It is mentioned in this clause that the Under-Sheriff is to take a certain form of declaration. I suppose it is too early yet to ask the Minister to give us that form.
ENFORCEMENT OF LAW (OCCASIONAL POWERS) BILL—COMMITTEE.
The Seanad went into Committee on the Enforcement of Law (Occasional Powers) Bill.
Clause 1.—Appointment of Under-Sheriffs, was agreed to, and added to the Bill.
CLAUSE 2.
(1) From and after the passing of this Act it shall not be obligatory upon any Under-Sheriff to employ any bailiff to assist him in the execution of a writ offieri facias or writ of habere or to employ any bailiff appointed under Section 5 of the Civil Bill Courts Procedure Amendment Act (Ireland), 1864 (27 & 28 Vict., ch. 99), to assist him in the execution of his duties under that Act, but in lieu of or in addition to such bailiffs it shall be lawful for any Under-Sheriff to employ such and so many suitable persons as he shall think fit to assist him in the execution of any or every writ of fieri facias or writ of habere and of any or every decree (whether for debt, possession of lands or otherwise) of a Civil Bill Court.
(2) Any person employed by an Under-Sheriff as bailiff under this section may be employed at a weekly or other wage to assist him generally in the execution of such writs and decrees as aforesaid, or may be employed specially to assist the Under-Sheriff in the execution of a particular writ or decree.
(3) Wherever persons are employed by an Under-Sheriff under this section to assist him generally in the execution of such writs and decrees as aforesaid the number and rate of remuneration of such persons (to be paid out of moneys provided by the Oireachtas) shall be subject to the approval of the Minister, and the sanction of the Minister for Finance.
(4) Wherever any persons are employed specially by an Under-Sheriff under this section to assist him in the execution of a particular writ or decree the number and remuneration of such persons shall be in the discretion of the Under-Sheriff.
(5) Every person employed under this section by an Under-Sheriff to assist him in the execution of a writ offieri facias or a writ of habere shall have all the powers which are by law vested in a bailiff employed by an Under-Sheriff for that purpose, and every person employed under this section by an Under-Sheriff to assist him in the execution of any decree of a Civil Bill Court shall have all the powers which are by law vested in a bailiff appointed under the Civil Bill Courts Procedure Amendment Act (Ireland), 1864 (27 & 28 Vict., ch. 99).
AN CATHAOIRLEACH
Are you moving any amendment, because that is the way the matter should be raised?
Sir THOMAS ESMONDE
Quite so. Of course I could move the omission of the sub-section, but I do not intend to do so now. I think, however, we are going rather fast. Are we now on Clause 2?
AN CATHAOIRLEACH
Yes. Certain amendments have been handed in, and, of course, when I come to the sections to which these amendments apply I will mention them. I have no amendments until I reach Section 6.
Sir THOMAS ESMONDE
Is it open to me to move an amendment before we come to Clause 6?
AN CATHAOIRLEACH
It is very awkward that no notice is given.
Sir THOMAS ESMONDE
I agree; but this is a very important Bill. However, I take it it will be the duty of the Minister to draw up a proper declaration.
Sub-section 2 was then put, and agreed to.
Sub-section 3 was agreed to.
I should like to draw attention to a matter in connection with Sub-section 4 of Clause 2. That Sub-section gives power to the Under-Sheriff to employ assistants to any number and to decide on their remuneration. These matters are left to the discretion of the Under-Sheriff. That is a very sweeping clause. The debtor will have to pay the charges and expenses, and these Under-Sheriffs are not the ordinary Sub-Sheriffs who are accustomed to do this work. They are special Sheriffs, and they may appoint a regular possé of people under this system. In the country there will always be people appointed who are not very highly qualified men.
AN CATHAOIRLEACH
We must keep these things in order, and Senator Moore is not in order except he moves an amendment.
Then I will move after the word "Sheriff" to insert the words "subject to the final approval of the Minister for Home Affairs." The meaning of that is that the Sheriff will not be in the position uncontrolled and entitled to employ a large possé of people, for whom the unfortunate debtor would have to pay.
AN CATHAOIRLEACH
I think it will be seen that you could not impose this task upon the Minister. It would be a most invidious task. I could understand the desire to have it referred, on the application of the debtor, to the County Court Judge, but to impose upon the Minister for Home Affairs the duty of taxing every Under-Sheriff's bill would be a hopeless matter.
Well, I would like somebody to do it, otherwise there may be wholesale hardship.
