. It would be the subject of limitation, for instance, to bring an action in tort which was brought only within the statutory time. There might be a case for argument whether the action itself were then in dispute. There might be some other claim or right per se, in other words, statute barred, and by reason of the fact that you are careful to specify “the title to any property which is the subject of any such action,” would it not also be safer to include any claim or right in issue in that action as well as the title? I do not expect that the suggestion can be accepted immediately, but it might perhaps be wise to look into it before Report Stage.
Question put and agreed to.
Sections 9 and 10 agreed to.
SECTION 11.
I move amendment No. 23:—
In sub-section (1), page 8, to delete paragraph (b) and substitute:—
(b) actions founded on quasi-contract;
This is a drafting amendment. We are introducing a special category of actions, namely, actions for quasi-contracts. These are the old actions based on what was called assumpsit, which comprised such actions as actions to recover money paid by mistake, actions on a quantum meruit for work done, and so on. Modern legal theory favours the introduction of quasi-contracts as a new classification. The obligation arises neither in contract nor in tort. There is no agreement and there is no wrong doing. These actions are, as it has been put, actions re and not consensu; and a contract is imputed to the defendant by a fiction of law. We now propose to use the expression “actions founded on quasi-contract” instead of the expression in Section 11 (1) “actions commonly called actions arising quasi ex contractu”. The term “quasi-contract” is now well-established in law and we might as well use it.
Major de Valera
I completely agree that the amendment is in a much more appropriate form than the expression "actions commonly called actions arising quasi ex contractu”, which, if left in the Bill, would be very sloppy in the matter of draftsmanship. The only point that will arise, when the Bill becomes a statutory enactment, is this matter of quasi-contract.
After all the expression quasi-contract is a technical term, a legal technical term. So far as I know it is not defined. On the other hand, though it is the point I think the Attorney-General is making, it is hardly ancient enough to have acquired that certainty of conventional meaning, such as a word like mortgage or morgagee. Has it been considered whether a definition of quasi-contract is desirable? If it is, the only place that I can see that you can get it is from judgments. To take it from academic legal theory could be dangerous.
There may be legal textbooks in the background but certainly there are judgments. The phrase has acquired a well-recognised meaning and it will acquire more when we put it in this Bill. The present draft is, we think, better.
Major de Valera
I agree; the original phrase would not do at all. The only place where it can be of any real importance is where there is a shorter limitation, say in tort or contract. There is a shorter limitation in certain torts such as slander. I do not know how you could get over that but perhaps it would not be beyond the ingenuity of Deputy Finlay.
Amendment agreed to.
I move amendment No. 24:—
In sub-section (1) (e), page 8, line 35, to delete "1908" and substitute:—
"1908, or
(iii) an amount recoverable by a tortfeasor under Section 4 or 5 of the Tortfeasors Act, 1951 (No. 1 of 1951)."
This is a drafting amendment. We propose to exclude actions for contribution under the Tortfeasors Act from the category of actions arising under statute and we are providing separately for them in amendments Nos. 16 and 26.
Amendment agreed to.
I move amendment No. 25:—
In page 9, sub-section (2) (c), line 7, to delete "two" and substitute "three."
Major de Valera
This is a substantive amendment.
The object of this amendment is to provide a period of three years for all slander actions. The period at present is two years for slander actionable per se and six years for other slander. Slander per se arises where the words themselves constitute a cause of action, as where one person imputes a criminal offence to another, or imputes dishonesty or unfitness for his trade or profession to him. In these cases special damage need not be proved.
The period proposed in the Bill for all slander is two years. Deputy Finlay raised this matter on the Second Stage and suggested that it might be too short in some cases. We reconsidered the proposal in the Bill and we are now suggesting three years in all cases. This is the same period as the period proposed for ordinary personal injuries actions. Slander is a personal injury, though in a non-physical sense, and there is something to be said for having a period of three years in its case as well. In libel the period is and will continue to be six years, but here different considerations apply as a libel is defamation in a permanent form and the difficulty of the memory of witnesses becoming vague after a long lapse of time does not arise. What is written is permanent and there will be no doubt as to its exact content. The actual words used are vital in both libel and slander. As the years go on, people are less likely to be accurate as to what exactly was said. We are of opinion that a period of three years ought to be satisfactory for the spoken word. Another reason for distinguishing libel and slander is that libel is a more serious tort generally and, being often printed, can have a very wide circulation.
Major de Valera
I think there is nothing against this.
Amendment agreed to.
I move amendment No. 26:—
In page 9, before sub-section (3), to insert the following new sub-section:—
( ) An action to recover, in respect of the liability of a tortfeasor to an injured person, an amount recoverable by the tortfeasor under Section 4 or 5 of the Tortfeasors Act, 1951 (No. 1 of 1951), shall not be brought after the expiration of two years from the date on which the cause of action accrued.
The object of this amendment is to provide a period of two years for actions for contribution by a tortfeasor under Section 4 or 5 of the Tortfeasors Act, 1951. Under Section 4 of the Act, any tortfeasor who has paid an amount in excess of that apportioned to him in the judgment may recover the excess from any other tortfeasor who has not paid his apportioned amount. Where apportionment has not been made in the judgment, a tortfeasor who has paid on foot of the judgment may recover contribution from another tortfeasor liable in respect of the injury sustained by the original plaintiff.
Actions for contribution arise under statute and, but for the provision now proposed, the actions could be taken up to six years from the judgment of the court, which would mean in some cases up to 12 years from the date the original cause of action giving rise to the subsequent proceedings accrued. In the case of personal injuries the whole period would be nine years. We think that two years extra from the date of the judgment is sufficient in the case of actions for contribution. We have proposed in amendment No. 16, already carried, that the cause of action in contribution cases will be deemed to accrue on the date of the judgment for the original plaintiff who is injured.
Amendment put and agreed to.
I move amendment No. 27:—
To delete sub-section (4) and substitute the following new sub-section:—
( ) The following actions shall not be brought after the expiration of 12 years from the date on which the cause of action accrued:—
(a) an action upon an instrument under seal, other than an action upon an instrument under seal to recover—
(i) arrears or a rentcharge or a conventional rent, or
(ii) any principal sum of money secured by a mortgage or other charge, or
(iii) arrears of interest in respect of any sum of money secured by a mortgage or other charge, or
(iv) arrears of an annuity charged on personal property;
(b) an action to enforce an award where the arbitration agreement is under seal;
(c) an action to recover a debt created by sub-section (2) of Section 14 or Section 125 of the Companies (Consolidation) Act, 1908.
Major de Valera
I would like to hear something about this.
The Deputy has the new amendment before him. The matter is put in a clearer and more concise way. This is a drafting amendment. We are putting sub-section (4) of Section 11 in a form which can be more easily read, thus helping people to grasp the actual proposals. The proposed sub-section will apply the 12 year period to (1) actions under seal, other than actions in respect of rentcharges, etc., (2) actions to enforce an award where the arbitration agreement is under seal, and (3) actions to recover a debt created by sub-section (2) of Section 14 or Section 125 of the Companies (Consolidation) Act, 1908. Section 14 (2) of that Act provides that all money payable by any member under the memorandum or articles of association shall be a specialty debt due to the company; and Section 125 provides that the debt of every person liable to contribute to the assets of a company in the event of its being wound up shall also be a specialty debt. For specialty debts (which at present comprise debts on instruments under seal and debts arising from a statute) the present period is 20 years. We are getting rid in the Bill of the expression "specialty".
Actions in respect of rentcharges, conventional rents and mortgages are separately dealt with in the Bill and it will be immaterial whether or not there is an instrument under seal. It will be seen that paragraph (a) (iv) of the proposed sub-section refers to arrears of an annuity charged on personal property. Actions in respect of such arrears are dealt with in amendment No. 35.
Amendment put and agreed to.
Question proposed: "That Section 11, as amended, stand part of the Bill."
On the section there are two matters I should like to mention. Sub-section (3) of Section 11 provides that:—
"An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action."
I think I mentioned this before. I certainly considered it on the Second Reading. I am in the position that I feel the expression "any matter which arose" is particularly loose. I am in the awkward position of not being able to suggest an alternative straight away. It may be that it has already been judicially defined and decided but it does seem to me that to say that an action shall not be brought in respect of any matter which arose more than six years before the commencement of the action is not sufficiently precise. I would suggest it might be considered between this and Report Stage. Even by elaborating the sub-section it might be more precise.
There is one other matter. It is possibly a small point and possibly merely a drafting point. Sub-section (5) provides:—
"An action shall not be brought upon a judgment after the expiration of 12 years from the date on which the judgment became enforceable."
I take it that there does not appear anywhere in the Bill any definition as to when a judgment becomes enforceable. I do not know of any reason why that should not be when the judgment is delivered. The becoming enforceable of the judgment is the appropriate date, but again there seems to be some difficulty of ascertainment.
Section 9 of the Mercantile Law Amendment Act, 1856, is replaced by Section 11 (3) of this Bill. The phrase which is being questioned occurs in Section 9 of that Act which provides that "no claim in respect of a matter which arose more than six years before the commencement of such action or suit shall be enforceable, etc.” I shall look into what the Deputy says and see if any change should be made.
With regard to the judgment becoming enforceable, ordinarily speaking the normal thing would be that the judgment becomes enforceable when it is given; but sometimes judgments are made to become enforceable at a later date. We want to cover that.
Question put and agreed to.
Section 12 agreed to.
SECTION 13.
Question proposed: "That Section 13 stand part of the Bill."
Again, I do not know how far the Minister would be prepared to go on this section. It does seem to me that the 40 years' limitation on the recovery of land in favour of the State has not got any real basis or justification. I appreciate there are certain specific matters, particularly in connection with the Land Commission and the registering of land, in which to force the State to act within 12 years will probably make them harsher landlords than they need necessarily be under the existing situation. What I am concerned with is that there are certain other rights of the State, or certain claims of the State, which certainly should be enforced and could be enforced, if they are ever going to be enforced, within 12 years. I would press for even a partial reduction in the 40-year period applicable to a certain number of State claims, not necessarily to them all, not so much for the purpose of freeing people from an actual claim but for the purpose of simplifying title. It may be that in some subsequent legislation which, I think, has been foreshadowed, with regard to title, this matter will be dealt with; but, if it is not going to be dealt with in that way, it does seem to me that some effort to restrict to 12 years a number of State claims against land would greatly simplify transactions in title. In other words, put them in the same position as an individual with regard to certain of their claims. I appreciate one cannot make it widespread because it would be a hindrance rather than a help to the relationship between, say, the Land Commission and tenants of the Land Commission. I know that is an argument in favour of the longer period, and it is a sound one, but there are certain other claims which might be dealt with separately and the period brought down to 12 years.
The Deputy is asking that sub-section (1) of Section 13 should be broken up into the various types of action which may be brought by a State authority, and that we might have a shorter period for some?
Yes.
Question put and agreed to.
Sections 14 to 16, inclusive, put and agreed to.
SECTION 17.
I move amendment No. 28:—
In sub-section (3) (a), page 13, line 10, before "rents" to insert "conventional".
This is again on the point of the conventional rent and the rentcharge. It is a drafting amendment in line with the other amendments designed to ensure that when we mean "conventional rent" we will say "conventional rent".
Amendment agreed to.
Section 17, as amended, put and agreed to.
SECTION 18.
I move amendment No. 29:—
In sub-section (4) (a), page 13, line 47, to delete "rent" and substitute "rentcharge".
We can look at amendment Nos. 29 and 30 together. The first deals with the deletion of the word "rent" and the substitution of the word "rentcharge" and then we want to delete paragraph (b), sub-section (4) and substitute a new paragraph. The rent is a rentcharge the whole time in Section 18 (4) (a). In sub-section (4) (b) it is a conventional rent. The latter paragraph has been redrafted to clarify exactly what is meant and the reference to Section 17 (3) is being omitted as it might lead to some confusion.
Sub-section (4) of Section 18 is an important sub-section in that it provides that, where a person is in possession of land subject to a rentcharge and does not pay the rentcharge he will be in adverse possession of the rentcharge, and may acquire a title to it after 12 years. In other words, he will be able to obtain an estate in fee in the lands free from the rentcharge which will be wiped out. It also provides that, where a person wrongfully claiming the land in reversion under an ordinary lease receives the conventional rent, he will be deemed to be in adverse possession of the land, and after 12 years may acquire a title to it. In the case of an ordinary lease the owner in fee is the lessor and the tenant has no estate in fee in the lands. In the case of a rentcharge, the occupier has the estate in fee in the lands and the person who is entitled to the rentcharge has an estate in fee in the rentcharge. I dealt with this subject earlier in discussing amendments Nos. 6 and 13.
Major de Valera
The point is that, apart from having the distinction, if somebody is in adverse receipt of rent —I am referring now to amendment No. 30—he becomes entitled to it after a certain period has expired. Is not that simply what it means?
It debars the superior interest again.
Major de Valera
Putting it the other way round, yes. He certainly bars the person who would otherwise be entitled to it.
It works both ways. He bars both the person ahead of him and his receipt of the rent is sufficient to be an adverse rent to him.
Major de Valera
He bars the person ahead and the receipt to him means he is entitled to the rent thereafter.
He is in adverse possession of the land.
Amendment agreed to.
I move amendment No. 30:—
In sub-section (4), page 13, to delete paragraph (b) and substitute:
(b) receipt of the conventional rent under a lease by a person wrongfully claiming to be entitled to the land in reversion immediately expectant on the determination of the lease shall be deemed to be adverse possession of the land.
Amendment agreed to.
Question proposed: "That Section 18, as amended, stand part of the Bill."
This section has more practical effect than some of those we have had already. It will apply, first of all, to the most common adverse possession which we know, and that is successive people in registered land. In that respect, by reason of another amendment to a later section of the Bill, it is quite clear that more people will acquire farms in future by adverse possession than even heretofore. As I read this section, it will have the effect that in the common case usually found where, say, one son of a registered owner, there being no grants of administration, no flow of legal title, remains on for a period as a bachelor and hands over informally, as he very often does, to one chosen nephew, who then continues on. Now, as I understand the existing law, the position would be that you would have periods of adverse possession, one succeeding the other.
If I understand this section correctly it would mean that if there was even a very small gap between the actual possession of the two parties concerned, and if there was no will or deed transferring an interest by the first possessor to the second possessor, you would probably break your adverse possession and you would recreate the registered owner's right. I do not know whether the Attorney-General would think I am right in that interpretation or whether there is any danger that that would happen. It would be undesirable if there is. The purpose of this Bill quite clearly is that where people have stayed away from land and have not taken an interest in it, they should be debarred after a reasonable period of 12 years. I have a feeling that sub-section (3) may have the other effect, and may be recreating a registered owner in the person of the representative of a man long since deceased.
Look at Section 2 (3) of the Bill.
Yes, that would seem to cover most of it.
Question put and agreed to.
Sections 19 to 23, inclusive, agreed to.
SECTION 24.
I move amendment No. 31:—
In page 14, line 32, to delete "Registration of Title Act, 1891" and substitute "Act of 1891".
This is a drafting amendment consequent on amendment No. 2. Throughout the Bill, the Registration of Title Act, 1891, will be referred to as "the Act of 1891".
Amendment agreed to.
Section, as amended, agreed to.
SECTION 25.
I move amendment No. 32:—
To delete sub-section (2).
This is a somewhat difficult matter. The amendment itself is merely aimed at deleting the sub-section but other consequential deletions follow later.
This sub-section was inserted ex abundanti cautela. On reconsideration, we are satisfied that there is no need for it and the same applies to Section 26 (2), Section 32 (2) and Section 33 (2). Sub-section (2) of Section 26 does not appear in the section proposed to be inserted (instead of Section 26) by amendment No. 34. The deletion of Section 32 (2) and Section 33 (2) is proposed in amendments Nos. 40 and 43, respectively.
Section 25 (2), as it stands, proposes to re-enact Section 25 of the Real Property Limitation Act, 1833, which put the previously existing law into statutory form. An express trustee as long as he has the property in his possession can never acquire a title to it as against the beneficiary. This was always the rule in equity. After the Act of 1833 was passed, a certain difficulty arose in regard to the interpretation of Section 25 in relation to Sections 40 and 42 of the Act. Section 40 provided for a limitation period of 20 years (now 12 years since the 1874 Act) to any action to recover a sum of money secured by a mortgage or otherwise charged on land or rent and Section 42 put a limitation period of six years to any distress action or suit for arrears of rent, or of interest in respect of any sum of money charged upon or payable out of any land or rent.
There were two types of case. In the first class of case, land was held by the trustee for the payment of an annuity or rent to the beneficiary and, as the trustee held the property, he could never plead the Statute against the beneficiary. The second class of case arose where the rent or annuity was payable to the trustee for the beneficiary or the annuity was secured by a trust term, but where in each instance the land charged was in the possession of and vested in an owner who was in no sense an express trustee.
The first class of case gave rise to no difficulty, as the trustee being in possession could not obtain a title as against the beneficiary.
The second class of case did give rise to difficulty, and the courts eventually interpreted the 1833 Act as if Section 25 applied to it also, so that once there was a trust instrument it did not matter who was in possession of the property. In Ireland it had been held in earlier cases that an annuity charged on land in the possession of a third party, or a legacy similarly charged, and in each case payable to a trustee for an annuitant or legatee, was within Section 40 or Section 42 of the 1833 Act, and that a period of limitation applied in actions against the third party.
In England, a different view was taken and it was finally held that, once there was a trust instrument, it did not matter whether the trustee was in possession of the property or not in so far as beneficiary's rights were concerned. All cases were held to come within Section 25 of the 1833 Act and no limitation period was applicable. There was, I may say, strong adverse criticism of the decisions in England. Section 10 of the Act of 1874 was designed to remedy the position. There was no reason why an annuitant who was essentially a creditor should, in respect of time, be given enormous advantages merely because the annuity was payable not to himself directly but to a trustee.
Where the annuity was payable by the trustee and the trustee was in possession of the property the position was different. Unfortunately, Section 10 of the 1874 Act, which was designed to remedy the decisions in regard to cases where the property was in the possession of a third party, was misinterpreted to such an extent that it was held in Turner's Case (1917) 1 Ch. that the effect of Section 10 of the 1874 Act was to allow a trustee to plead the Statute where he was in possession of the property. The section is as follows:—
"After the commencement of this Act no action, suit or other proceeding shall be brought to recover any sum of money or legacy charged upon or payable out of any land or rent and secured by an express trust, or to recover any arrears of rent or of interest in respect of any sum of money or legacy so charged or payable and so secured, or any damages in respect of such arrears, except within the time within which the same would be recoverable if there were not any such trust.”