AN CATHAOIRLEACH
It is unfortunate if you wanted to bring about an alteration that you did not bring the matter forward in a considered amendment. If the Senator agreed it could be taken on the Report Stage. This Bill has been in the hands of members of the Seanad for over a week.
Yes, but now we are galloping through it, and unless you rule my amendment out I will move it.
AN CATHAOIRLEACH
I am not doing that. I am only pointing out how dangerous it would be to move amendments of that kind without notice.
I do not think my change is a very drastic one, but this is a very drastic clause. Indeed, the whole Bill is very drastic, and its operation should be watched very carefully.
AN CATHAOIRLEACH
I am not to be taken as dissenting from that. I am now only dealing with the matter of procedure, and if the Senator thinks this is of such importance he can bring it up at another stage.
Our position in regard to amendments should be made very clear. There is a good deal of misunderstanding. Personally I think that amendments should be handed in in writing before 3 o'clock, and that otherwise only verbal amendments should be taken, especially as they can be moved later on the Report Stage. If important amendments are proposed without notice it is impossible to know what they are, and they may lead to misunderstanding. They certainly will not lead to the efficiency of the Seanad. This Bill has been in the hands of Senators for over a week.
AN CATHAOIRLEACH
My recollection of our Standing Orders is, that there is power in the Chairman in special circumstances if he thinks an amendment is one of importance to allow it to be accepted for discussion, notwithstanding that notice is not given in time. That is a discretion I should like to be very sparing in exercising, because there is always great risk that if I were lax, serious and drastic amendments might be introduced with very little discussion I suggest that Senator Moore should consider this matter further, and if he wishes to amend the Bill let him bring his amendment up on Report.
Very well.
AN CATHAOIRLEACH
I am not at all saying the matter is not an important one. The motion is: "That Section 2 stand part of the Bill."
Sir THOMAS ESMONDE
This is an extremely important Sub-section, but in view of your ruling I will not attempt to discuss it now.
AN CATHAOIRLEACH
I want the Seanad to support me so far as is reasonably proper in seeing that our proceedings are regular. On the other hand, I am not in the least desirous of excluding discussion on any matter which any Senator thinks to be of vital importance, but we will get into hopeless difficulty if amendments of this kind are sprung on the Seanad when in Committee, when our procedure provides that due notice should be given, and that amendments should be in the hands of the Senators before asking them to discuss them.
Is it not in order to discuss a matter of this kind before the motion is put, even though there be no amendment?
AN CATHAOIRLEACH
I think so, but I was only dealing with the question of amendments.
My attention has been called to the fact that only certain writs are mentioned here. An Under-Sheriff has informed me that other writs reach Under-Sheriffs—writs of attachment and Crown writs—and it would be well to put in "or other writs" where necessary. This only specifies certain writs. In the second and third lines of Sub-section 5 the two classes of writs are mentioned.
AN CATHAOIRLEACH
Would it meet your purpose to substitute the words "or any writ"?
My point about that is, that this is a somewhat drastic temporary law, and it is called for to meet a special situation. I do not know enough to know what other types of writs there are. But we do not wish to extend these somewhat drastic powers beyond what we believe to be necessary to get the law and the execution of the law into operation once more. If the Sheriff has power to use these drastic powers to enforce certain types of writ I think the effect will be, without any extension of the existing powers, that he will be able to execute all other writs. As it was not felt necessary by the people consulted by the Minister for Home Affairs in drawing up this Bill to include writs other than those of fi-fa and habeas I would not advise the inclusion of the words suggested.
AN CATHAOIRLEACH
Perhaps the Minister would consider, before this Bill passes to the other House, whether it might not be considered useful to extend them to writs of attachment.
Yes.
Question put: "That Clause 2 stand part of the Bill."
Agreed.
AN CATHAOIRLEACH
The motion is "That Clause 3 stand part of the Bill."
Sir THOMAS ESMONDE
Is there any time of the day or night mentioned in this Bill at which these Sheriff's officers can go and make an entry?
AN CATHAOIRLEACH
So far as I understand the law on that subject is not altered. There is nothing in this Bill enabling seizures or executions to be carried out at any other hours than those provided in the existing law.
Sir THOMAS ESMONDE
May I ask what hours they are?
AN CATHAOIRLEACH
I am afraid you will have to ask me an easier one. Speaking from recollection I think the hours are from sunset to sunrise.
Sir THOMAS ESMONDE
If we were sure of that it would ease some of our anxieties.
AN CATHAOIRLEACH
You would know the time to be away from home.