On first reading, the words “and secured by an express trust” would seem to have imported into the law the revolutionary principle that a trustee in possession could plead the Statute against a beneficiary, but a study of the background of the section shows clearly that such was not and could not have been the intention. The words are “secured by an express trust” and not “held on an express trust”, and the section was designed to overrule the line followed in the cases I have referred to, where possession by a non-trustee was held to be the same as possession by a trustee for the purposes of the Statute.
Section 10 of the 1874 Act was, therefore, a gloss on Section 25 of the 1833 Act and a very necessary gloss in view of the attitude of the courts in England. Unfortunately the position was confused as far as Ireland was concerned by a provision in the Irish Judicature Act of 1877, which although passed after Section 10 of the 1874 Act came into operation before it. Section 28 (2) of the Irish Act of 1877 provided (like Section 25 (2) of the English Judicature Act of 1873) that no claims of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, should be held to be barred by any Statute of Limitations, but the sub-section went on to add words (not found in the English provision) as follows:—
"This provision, however, is not to affect the enactments contained in the tenth section of the Real Property Limitation Act, 1874, when the same shall come into effect."
The draftsman of the Irish provision obviously misinterpreted completely the intention and effect of Section 10 of the 1874 Act unless he had in mind (which is very doubtful) that Section 10 did modify the law to the extent that, in the case of arrears of an annuity, the annuitant could not claim, as the possession of the trustee, a possession obtained by the trustee after the annuitant's claim to arrears had been barred.
Turner's Case was overruled in a later case before the Court of Appeal in England. This is Jordison's Case (1922) 1 Ch. referred to in the sidenotes to Section 26 (2), Section 32 (2) and Section 33 (2). These sub-sections were designed to enact the law as laid down in Jordison's Case and to make the position what I have suggested it is, despite what might appear on the surface to be conflicting provisions in Section 10 of the Real Property Limitation Act, 1874, and Section 28 (2) of the Irish Judicature Act, 1877. We are satisfied that the difficulties which Section 10 of the 1874 Act were intended to remove and which are discussed in Jordison's Case can no longer arise under the proposals in the Bill.
If land is held by trustees to raise sums by way of portions or otherwise, the Statute will not run because of the provisions of Section 37 of the Bill excluding the application of any limitation period where the property is in the possession of the trustees. If the property is held by persons who are not trustees, the fact that the portioner's rights are provided for in a trust will be immaterial and the Statute will run. The portions will be sums charged on land in the latter case and the Statute will apply in the ordinary way.
Section 28 (2) of the Irish Judicature Act, 1877, is being repealed in the Schedule to the Bill, as, of course, also are all the provisions of the Real Property Limitation Acts.
Amendment agreed to.
Section 25, as amended, agreed to.
SECTION 26.
I move amendment No. 33:—
In page 15, before Section 26 (and before line 15), to insert the following new section:—
Actions to recover settled chattels.
( ) (1) Where any chattels are held upon a trust, including a trust for sale, and the period fixed by this Act has expired for the bringing of an action to recover the chattels by the trustees, the title of the trustees shall not be extinguished if and so long as the right of action of any person beneficially entitled to the chattels either has not accrued or has not been barred by this Act, but if and when such right of action has been so barred, the title of the trustees shall be extinguished.
(2) When any chattels are held upon a trust, including a trust for sale, an action to recover the chattels may be brought by the trustees on behalf of any person beneficially entitled in possession to the chattels or in the proceeds of sale whose right of action has not been barred by this Act notwithstanding that the right of action of the trustees would apart from this provision have been barred by this Act.
This is an amendment which involves the insertion of a new section. The object of the amendment is to provide a section dealing with actions to recover settled chattels. Under Section 12 of the Bill, where the period of limitation for bringing an action for wrongful detention or conversion has expired, the title to the chattel will be extinguished, whereas, under existing law, only the right of action is barred.
Sub-section (1) of the proposed new section provides that, where the period of limitation for bringing an action by the trustee against a stranger in possession of settled chattels has expired, the title of the trustee shall not be extinguished so long as the action of any beneficiary has not accrued or been barred. The title of the trustee is being preserved by this sub-section in order that he may, under sub-section (2), recover the chattels on behalf of a beneficiary whose right of action has not been barred. The operation of the provisions of Section 12 in regard to conversion of goods will, therefore, be suspended in the case of the conversion of a settled chattel so long as the right of action of any beneficiary either has not accrued or has not been barred, but it will only be suspended in so far as the title of that beneficiary is concerned.
The proposed provisions in the new section are analogous to those for settled land, which are contained in Section 25, sub-sections (3) and (4). On Report Stage we may have to amend Section 12 to provide that it is to be subject to the section to be inserted by this amendment.
Might I ask a question with regard to the amendment? It does seem to me that this proposed new section is somewhat similar to sub-sections (3) and (4) of Section 25. Am I right in thinking that the title trustees could become barred, and that we are preserving it to allow them to sue for a subsequent beneficiary?
That is the intention.
Amendment put and agreed to.
I move amendment No. 34:—
In page 15, before Section 26, to insert the following new section:—
Actions to recover arrears of rentcharges, conventional rents, dower and annuities charged on personal property.
( ) (1) No action shall be brought or distress made to recover arrears of a rentcharge or damages in respect thereof after the expiration of six years from the date on which the arrears became due.
(2) In sub-section (1) of this section the word "action" does not include proceedings under Section 37 of the Land Act, 1927 (No. 19 of 1927).
This is a drafting amendment consequential on the deletion of Section 26 (2) which I mentioned in discussing amendment No. 32. We propose to divide up sub-section (1) of the existing Section 26 into two sub-sections and to delete sub-section (2). There is no need for sub-section (2) which, like Section 25 (2), Section 32 (2) and Section 33 (2), was inserted just in case any difficulty might arise. We are satisfied that no difficulty will arise. The amendment involves the deletion of Section 26 of the Bill.
Amendment agreed to.
Section 26 deleted.
Sections 27 to 29, inclusive, agreed to.
SECTION 30.
I move amendment No. 35:—
In page 16, before Section 30 (and before line 4), to insert the following new section:—
( ) No action shall be brought to recover arrears of an annuity charged on personal property or damages in respect thereof after the expiration of six years from the date on which the arrears became due.
This amendment proposes to provide a limitation period of six years in the case of actions to recover arrears of an annuity charged on personal property or damages in respect thereof. Unpaid instalments of an annuity charged on personal property are not subject to any limitation period under existing law or under the Bill. The annuity is not a principal sum charged on property and will not therefore fall within Section 32 (1) of the Bill. Neither is it a rentcharge, as a rentcharge is a periodic sum charged on land. We think that annuities charged on personal property ought to be covered in the same way as principal sums charged on land or personal property and annuities charged on land are covered. Difficulty often arose where an annuity was charged on a mixed fund of land and personal property. I shall mention this matter later on. Where personal property charged is in the hands of trustees, no question arises in the case of an annuity charged on the property as the trustees cannot plead the Statute. Being trustees in possession, they will not be able to plead it under the Bill either.
Amendment put and agreed to.
I move amendment No. 36:—
In page 16, before Section 30, to insert the following new section:—
( ) (1) No action shall be brought by a State authority claiming the sale of land which is subject to a mortgage or charge after the expiration of 40 years from the date on which the right of action accrued to a State authority or, if it first accrued to some person through whom a State authority claims, to that person.
(2) The following provisions shall apply to an action by a person (other than a State authority) claiming the sale of land which is subject to a mortgage or charge:—
(a) subject to paragraph (b) of this sub-section, no such action shall be brought after the expiration of 12 years from the date on which the right of action accrued to the person bringing it, or, if it first accrued to some person through whom he claims, to that person;
(b) if the right of action first accrued to a State authority, the action may be brought at any time before the expiration of the period during which the action could have been brought by a State authority, or of 12 years from the date on which the right of action accrued to some person other than a State authority, whichever period first expires.
(3) Subject to Section 52 of the Act of 1891, at the expiration of the period fixed by sub-section (1) or (2) of this section for a mortgagee to bring an action claiming the sale of the mortgaged land, the title of the mortgagee to the land shall be extinguished.
The object of this amendment is to provide specifically for actions by a mortgagee claiming the sale of land. It is proposed to provide the same period—12 years, and 40 years in the case of a State authority—as in the case of actions to recover land, whether by a mortgagee or not. I have dealt in detail with the actions that a mortgagee may take in discussing amendments Nos. 3 and 5. As I have explained foreclosure is unknown in this country. An action by a mortgagee claiming sale will, we propose, no longer be an action to recover money charged on land. It will be action on its own specifically provided for by this amendment.
Under sub-section (3) of the new section, we propose that once the action is barred the right as well as the remedy will be barred. In other words, the title of the mortgagee to land will be extinguished and the effect will be the same as in the case of an action to recover land under Section 24 of the Bill. Both a mortgagee and a chargeant may bring an action claiming sale, but only a chargeant of registered land may recover the land. A chargeant has no estate in the lands and the registered chargeant's powers of recovering the land exist only by reason of the special provisions of Section 13 of the Registration of Title Act, 1942, to which I referred in dealing with amendment No. 2.
Perhaps the Minister would consider on this question, the point I made on Section 11 regarding State authorities.
We will certainly consider the Deputy's point.
Amendment put and agreed to.
I move amendment No. 37:—
In page 16, before section 30, to insert the following new section:—
( ) Where the right of a mortgagee of land to bring an action to recover the mortgaged land is barred by this Act or the right of action of a person claiming as mortgagee or chargeant the sale of land is barred by this Act, the right of the mortgagee or chargeant to the principal sum and interest secured by the mortgage or charge shall be extinguished.
The object of this section is to provide that where the right of action of a mortgagee claiming recovery of the land or sale is barred, his right to the principal sum and interest secured by the mortgagee should be extinguished. This means that once the real remedy is barred the personal remedy will also be barred. Barring the real remedy means extinguishing the title to the land under Section 24 of the Bill and the previous amendment. We also want to ensure that barring the personal remedy will also extinguish the right in this type of case. This is the law at present, where a period of 20 years is the period in the case of a covenant under seal and 12 years in the case of an action to recover land or money charged thereon. The period will be the same in both cases under the Bill, but the question of whether the personal remedy could subsist where an acknowledgement was made after the period of limitation had expired could still arise. We think that an acknowledgement in such a case should have no effect and that once the remedy against the property is barred the personal remedy against the debtor should also be barred. The existing law on the subject is clear from the judgment of the Supreme Court delivered by Murnaghan J. in In re Huggard's Estate (1930) I.R.
"The material words of sect. 42 of 3 and 4 Will. 4, c. 27 (the Real Property Limitation Act, 1833), are: ‘No arrears of rent or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, or any damages in respect of any such arrears of rent or interest, shall be recovered by any distress, action, or suit, but within six years next after the same respectively shall have become due.' The respondent contends that the limitation imposed by this section is applicable, and that it is not possible to treat the charge as a mere charge upon personalty.
"In Henry v. Smith at p. 390, Sugden L.C. gave his opinion as to the construction of this very section. He was dealing with judgments, which at that time created an encumbrance upon real estate, and were also available against the personal estate. He says: ‘It was said that if judgment creditors are held to be included in this section, they still will be able to proceed against the personal estate of their debtor for the full arrears of interest. I admit no such consequence. The two clauses (he refers to sects. 40 and 42) relate to money secured upon land, and to the interest of money so secured; and when the Act of Parliament says no action shall be maintained after a given number of years for the recovery of such sum or such interest, how can a man after that period bring any action in respect of his debt? If the action is brought so as to charge the personal estate, the answer is obvious: “You have brought your action in respect of a sum of money charged upon or payable out of real estate, you are therefore within the terms of the Act, and consequently your right is barred.” The personal estate may be an additional security to such a creditor, but however numerous his securities they could not carry his right farther; if his remedy under the real security is gone, it is also barred in respect of all the other securities.’
"In Sutton v. Sutton the question arose before the Court of Appeal in England whether the words in sect. 8 of the Real Property Limitation Act, 1874 (replacing sect. 40 of 3 and 4 Will. 4, c. 27), and which limited the remedy against the land to 12 years, were intended to apply also to the personal remedy in the covenant contained in a mortgage. The Court of Appeal in England held that it did, and that the section could not be read as applying only to the recovery of the mortgage debt out of the lands.
"We are of opinion that the interpretation placed by Sugden L.C. on sect. 42 is the correct one. A sum of money charged on land, and also on personal estate, is a sum of money charged upon or payable out of land. No arrears of interest in respect of it are to be recovered by any distress, action, or suit. The section does not say it is to be recovered out of the land charged, and it is impossible to make any such limitation harmonise with the words of the section itself. The principle stated by Sugden L.C. is in reality that underlying the decision in Sutton v. Sutton which has moulded the rules dealing with mortgages for 50 years. In some judicial minds there may be a tendency to limit any further extension of the decision. We can, however, find nothing which would justify us in departing from the decision given by Sugden L.C. and the Court of Appeal in England.”
We may decide to propose the amendment of the proposed new section on Report Stage so as to apply its provisions to a principal sum charged on personal property. This is being considered.
Amendment put and agreed to.
Section 30 deleted.
Major de Valera
Perhaps it might help the Attorney-General if I say in regard to these drafting and consequential amendments that it is appreciated this Bill must be almost one of a pattern once we have decided the general framework of it. The only things we are interested in at this stage are the actual substantive changes from the Second Stage. It is quite obvious that in the case of a Bill like this, the rest must be left to the draftsman.
SECTION 31.
I move amendment No. 38:—
In page 16, before Section 31, to insert the following new section:—
( ) (a) Where a mortgagee of land has been in possession of any of the mortgaged land for a period of 12 years, no action to redeem the land of which the mortgagee has been so in possession shall thereafter be brought by the mortgagor or any person claiming through him.
(b) Paragraph (a) of this sub-section does not apply in respect of a Welsh mortgage.
(2) Where a mortgage of land under a Welsh mortgage which provides that the rents are to be applied in reduction of the principal moneys and interest has been in possession of the land for a period of 12 years commencing on the date on which all the principal moneys and interest have been satisfied, no action to redeem the land shall thereafter be brought by the mortgagor or any person claiming through him.
(3) Subject to Section 52 of the Act of 1891, at the expiration of the period fixed in that behalf by sub-section (1) or (2) (whichever is applicable) of this section for any person to bring an action to redeem land, the title of that person to the land shall be extinguished.
The section contained in this amendment is in substitution for Section 31 of the Bill. We propose to cover what is called a Welsh mortgage. This is a type of mortgage which arises where the mortgagee goes into possession of the land and recovers his debt and/or the interest thereon out of the rents and profits. Once the debt and interest have been paid off it is up to the mortgagor to redeem his land. If he does not do so the mortgagee is in adverse possession and we propose to provide that after 12 years he will be entitled to the land. A Welsh mortgagee has no estate in fee in the lands as an ordinary mortgagee has, and he acquires no title. Welsh mortgages were common at one time in this country.
The proposed section simply puts into statutory form the law as laid down by the courts in the cases cited in the sidenote. By the way, the reference to Fenton v. Walsh should read “(1909) 43 I.L.T.R. 54” and not “(1908) 42 I.L.T.R. 54”. A drafting amendment may be necessary to ensure that “rents” includes “profits.” It is to be noted that we are only dealing with one type of Welsh mortgage, namely the one where the mortgagee in possession recovers the principal and the interest out of the rents and profits. In a Welsh mortgage where only the interest is recovered and the principal remains outstanding, the Statute can never apply.
Amendment agreed to.
Section 31 agreed to.
SECTION 32.
I move amendment No. 39:—
In sub-section (1) (b), page 16, before sub-paragraph (ii), to insert the following new sub-paragraph:—
(ii) a charge on land under Section 31 of the Land Law (Ireland) Act, 1881, or.
The object of this amendment is to cover charges on land arising under Section 31 of the Land Law (Ireland) Act, 1881. These are charges to cover sums advanced by the Office of Public Works for the reclamation of land, drainage, building cottages, or any other works of agricultural improvement. In line with the other provisions governing State authorities in the Bill the period of limitation is to be 40 years. The Office of Public Works in the case of these advances will be in the position of an ordinary chargeant except that the limitation period will be longer.
Amendment agreed to.
I move amendment No. 40:—
To delete sub-section (2).
I have already dealt with this. There is no need for the sub-section.
Amendment agreed to.
I move amendment No. 41:—
In sub-section (3), page 16, line 40, before "sum" to insert "principal".
This is a drafting amendment designed to make "sum of money" read "principal sum of money".
Amendment agreed to.
Section 32, as amended, agreed to.
SECTION 33.
I move amendment No. 42:—
To delete sub-section (2).
This is governed by the earlier discussion.
Amendment agreed to.
Section 33, as amended, agreed to.
Section 34 agreed to.
SECTION 35.
I move amendment No. 43:—
To delete sub-section (3).
We propose to delete sub-section (3) which deals with executors and administrators. We will deal with these separately in amendment No. 45; and as I explained, in discussing amendment No. 14, it is proposed to adopt a different policy in respect of personal representatives. Section 35, without sub-section (3), will now only deal with express trustees. The Statute will apply to them, except, of course, where they are in possession of the property or guilty of fraud. That is the existing law as contained in the Trustee Act, 1888. The provisions in regard to possession of the property and fraud will be found in Section 37 of the Bill.
Amendment agreed to.
Section 35, as amended, agreed to.
Section 36 deleted.
Section 37 agreed to.
SECTION 38.
I move amendment No. 44:—
In page 18, before Section 38, but in Part II, to insert the following new section:—
Actions in respect of the estates of deceased persons.
( ) (1) Subject to Section * of this Act, no action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a will or on intestacy, shall be brought after the expiration of 12 years from the date when the right to receive the share or interest accrued.
(2) Subject to Section * of this Act, no action to recover arrears of interest in respect of any legacy or damages in respect of such arrears shall be brought after the expiration of six years from the date on which the interest became due.
Major de Valera
This takes the place of Section 36?
We are simply putting Section 36 in a different place in the Bill. It will now come after Section 37 and before the new section proposed in amendment No. 45.
Major de Valera
Amendment No. 44 is a new section going in to replace Section No. 36.
Would the Attorney-General say what is the period of limitation in the case of intestacy?
Twelve years.
Yes.
Major de Valera
The following section refers to the section which will be the following section, to qualify. I think the scheme is all right.
Amendment agreed to.
I move amendment No. 45:—
In page 18, before Section 38, but in Part II, to insert the following new section:—
( ) No period of limitation fixed by this Act shall apply to an action against a personal representative or any person claiming through him where the claim is founded on any fraud to which the personal representative was party or privy.