Sir THOMAS ESMONDE
We must remember the times we are living in. I am not wishing to interfere with the Government in its legitimate sphere, but after all, there is such a thing as the liberty of the subject, and there are certain fundamental principles in the law under which we are living to which we must have regard.
AN CATHAOIRLEACH
It says "save in so far as it alters the existing law"; this Bill leaves it and its privileges untouched, and I do not think that there is anything so far as I know in this Bill which interferes with the existing law as regards the hours of seizures.
Sir THOMAS ESMONDE
I will ask the Minister to look into this point. The Minister seems to me to be as hazy on this subject as I am myself. You must think of the times we are living in. If it was possible for someone to force an entry into a house representing himself as a Sheriff's officer, which, as a matter of fact he was not, it would be a serious matter. Senators would realise the position in which the ordinary citizen would find himself.
Question put: "That Clause 3 stand part of the Bill."
Agreed.
AN CATHAOIRLEACH
The motion is: "That Clause 4 stand part of the Bill."
I would like to point out in Clause 4, and again in Clause 6, that it is provided that the Under-Sheriffs' officers must make out a list of chattels to be sold within 48 hours of the seizure, and, if practicable before, but later on the Bill says that within 24 hours he can sell these things. So he can really go into a place, seize the stock, sell it within 24 hours, and give the man an inventory 24 hours after the goods are sold.
AN CATHAOIRLEACH
That may be a reason for altering Section 6 when we come to it. Have you any objection to Clause 4?
I think it should be done within 24 hours. It seems to me very reasonable for an Under-Sheriff to make out a list within 24 hours; 48 hours is a long time, and, then, later on we come to 24 hours.
It is within 24 hours that he must notify.
But then he has sold already.
Take the case of seizing cattle on land. It may be necessary for the persons concerned in the seizure to avoid, say, the possibility of bloodshed, and it may be necessary to take the cattle immediately away. The people concerned in the seizure will have their energy occupied in the taking of the cattle to a place of safety. That might cause some delay in making out the itemised inventory. That might be made out at some distance from the scene of the seizure. Perhaps night-fall will come before the inventory is made out, and it may be necessary to send messengers to the person from whom the goods were seized, and 24 hours may be too short. At present there is no obligation, I believe, on an Under-Sheriff to supply an itemised inventory. This is a precaution introduced in view of the extended powers given to officers of the Court.
Question put: "That Clause 4 stand part of the Bill."
Agreed.
AN CATHAOIRLEACH
We now come to Clause 5.
I want to call attention to the fact that this clause would inflict untold hardship on people that this Bill is not designed to meet. As far as I see, this Bill is designed specially to meet the case of fraudulent debtors. It is not designed to meet ordinary debtors—people who get into debt through no fault of their own, and who are only going to be allowed goods to the value of £10. That would mean that a tradesman would be deprived of his means of livelihood. No tradesman could carry on his business with implements only valued for £10, not to speak of wearing apparel and furniture, to keep the house going. I think the Government ought to reconsider this clause. In 1840, £5 worth of goods was allowed. That is 80 years ago, and we all know that the value of money since then has increased four times. We are prepared to help the Government in framing a Bill to deal with fraudulent debtors— people who are not willing to pay their just and lawful debts. However, when you take into consideration the fact that many people will come in under this Bill, who are debtors through no fault of their own, owing to the abnormal conditions prevailing, I think it would be unjust and an outrage to deprive them even of the necessary household requirements to keep them going.
AN CATHAOIRLEACH
Perhaps the Minister would explain if, in extending the value up to £10 in this Bill, it applies to the previous items, or only tools and implements of trade?
I take it that it applies to all the previous items.
AN CATHAOIRLEACH
I think it was so intended.
So far as this clause of the Bill is concerned, it alters the law in favour of the honest debtor. Supposing the Seanad struck this clause out, the effect would be that the value of the goods exempt from seizure would be only £5, as at present. If this Bill was not introduced, and if we were dealing only with honest debtors, for whom no exceptional powers are required, they would be likely to have their goods seized, and there would only be exemption to the extent of £5. There was a discussion in the Dáil on this matter, and two amendments were proposed. One was that the old law should be restored, and that goods to the value of £5 should be exempt, and the other that the value should be £15. A compromise was effected, and a figure of £10 was agreed to. It is unlikely that any Under-Sheriff, unless there was an enormous quantity of bedding and tools, would seize down to the precise value of £10. It would be very hard for him, indeed, to go to that, and it was felt there was a safeguard here which would in practice work out in such a way as to leave actually more than £10 worth of goods untouched.