This amendment is designed to provide that no personal representative may plead the Statute where the claim against him is founded on fraud to which he was a party. He will be able to plead the Statute in all other cases, because by reason of amendment No. 14 he will not be a trustee except where he is specifically created a trustee in the will. We do not think that a personal representative guilty of fraud should be allowed to plead the Statute at all. This amendment and the previous one will cover the point raised by Deputy Finlay as to the conflict between Section 36 and Section 37. Section 37 will not apply to personal representatives and the new section replacing Section 36, and provided for in amendment No. 44, will be subject to the section contained in the present amendment. In other words, actions to recover the estate of deceased persons will have a limitation period attached to them unless the personal representative is guilty of fraud. Personal representatives will, of course, include personal representatives under Part IV of the Registration of Title Act, 1891, by reason of amendment No. 14 and we are overruling In re Loughlin, to which I referred in discussing that amendment. Whether a personal representative is a representative in regard to registered freeholds, leaseholds and any other type of property, real or personal, he will be able to establish title.
Amendment agreed to.
I move amendment No. 46:—
In paragraph (a), page 18, before line 25, to insert—
(a) "debt" includes any liquidated pecuniary claim;
"statute-barred debt" means a debt in respect of which the period fixed by this Act for the bringing of an action to recover it has expired.
Amendments Nos. 46, 47 and 48 go together. These are all drafting amendments. We are putting in the word "debt" instead of "liquidated pecuniary claim"; and the word "claim" is being taken out and we are substituting "debt" in another case.
Major de Valera
That is much neater.
Amendment agreed to.
I move amendment No. 47:—
In paragraph (a) (ii), page 18, line 33, to delete "liquidated pecuniary claim" and substitute "debt".
Amendment agreed to.
I move amendment No. 48:—
In paragraph (a) (ii), page 18, line 35, to delete "claim" and substitute "debt".
Amendment agreed to.
I move amendment No. 49:—
To delete sub-paragraph (iv) of paragraph (c) and substitute the following sub-paragraph:—
(iv) in the case of an action to recover arrears of a rentcharge, a conventional rent, dower or interest or damages in respect thereof—be construed as references to the date on which the arrears became due.
Amendments Nos. 49 and 50 go together. These are again drafting amendments. We want to preserve throughout the Bill the distinction between a rentcharge and a conventional rent and to say which we mean in each case. If we refer to both, we propose to specify both.
Amendment agreed to.
I move amendment No. 50:—
In paragraph (d) (i), page 19, line 15, to substitute "rentcharge" for "rent".
Amendment agreed to.
I move amendment No. 51:—
To add to the section the following new paragraph:—
( ) reference to a debt—
(i) shall, in the case of a rentcharge or of a conventional rent, be construed as references to a gale of the rentcharge or of the conventional rent,
(ii) shall, in the case of interest, be constructed as references to an instalment of the interest.
This amendment proposes to add to the section a new paragraph. It is again a drafting amendment. We want to provide that references to a debt shall for the purposes of this Part of the Act include references to a gale of a rentcharge or of a conventional rent or to an instalment of interest. This will specifically apply the provisions as to acknowledgment and part-payment to gales of rentcharges and conventional rents and to instalments of interest. Under the existing law, instalments of rent-charges, conventional rents and interest do not specifically come within the provisions of the law as to part-payment.
Section 42 of the Real Property Limitations Act, 1833, which deals with the limitation period for arrears of rent and interest makes no provision for part-payment, though it does provide for acknowledgment. This means that part-payment of an instalment of interest or of a rentcharge or of a conventional rent would not prevent the operation of the Statute as to the balance, unless, in the case of interest, there was a contract under seal and unless, in the case of a conventional rent, the rent was held to involve a simple contract debt and the part-payment amounted to a promise in writing to pay the remainder. When the Bill was being drafted it was decided to leave the law as it was, and this was the object of sub-sections (2) and (3) of Section 53. On going into the matter more fully, we are satisfied that the existing law is not sound in principle and ought to be changed. This we propose to do in the present amendment coupled with amendments Nos. 71 and 72.
I think I ought to mention that each instalment, whether of a rentcharge, conventional rent or interest, is a separate debt and part-payment will apply only in respect of the remainder of the instalment due. Part-payment of one debt does not involve part-payment of another; and the same is true for acknowledgment. An acknowledgment by a person that he did not "pay the rent" on the last gale day is certainly not an acknowledgment that he did not pay it three gale days ago, and it would be little short of grotesque to treat it as such. The same applies to an instalment of a rentcharge. Similarly, an acknowledgment by a person that he failed to pay a gale of a conventional rent or of a rentcharge cannot be said to be an acknowledgment that his predecessor had failed to pay a previous instalment. I am speaking of acknowledgment of the actual debt in question. Acknowledgment of title to the rentcharge is a different matter. A gale of a rentcharge is not the rentcharge itself. The rentcharge is a charge on the lands and the payments due on each gale day are the fruits of that charge. A rentcharge is an incorporeal hereditament and the owner of it has an estate of inheritance in it. He can enforce his rights against the lands and he can have the court declare that the rentcharge is properly attached to the lands.
I have gone into this matter at some length in order that there may not be any confusion as to what it proposed in the Bill and to show the clear distinction between a rentcharge as a right over land and a rentcharge (i.e. the gale of a rentcharge), as an ordinary debt arising out of that right. The distinction is maintained in the Bill. For instance, for the purpose of the recovery of land, land includes a rentcharge, because there what is meant is the estate in or the title to the rentcharge. In the case of the recovery of debts, rentcharge must of course mean a gale of the rentcharge, which is a debt involving a liquidated sum. Where there are a number of gales of a rentcharge or conventional rent due, the question of the appropriation of part-payments not made in respect of any gale arises, and we propose to deal with this question in amendment No. 78.
Amendment agreed to.
I move amendment No. 52:—
To add to the section the following paragraph:—
"( ) references to a mortgagee who is by virtue of the mortgage in possession of any mortgaged land shall include references to a mortgagee who has obtained possession of the mortgaged land by virtue of an order of a court;".
This is to ensure that the provisions in the Bill as to acknowledgment and part-payment will cover the case of a mortgagee in possession by order of the court.
Amendment agreed to.
Question proposed: "That Section 38, as amended, stand part of the Bill."
The same point arises here as I made before. Although I appreciate, as the Attorney-General has told me, that this expression, "the date on which the matter arose" has been enshrined before, it does seem to me, when we are revising statutes, that we might be able to tie it down more exactly with regard to the right of action in account.
The phrase the Deputy is speaking of is also in Section 11 (3). We shall look into the matter.
Yes.
Question put and agreed to.
Section 39 agreed to.
SECTION 40.
I move amendment No. 53:—
In sub-section (1) (e), page 20, line eight, to delete "thereof" and substitute "of penalty or forfeiture, recoverable.
Amendments Nos. 53 and 54 go together. Sub-section (1) of Section 40 provides for the extension of the limitation period in the case of disability, but we want to provide that this extension is not to occur in the case of actions for a penalty or forfeiture unless the action is brought by the party who suffers damage. Actions to recover penalties or forfeitures are dealt with in Section 11 (6) of the Bill, and the period of limitation is to be two years. The only field of operation of this sub-section is the action by the common informer. Penalties or forfeitures recoverable by the Revenue Commissioners are excluded from the Bill by Section 3 (2) and so are ordinary criminal proceedings by reason of the definition of "action," Section 2 (1). Further, Section 11 (6) (a) provides that a "penalty" does not include a fine to which any person is liable on conviction of a criminal offence.
We think it only reasonable that, where a common informer does not suffer from the act in question, the disability rule should not apply. When a suitable opportunity arises we hope to rid our law completely of the common informer.
Amendment agreed to.
I move amendment No. 54:—
In sub-section (1) (e), page 20, line ten, to delete "an aggrieved person" and substitute "the party grieved".
Amendment agreed to.
I move amendment No. 55:—
In sub-section (2), page 20, before paragraph (b), to insert the following new paragraph:—
( ) For the purposes of paragraph (a) of this sub-section, "parent" in relation to a person under a disability means his father, mother, grandfather, grandmother, stepfather or stepmother, notwithstanding that the relationship is illegitimate or in consequence of adoption under the Adoption Act, 1952 (No. 25 of 1952).
This is a drafting amendment. We are simply putting paragraph (c) of sub-section (2) after paragraph (a) where it more logically belongs.
Could the Attorney-General explain the effect of giving the definition "grandfather" or "grandmother" to a "parent" in relation to sub-section (2) (a) of Section 40? Does it mean that if a person is under a disability and is in the custody of a grandparent, disability will not arise?
Yes, in the case of personal injuries actions.
Is the effect of that going to be that a person who will be in the custody of a grandparent will be excluded from this section for certain actions.
It means that; yes.
I wonder is that a wise decision to take? It is only a doubt I have. I have no objection to. Section 40 (2) (a) but I would like the Attorney-General to look at the effect of this amendment. There does seem to be some reason for this provision when the child is in the custody of its parents but it is conceivable that there might be some question of hardship arising if the custody of a grandfather or grandmother is to be the custody of the parent.
We shall consider the Deputy's point.
Amendment agreed to.
I move amendment No. 56 which is consequential on amendment No. 25:—
In sub-section (2), page 20, to delete paragraphs (b) and (c) and substitute the following new sub-section:—
( ) In the case of actions for damages for slander, sub-section (1) of this section shall have effect as if for the words "six years" there were substituted the words "three years".
Amendment agreed to.
I move amendment No. 57:—
To add to the section the following new sub-section:—
( ) In the case of—
(a) an action to recover an amount recoverable by a tort-feasor under Section 4 or 5 of the Tortfeasors Act, 1951 (No. 1 of 1951), or
(b) an action to recover a penalty or forfeiture, or a sum by way of penalty or forfeiture, recoverable by virtue of any enactment where the action is brought by the party grieved,
sub-section (1) of this section shall have effect as if for the words "six years" there were substituted the words "two years".
This is a contribution matter again.
Amendment agreed to.
Section 40, as amended, put and agreed to.
Section 41 agreed to.
SECTION 42.
I move amendment No. 58:—
In sub-section (1), page 20, lines 46 and 47, to delete "(other than a foreclosure action)".
We propose to delete all references to foreclosure.
Major de Valera
It is automatic.
Amendment agreed to.
Section 42, as amended, put and agreed to.
SECTION 43.
I move amendment No. 59:—
In page 21, before Section 43, to insert the following new section:—
( ) Where—
(a) the right of a mortgagee of land to bring an action to recover the mortgaged land has accrued, and
(b) the person by whom the mortgage debt is payable acknowledges the right to the debt, the right of action shall be deemed to have accrued on and not before the date of the acknowledgment.
This is a drafting amendment. We want to cover specifically the case where the mortgagee brings an action to obtain possession of the land and the mortgagor acknowledges the debt. As I mentioned in dealing with amendment No. 3, it is desirable to have definite provisions in the Bill in regard to the various actions which can be taken by a mortgagee.
Amendment agreed to.
I move amendment No. 60:—
In page 21, before Section 43, to insert the following new section:—
( ) Where—
(a) the right of an incumbrancer of land to bring an action claiming sale of the land has accrued, and
(b) the person by whom the debt secured by the incumbrance is payable acknowledges the right to the debt,
the right shall be deemed to have accrued on and not before the date of the acknowledgment.
This section is designed to cover the case of an incumbrancer who claims sale of the land. "Incumbrancer" includes a mortgagee, a registered chargeant and an ordinary chargeant. Where an ordinary charge is under seal, the chargeant has the power of sale given to a mortgagee by the Conveyancing Act, 1881, where the mortgage instrument is under seal. Under Section 40 of the Registration of Title Act, 1891, the instrument of charge in the case of a registered charge has the same effect as a deed of mortgage. The power of sale is, of course, different from the right to possession. It is only where there is a conveyance of title that a right to possession arises, though there is an exception to this provided for in the case of a registered chargeant under Section 13 of the Registration of Title Act, 1942. As I have explained in dealing with a previous amendment, a registered chargeant can obtain possession from the court by applying in a summary manner. He is, however, not entitled as of right to possession in the same way as a legal mortgagee is, and the court acts under Section 13 of the 1942 Act only if it so thinks proper. An equitable mortgage arising, for instance, by deposit of title deeds does not give a right to possession, nor does it give a right to sale. Rights to possession and sale are important questions in the case of all mortgages and charges as will be seen from the decision of the Supreme Court in Bank of Ireland v. Feeney (1930) I.R. where it was held that there was no right to possession although the instrument, which created an equitable charge, contained a covenant by the borrower declaring himself a trustee of the holding for the lender.
Acknowledgment in the case of an action for possession is covered by Section 42 of the Bill. As regards an action for sale, it is proposed to cover it by the new section contained in this amendment.
Acceptance of this amendment involves the deletion of Section 43 of the Bill which purports to refer to foreclosure.
Major de Valera
It means the section goes.
Section 43 is deleted.
Amendment agreed to.
Section 43 deleted.
Section 44 agreed to.
SECTION 45.
I move amendment No. 61:—
In paragraph (a), page 21, lines 17 and 18, to delete "or other liquidated pecuniary claim".
The two amendments, Nos. 61 and 62, go together.
Amendment agreed to.
I move amendment No. 62:—
In paragraph (b), page 21, line 19, to delete "claim" and substitute "debt".
Amendment agreed to.
Section 45, as amended agreed to.
Sections 46 and 47 agreed to.
SECTION 48.
I move amendment No. 63:—
In sub-section (1), page 21, lines 37 and 38, to delete "or mortgaged personal property".
It is proposed to delete the words "or mortgaged personal property" from Section 48, which deals with the effect of acknowledgment on persons other than the maker. The section cannot apply to mortgaged personalty in the possession of the mortgagor, because the action of foreclosure does not lie in Ireland. If the property is in the possession of the mortgagee, acknowledgment does not arise because we are not proposing to provide for any statutory period for the right to redeem a mortgage of personalty. We are doing this deliberately because of the practical difficulties involved. For instance, where a customer of a bank charges securities in favour of the bank to secure an overdraft, the securities would be lodged in the bank and an equitable mortgage created and they would, in a lot of cases, remain charged indefinitely to cover advances from time to time. Unless the bank acknowledged the title of the customer, the effect of a period of limitation would be to extinguish the right to redeem. It is because of this that Section 31 of the Bill covering the limitation of redemption actions refers only to land.
A mortgagee of land entitled to possession does not as a rule take possession of the land, except in order to enforce the mortgage debt. A mortgagee of personalty, however, would normally have possession of the mortgaged property from the beginning as possession by him would be inherent in the transaction. We have made special provision for charges on future interests and insurance policies in Sections 32 (3) and 33 (3) so that where a sum is charged on, say, an insurance policy the period of limitation will not begin to run until the policy matures. Otherwise, the mortgagee (not in possession) might be forced to have the policy realised before it matured in order to obtain his money. In most cases he would prefer to have the policy kept alive; and this is, generally, what the parties contemplate.
Amendment agreed to.
I move amendment No. 64:—
To delete sub-section (3), page 22, and substitute the following new sub-section:—
( ) Where there are two or more mortgagors of land, and the title or right to redemption of one of the mortgagors is acknowledged, the acknowledgment shall be deemed to have been made to all the mortgagors.
This is a drafting amendment consequential on amendment No. 63. We want to make it clear that Section 48 (3) applies only to mortgages of land. Acknowledgment of title would not arise in the case of personalty.
Amendment agreed to.
I move amendment No. 65:—
In sub-section (4) (a), page 22, lines 23 and 24, to delete "or other liquidated pecuniary claim".
Amendment agreed to.
I move amendment No. 66:—
In sub-section (4) (b), page 22, to delete all words from "An" in line 26 down to and including "any" in line 28, and substitute—
An acknowledgment of a statute-barred debt shall not bind any.
Amendment agreed to.
Section 48, as amended, agreed to.
Section 49 and 50 agreed to.
I move amendment No. 67:—
In page 22, before Section 51, to insert the following new section:—
( ) Where—
(a) the right of a mortgagee of land to bring an action to recover the land has accrued, and
(b) the person in possession of the land or the person liable for the mortgage debt makes any payment in respect thereof, whether of principal or interest,
the right shall be deemed to have accrued on and not before the date of payment.
Amendment Nos. 67 and 68 go together and deal, respectively, with part-payment in the case of a mortgagee's action to recover land and with part-payment in the case of the right of an incumbrancer of land to bring an action claiming sale of the land. I have dealt with those two types of action already in discussing amendments Nos. 3, 36, 37, 59 and 60. We propose to make specific provisions for part-payment in the two cases similar to those proposed in respect of acknowledgment in amendments Nos. 59 and 60.
Acceptance of amendment No. 68 involves the deletion of Section 51 of the Bill referring to foreclosure actions.
Amendment agreed to.
I move amendment No. 68:—
In page 22, Section 51, to insert the following new section:—
( ) Where—
(a) the right of an incumbrancer of land to bring an action claiming sale of the land has accrued, and
(b) the person in possession of the land or the person liable for the debt secured by the incumbrance makes any payment in respect thereof, whether of principal or interest,
the right shall be deemed to have accrued on and not before the date of payment.
Amendment agreed to.
Acceptance of this amendment means that Section 51 is deleted.
Section 51 deleted.
SECTION 52.
I move amendment No. 69:—
To delete paragraph (b), page 23, and substitute—
(b) the mortgagee receives any payment from the mortgagor in respect of the principal or interest of the mortgage debt,.
It is a drafting amendment. The new wording puts the matter in a more logical way.
Amendment agreed to.
Section 52, as amended, agreed to.
SECTION 53.
I move amendment No. 70:—
In sub-section (1) (a), page 23, lines 10 and 11, to delete "or other liquidated pecuniary claim".
Again, this is a drafting amendment, consequential on amendment No. 46.
Amendment agreed to.
I move amendment No. 71:—
To delete sub-section (2).
I referred to this earlier when speaking on amendment No. 51. We think that part payment should apply to a sale of conventional rent and to a sale of a rentcharge.
Amendment agreed to.
I move amendment No. 72:—
To delete sub-section (3), page 23, and substitute the following new sub-section:—
(3) Payment of interest in whole or in part shall for the purposes of this Chapter be treated as a payment in respect of the principal debt.
This amendment has a twofold object. First of all, we want to overrule the existing law that part-payment of an instalment of interest does not extend the period for claiming the remainder of the instalment. I have explained the reasons for our view in discussing amendment No. 51. Secondly, we want to correct a casus omissus in the second branch of Section 53 (3) as at present drafted. The effect of the sub-section in the Bill is to provide that a part-payment of a gale of interest is to be treated as a payment in respect of the principal debt, that is for the purpose of keeping the principal debt alive. Nothing is said as to the effect of the payment of a full gale of an instalment of interest in keeping the principal debt alive, and we want to provide for this case also.
The sub-section as now drafted in the amendment will, it is hoped, achieve what we have in mind.
Amendment agreed to.
Section 53, as amended, agreed to.
Section 54 agreed to.
SECTION 55
Question proposed: "That Section 55 stand part of the Bill."