I think under present conditions the item of £10, which includes the necessary bedding and tools, would in some cases leave nothing in the house. I think the amount should be larger. If it only included tools I would be satisfied. If it includes bedding, I cannot agree.
Sir THOMAS ESMONDE
I think the Government might reconsider this point. Take the case of a farmer in arrears for purchase annuities, who, I imagine, is the type of person this Bill is supposed to deal with. Say he is in a tillage county. He has various articles of machinery, ploughs, harrows, and so forth. It would not take very long to take £10 worth from him, but even to the extent of £10 he might not, as a result, have the necessary machinery to work the farm. I think the Government should consider if the figure could not be extended, and the clause amended so that it would only apply in specific cases.
AN CATHAOIRLEACH
It would be a mistake to make the clause nugatory, and you will do so if you contemplate making "tools and implements" cover machinery. If it covers machinery, why not cover cattle, which are part of the implements of the trade, It seems to me you will be giving a bill of exemption to many debtors unless you are careful of the margin. Hitherto £5 was the margin, and this Bill increased that by 100 per cent. I think you ought to be careful before going beyond that. If the Minister says he will have the matter reconsidered, perhaps the Seanad will be satisfied.
I can only undertake to have it considered if you make the amount £15, but not with a view to exempting the seizure of farming implements. The tools and implements concerned are the tools and implements used by artizans.
I had in mind the case of a carpenter doing a small trade. You would not get his tools for less than £20 or £30, and also a shoemaker or a tailor who has a sewing machine which would be value for £20. I will move an amendment on the Report Stage, and the Government will have an opportunity of dealing with it in the meantime.
Question put: "That Clause 5 stand part of the Bill."
Agreed.
AN CATHAOIRLEACH
That Clause 6, Sub-section 1 stand part of the Bill."
I beg to move the amendments standing in my name, which, I think, can be taken together: Sub-section (1), line 1, page 5. To insert after the word "publish" the words, "in his bailiwick," and line 5 after the word ‘execution" add: "Provided notwithstanding that the Under-Sheriff shall publish in the district in which the sale takes place an advertisement or public announcement of any such sale not later than 24 hours prior to the commencement of the sale, but it shall not be necessary to publish or announce that any such sale is a sale by an Under-Sheriff, or is a sale of goods, animals, or chattels taken in execution." These amendments are proposed merely to make the sale public in the ordinary commonsense acceptance of the term. We can appreciate the necessity in certain districts for removing goods seized outside the particular bailiwick, and we can also, perhaps, appreciate the necessity for not announcing that the goods, chattels and animals seized are being sold by the Sheriff, although one might reasonably question whether it was actually vindicating the majesty of the law to deny the fact that the goods were being sold through the enforcement of the law.
However, I would respectfully submit that a sale or an auction cannot be a public sale or a public auction unless some advertisement or public announcement is issued to that effect. It is very necessary to ensure that as far as practicable goods seized shall not be sold at one-third or one fourth of their value through lack of competitors owing to the sale being kept secret for all practical purposes. It is also necessary, I think, to prevent as far as that can be done corruption or fraud on the part of the Sub-sheriff or Deputy who might be appointed to take his place. We must not go on the assumption that every Sub-sheriff or his Deputy is a rogue, and neither should we start on the assumption that each of these is a saint or an honest man. Consequently, I think, the best course to adopt is to place as little temptation in his way as possible, and this amendment is towards that end. We can easily visualise a Sheriff seizing a very large amount of goods or animals and conveying them outside his bailiwick to some unknown destination, and after the expiration of 24 hours selling these animals at a nominal public auction, of which nobody has been advised, to a friend or relative of his own at a fraction of their value. That is the position which I think we should not countenance or facilitate in any way. This amendment merely provides that an announcement somewhat on the same lines as an auctioneer announces the sale of goods, animals or lands, shall be published in the district in which a sale takes place without at the same time stating that it is a sale by the Sheriff. The time limit has been inserted because I think it will be agreed that it is necessary that some little time should be given after the publication of the notice until the sale takes place. Otherwise, you might have advertisements or a public poster issued at 10 o'clock in the morning and the sale taking place at 12 o'clock, thereby rendering the object for which it was issued nugatory. Just in passing, on looking over the amendment again I think it would be necessary, with the permission of the Seanad, to insert after the words "in his bailiwick"—"except when the sale takes place within his bailiwick," that is a matter that can be adjusted with the permission of the Seanad.