May I make a suggestion purely from the point of view of making the section clearer? Instead of stating, as we see in this section,
"A payment—
(a) may be made by the agent of the person specified in that behalf in Section 51, 52, 53 or 54 (whichever is applicable) of this Act;..."
Perhaps the Minister would consider bringing in an amendment specifying the persons instead of the sections? My remarks also apply to Section 47 which states:—
"(1) Every acknowledgment shall be in writing and signed by the person making the acknowledgment.
(2) An acknowledgment—
(a) may be made by the agent of the person specified in that behalf in Section 42, 43, 44, 45 or 46 (whichever is applicable) of this Act, and...."
It is purely from the point of view of practitioners and persons who have to deal with this Act that I make this suggestion. It might be clearer if, in the drafting, the names of persons were specified rather than a reference to the sections.
I shall certainly have a look at these provisions again.
Question put and agreed to.
SECTION 56.
I move amendment No. 73:—
In sub-section (1), page 23, lines 38 and 39, to delete "foreclose or otherwise".
Amendment agreed to.
I move amendment No. 74:—
In page 23, before sub-section (2), to insert the following sub-section:—
( ) Where—
(a) two or more mortgagees of land are by virtue of the mortgage in possession of the land, and
(b) one only of the mortgagees (in this sub-section referred to as the recipient) receives any payment in respect of the principal or interest of the mortgage debt,
the following provisions shall have effect:—
(i) the payment shall bind only the recipient and his successors and shall not bind any other mortgagee or his successors;
(ii) if the recipient is entitled to a part of the mortgaged land and not to any ascertained part of the mortgaged debt, the mortgagor shall be entitled to redeem that part of the land on payment, with interest, of the part of the mortgage debt which, immediately before the recipient received the payment, referred to in paragraph (b) of this sub-section, bore the same proportion to the whole of the debt as the value of that part of the land bears to the whole of the land, less the amount of the payment.
There is a rather confusing matter here. The object of this amendment is to cover the case where two or more mortgagees are in possession of land and one only receives a part-payment in respect of the mortgage debt. It is proposed that the payment shall bind only the mortgagee recipient and his successors. It is also proposed that, where the recipient is entitled to a part of the mortgaged land, but not to any ascertained part of the mortgage debt, the mortgagor will be entitled to redeem that part of the land if he pays so much of the mortgage debt as bears the same proportion to the whole of the debt as the value of that part of the land bears to the whole of the mortgaged land, less the part-payment. An example will, perhaps, illustrate the effect of what is proposed in (b) (ii) of the sub-section in the amendment. If there are two mortgagees, X and Y, in the possession of land worth £2,400 in respect of a mortgage debt of £1,200, and if Y is entitled to part of the land worth £800 but is not entitled to any particular portion of the £2,400, the following will be the position if A (the mortgagor) makes a part-payment of £150 to Y:— A will be entitled to redeem Y's part of the land if he pays Y (whose land is worth one third of the whole land) one third of the debt or £400, less £150 which he has part paid. In other words, he will be able to redeem Y's land if he pays Y £250.
The proposed sub-section will correspond to Section 48 (2), which deals with acknowledgment where there are two or more mortgagees and one only acknowledges the mortgagor's title or his equity of redemption. The existing provision of the law is to be found in Section 7 of the Real Property Limitation Act, 1874 (replacing Section 28 of the Real Property Limitation Act, 1833), but the provision only covers acknowledgment. We think that part-payment should be covered as well, as a mortgagee in possession who receives a part-payment should be in the same position in all cases as if he made an acknowledgment, that is so far as the mortgagor's equity of redemption is concerned.
I can understand well enough the system provided for by the sub-section. It seems to work out fairly. However, it quite escapes me what justification there is for the whole sub-section. Whatever the state of the law may have been before the sub-section, I cannot see why, where two mortagees were in possession and where payments were made to one of them, the other could still get title against the mortgagor. Presumably the section is likely to apply in the case of a Welsh mortgage or something similar. It may be that there is a very sound reason for all this, but I cannot see it.
I support Deputy Finlay's remarks. Mortgagees in possession are not very common. At the same time, we have to legislate for such a contingency. If a person makes a payment to one of two mortgagees, it seems to me that he presumes it would be a valid payment and would, in fact, stop the statute running against both mortgagees. I should like the Minister to consider this question again, in the light of what could happen in everyday life.
Major de Valera
The word "receives" gives point to that argument and the Minister might look into the matter.
We shall.
Amendment agreed to.
I move amendment No. 75:—
In page 23, before sub-section (2), to insert the following new sub-section:—
( ) Where there are two or more mortgagors of land, and the mortgagee, being in possession of the land, is paid any sum in respect of the principal or interest of the mortgage debt by one of the mortgagors, the payment shall be deemed to have been made by all the mortgagors.
The object of this amendment is to provide that where one or more of two mortgagors makes a part-payment, the payment shall be deemed to have been made by all the mortgagors. The effect of this will be to preserve the equity of redemption of all the mortgagors. There is, at present, a similar provision in regard to acknowledgment in Section 7 of the Real Property Limitation Act, 1874, and that provision is reproduced in Section 48 (3) of the Bill. As I indicated in discussing the previous amendment, we think that, in so far as the mortgagor's equity of redemption is concerned, the same law should apply in the case of a part-payment as applies in the case of an acknowledgment.
Major de Valera
That is clear enough.
This amendment reinforces what Deputy Finlay and myself were saying, that, if one mortgagor makes payment, it is binding on both.
Major de Valera
The law always leans strongly in favour of the equity of redemption. There is logic enough in the section.
Amendment agreed to.
I move amendment No. 76:—
In sub-section (2) (a), page 23, lines 42 and 43, to delete "or other liquidated pecuniary claim".
Amendment agreed to.
I move amendment No. 77:—
In sub-section (2) (b), page 23, to delete all words from "A" in line 46 down to and including "bind" in line 49, and substitute——
"(b) A payment in respect of a statute-barred debt shall not bind."
Amendment agreed to.
Section 56, as amended, agreed to.
SECTION 57.
I move amendment No. 78:—
In page 24, before Section 57, to insert the following new section:—
( ) (1) Where—
(a) there exists a number of debts, and
(b) the person liable therefor (in this section referred to as the debtor) makes any payment, whether on account or generally, to the person to whom he is liable (in this section referred to as the creditor), and
(c) neither the debtor nor the creditor appropriates the sum paid to any particular debt or debts,
the following provisions shall have effect:—
(i) if some of or all the debts are not statute-barred debts, the payment shall, for the purposes of this Chapter, unless the circumstances in which it was made indicate otherwise, be deemed to be appropriated pari passu in respect of each of the debts which are not statute-barred debts.
(ii) if all the debts are statute-barred debts, the payment shall, for the purposes of this Chapter, unless the circumstances in which it was made indicate otherwise, be deemed to be appropriated pari passu in respect of each of the debts.
(2) Nothing in sub-section (1) of this section shall, where the debtor does not appropriate, operate to prevent the creditor from appropriacting a payment made on account or generally to a particular debt or to particular debts or to all the debts (whether statute-barred debts or not), but such appropriation shall not by reason only of its being made by the creditor operate to make the payment a payment for the purposes of this Chapter in respect of such debt or debts, unless the circumstances in which the payment was made by the debtor so indicate.
(3) Where, under Section 16 of the Land Law (Ireland) Act, 1896, a tenant against whom an ejectment has been brought pays two years' rent, the payment shall, for the purposes of this Chapter, unless the circumstances in which it was made indicate otherwise, be deemed to be a payment in respect of all arrears which, at the date of the commencement of the proceedings in the ejectment, are not statute-barred debts.
This is a matter on which there may be some controversy. The amendment is a lengthy one. It has to do with the question of payment in respect of debts and the matter is not as well covered by law as most people feel. This is an effort to get things into a correct line. The proposal contained in the amendment is an attempt to put into statutory form what we think the law is and ought to be where there are a number of debts and a part-payment is made generally. The law is not very clear in some respects at the moment and we think it better to take this opportunity to clarify it. Though part-payment where there are a number of debts must arise fairly often in practice, not very many cases are to be found in the reported judgments. Nash v. Hodgson referred to in the sidenote decided that where a number of debts are owed, some statute-barred and some not, and the debtor makes a payment to the creditor, it is, in the absence of further evidence, to be concluded that the payment is not on account of a debt that is statute-barred. This seems logical enough, because the debtor is deemed to be paying only in respect of what he is legally bound to pay. Section 9 of the Mercantile Law Amendment Act, 1856 (now to be replaced by Section 11 (3) of the Bill), provides that “no claim in respect of a matter which arose more than six years before the commencement of such action or suit shall be enforceable by action or suit by reason only of some other matter of claim comprised in the same account having arisen within six years next before the commencement of such action or suit.” In Mills v. Fowkes, which was decided before Nash v. Hodgson and which is also referred to in the sidenote, it was held that, though the creditor could only apply a payment so as to revive his right to sue on a statute-barred debt, yet, as there was no appropriation by the debtor, the creditor might apply the payment in satisfaction of the statute-barred debt.
We must distinguish between appropriation in satisfaction of a debt and appropriation for the purposes of the Statute of Limitations. The ordinary law of appropriation is that if the debtor does not appropriate, the creditor may appropriate. Mills v. Fowkes, however, decides that though the creditor may appropriate to an old debt, the right of action for which is barred, such an appropriation will not operate to take the remainder of the debt out of the Statute. Nevertheless, the circumstances of each particular case must be inquired into. In another case, referred to in Friend v. Young (1697) 2 Ch., the law was stated as follows:
"The principle that the payment must be such as to be an acknowledgment of the debt is right and not new. I do not, however, by any means assent to the doctrine that, where there are two debts existing, and a payment is made, not specifically appropriated to either, there is necessarily no sufficient evidence of a payment on account of either of those debts to take it out of the Statute of Limitations. It must depend on the special circumstances of each case. In general, there would be evidence to go to the jury of a payment on account of both debts."
In Friend v. Young a payment was made “on account” with reference to a statement of account which included as part of it statute-barred items, and there did not exist a balance equal to the payment made on account either on the face of the statement of account or in fact. It was held that, in the circumstances, the payment covered the statute-barred items and amounted to an acknowledgment which made them recoverable.
Boswell's Case (1906) 2 Ch. does not specifically decide whether, when a payment on account is made by the debtor and there has been no appropriation by either the debtor or the creditor, the law will appropriate it to the earliest of the items which at the date of the payment were not statute-barred, or will treat it as attributable pari passu to all such items so as to take them out of the operation of the statute, but the matter was referred to in the case. There are, I am afraid, conflicting dicta on the subject in some of the other cases.
I think I have said enough to show that a very useful purpose would be served by having a statutory provision dealing with the matter of appropriation in its various aspects. What we propose to provide is that, where none of the debts is statute-barred, a payment on account or generally shall for the purpose of the statute be deemed to be made pari passu in respect of each debt so that the period of limitation will begin to run again in respect of each debt. If all the debts are statute-barred, the same result will accrue. If, however, some of the debts are statute-barred and some not, the payment will be a payment in respect of each of the debts which are not statute-barred. There will, however, be the overriding consideration in all cases that the circumstances of the case may indicate what is to happen.
Sub-section (2) proposes to preserve the creditor's legal right to appropriate in satisfaction of a particular debt or debts, but this appropriation will not, ipso facto, take the case out of the statute, unless, again, the circumstances of the payment so indicate.
Sub-section (3) is designed to cover cases like Eyre v. Coen referred to in the sidenote. Section 16 of the Land Law (Ireland) Act, 1896, allows a tenant to pay two years' arrears of rent to prevent himself being ejected. The balance due can then only be recovered as an ordinary debt and not by ejectment. In Eyre's Case, the landlord appropriated the payment to the earlier rent so as to prevent the statutes from operating and gave a receipt which the tenant accepted for this rent. It was held that the appropriation was, in the circumstances of the case, good. We propose to provide that the payment of the two years' rent shall be effective in respect of all the arrears not statute-barred, provided the circumstances do not indicate to the contrary.
We have given much consideration and study to this whole question of part-payment where there are a number of debts. We are satisfied that the proposal in the amendment follows the line which can generally be drawn through all the cases and that it is both a fair and logical way to legislate for a problem which can be of much significance in practice. We are, however, willing to consider between this and Report Stage any reasonable suggestions for the improvement of the provisions suggested.
Major de Valera
We have considered this matter and I think the amendment, as drafted, is good enough.
If there are any other suggestions, they could be looked into and studied before the Report Stage.
Major de Valera
The important thing is simplicity.
I think it is an extremely useful section. It is very useful that the law will be clarified on this very important matter. The effect of sub-section (2) in the proposed draft apparently is that where the debtor himself does not appropriate, the creditor will not be prevented from appropriating a payment made on account or generally in connection with a particular debt. I frankly feel that a lot of difficulty could arise from the words "unless the circumstances in which the payment was made by the debtor so indicate". In the earlier part of this section, it is stated that the sub-section will arise where the debtor himself does not appropriate and it may be hard to see what circumstances would arise in which the debtor himself does not appropriate.
Major de Valera
You are merely trying to keep the present position where you infer——
You are requiring then the circumstances of the payment to be investigated where there has not been, in fact, any specific appropriation by the debtor. I would be against making general payments revive statute-barred debts. It strikes me that you might put the onus of proof on the creditor.
The Minister might consider between this and the next stage the advisability of fixing, in some way, the method by which appropriations on the part of the creditor might be proved. Where you permit a creditor to appropriate in any way he likes, I think you take away the force of paragraph (1) of sub-section (c). It is quite obvious that no creditor is going to let the effect of paragraph (1) come into operation, spreading the payments among the statute-barred debts only.
Major de Valera
It is only a matter of a drafting amendment to the two lines of sub-section (2). Will the Minister look into that by the Report Stage?
It seems to be strong enough. However, we will consider all the remarks made. This is an effort to have the law clarified. The debtor can always appropriate and we want to cover the case where he does not do so.
Would the Minister endeavour to clarify it in this sense— to make it hard for the creditor to prove that he has appropriated against the statute-barred debt? I think the onus should be put as strongly as possible on the creditor.
Amendment agreed to.
Section 57, agreed to.
Section 58 agreed to.
SECTION 59.
I move amendment No. 79:—
In sub-section (1), page 24, line 32, before "run" to insert "begin to."
This is a drafting amendment. The words "begin to" should be inserted before "run" in the third line of sub-section (1). By the way, "line 32" in the amendment should read "line 33."
Amendment agreed to.
Section 59, as amended, agreed to.
SECTION 60.
I move amendment No. 80:—
In page 24, lines 45 and 46, to delete the definitions of "arbitration,""arbitration agreement" and "award."
This is a drafting amendment. Amendment No. 4 proposed to transfer the definitions of "arbitration," etc., to Section 2 of the Bill. There are references to arbitration in Section 11 of the Bill and the definitions in the matter should come at the beginning of the Bill.
Amendment agreed to.
Section 60, as amended, agreed to.
Sections 61 to 67, inclusive, agreed to.
SCHEDULE
I move amendment No. 81:—
In page 26, to delete Part I, and to substitute:
PART 1.
Acts of the Parliament of Ireland.
|
Session and Chapter. |
Title. |
Extent of Repeal. |
|
(1) |
(2) |
(3) |
|
6 Ann. c. 10 (Ir.). |
An Act for the amendment of the law and the better advancement of justice. (1707). |
Section 17 so far as unrepealed. |
|
8 Geo. 1.c. 14 (Ir.). |
An Act for the more effectual quieting of possessions, and preventing vexatious suits at law. (1721). |
The whole Act so far as unrepealed. |
This is a drafting amendment. We propose that every statute dealing with limitation should be totally repealed. We are simply adding to Part I of the Schedule a provision in an old Act of 1721 dealing with specialty debts. The amendment when it refers to 8 Geo. 1. C. 14 (Ir.) should refer to 8 Geo. 1. C. 4(Ir.).
I think the intention is that all other Statutes of Limitation should be replaced. Am I right in thinking that the Local Government Act which had the limitation on the right to sue a local authority would still be in existence?
I understand it was repealed.
Then the matter does not arise.
Amendment altered, by leave, by the deletion of "8 Geo. 1. C. 14.(Ir.)" and the substitution of "8 Geo. 1. C. 4 (Ir.)".
Amendment, as altered, agreed to.
I move amendment No. 82:—
In Part II, page 26, between the entries relating to 23 & 24 Vic. c. 38 and 37 & 38 Vic. c. 57, to insert—
"
|
33 & 34 Vic. c. 46. |
The Landlord and Tenant (Ireland) Act, 1870. |
In section 50, the words ‘No arrears of any annuity charged on land in pursuance of this Act shall be recoverable after the expiration of two years from the date at which the sum in arrear became due;’ |
"
This is again a drafting amendment. We propose to repeal a provision in the Landlord and Tenant Act, 1870. This was the first Land Purchase Act and annuities thereunder are payable to the Office of Public Works. The period of limitation is two years. No period is prescribed for annuities payable to the Land Commission, but a period of six years is being provided for in Sections 26 and 28 of the Bill. In the interest of uniformity, it is desirable that the period should be the same for all annuities. The amount of money collectable as annuities under the 1870 Act is now very small. The amendment will mean that a six-year period will apply to them.
Amendment agreed to.
Schedule, as amended, agreed to.
Title agreed to.
Bill reported, with amendments.
Major de Valera
When is it proposed to take the next stage?
Quite a lot of material has been offered here. I hope it has been understood. It can be studied when the text of the Official Report is in hands. That will not be until some day next week, so it might be as well to leave it for a fortnight or three weeks.
Report Stage ordered for Wednesday, 5th December, 1956.
Major de Valera
Does that mean that we have no further business in the House to-day?
The only business ordered was Item No. 6.
Major de Valera
The Government has no business to bring forward to the Dáil to-day.
I have nothing to say about that.
Major de Valera
The Dáil is going to adjourn because the Government has no business for it. Is that the position? Is the Dáil going to adjourn now because the Government has no business to bring before the House?
There is a motion on the Adjournment.
I think, Sir, I am entitled to reply to that question. The Government brought in yesterday two Second Readings of very important Bills, the Civil Service Regulation Bill, 1956, and the Civil Service Commissioners Bill, 1956. There was, too, a piece of legislation which has been shouted for for more than 20 years back. When I was in Industry and Commerce, I got an urgent demand to set up a tribunal to inquire into coast protection. I set up that tribunal in the early days of 1932. Now there have been all sorts of agitation around the country, particularly in two counties in the east and west. Yesterday, we brought in a piece of legislation to deal with that problem and it went through this House quicker than any coast erosion, even allowing for the 30 years' gap. The Government, in fact, brought in so much business that the Opposition was not able to cope with it.
Major de Valera
We have dealt with all the business.
Yes, in the way in which it was dealt with.
Major de Valera
It is no wonder the Government is in the state it is, and the country as well, unfortunately.