AN CATHAOIRLEACH
That would not accomplish your purpose, because your first amendment is to insert after the words "to publish""shall not be necessary by the Under-Sheriff to publish in his bailiwick." You want to insert the words "in his bailiwick" after the words "publish."
Yes.
AN CATHAOIRLEACH
Then you see the effect of that is that you relieve the Sheriff from advertising or announcing wherever the sale is in his bailiwick.
I understand now. I had another thing in my mind which I shall bring up later. I pass from that. I hope Senators will accept this amendment in the spirit in which it is proposed. It in no way weakens the Bill; it simply prevents the selling of goods at ridiculously low prices, and it protects the judgment debtor from being defrauded of a great part of the value of his goods. It also protects honest judgment debtors whose goods may be seized in mistake by the Sheriff, and gives them some opportunity of preventing the sale by pointing out the mistake that has been made. I move the amendment.
AN CATHAOIRLEACH
I want to help you if I can, and I want to ask you if this is what you propose. You say you wish to insert after "publish" the words "in his bailiwick." Is it your intention that when the sale takes place within the bailiwick no advertisement or public announcement is necessary, but where it takes place outside the bailiwick an advertisement or announcement is necessary?
No. My desire is that the last part of the amendment should provide that an announcement of the sale shall take place in any case, whether the sale is within or outside the bailiwick. I am afraid the wording at present does not provide for that.
AN CATHAOIRLEACH
You see your second amendment will be contradictory to the first one. Because, if your first amendment is accepted, it renders it unnecessary for any advertisement or announcement wherever the sale is in the bailiwick. That would be the effect of the first amendment you propose. Your second amendment, if it is to extend to sales in the bailiwick, would contradict your previous one. If your intention is that, no matter where the sale takes place, there must be an advertisement and announcement of the sale, then you should move to reject the clause. Do you follow me?
Yes.
AN CATHAOIRLEACH
I hope I am making it plain. The latter part of your amendment will be very inartistic, because it would ask to have the clause which begins by saying that the sheriff may do something, winding up by saying that he may not do it and the remedy is not to put it in that way, but to ask the Committee to reject the clause and leave the law as it stands. What I think you have in your mind, if you excuse me saying so, Senator, is this: You do not wish to alter the clause so far as the announcement that it is a sale by public auction is concerned, but you want to provide that wherever the sale takes place some previous announcement of the fact of the sale should be given without necessarily disclosing that it is a sale by Sheriff.
Yes; that is it.
AN CATHAOIRLEACH
Well that would be capable of being done by a proviso. I think by leaving out the words "to publish any advertisement," and to let the clause run "It shall not be necessary for the Under-Sheriff to publish any public announcement;" to leave out the words "any advertisement" and the word "or," and then it would read in this way "shall not be necessary for the Under-sheriff to publish any public announcement of any sale of such goods, animals or other chattels or to publish or announce such sale as." You would have to leave out the words, "any advertisement or publish announcement of any sale of any such goods," and say, "it shall not be necessary for the Under-sheriff to publish or announce any such sale as a sale by an Under-sheriff or any sale of goods, animals or chattels taken in execution." That would accomplish your purpose, and then the law would compel the Under-sheriff to give an announcement of the sale. This section would relieve him from the necessity of announcing that it is a sale of goods, animals or chattels taken in execution. I think that is what you want.
I think that this Section has to be read in conjunction with Section 7, which contemplates that goods shall be sold by public auction. That is certainly the intention, that goods taken in execution shall be sold publicly. Now, it would be most undesirable, if goods were being sold in the neighbourhood of a place in which they were seized, that it should be obligatory on the Under-sheriff to give a public announcement of the sale. Senator O'Farrell talked about selling goods at ridiculously low prices. That is what always happens at the present time at an Under-sheriff's sale when there is a publication or when all sorts of announcements are made. The people from whom the goods were seized, or their friends, go there. They intimidate or terrorise the probable buyers, and the result is that nobody will purchase those goods except some hardy fellow who expects and, in fact, gets them at a great deal less than their value in consideration of the risk that he runs. It will really be much fairer to the judgment debtor if the goods could be sold by public auction, without any announcement of the fact that they were goods taken in execution. For instance, what may be in many cases the best thing to do is to seize the cattle and transport them at once to the market, and have them sold in the market by public auction, without having to delay for any length of time in order to publish an announcement that may be made necessary by this Bill. I know that is the case of certain cattle that were seized—cattle which, it was pretended, strayed into other people's land. They were brought to Dublin and sent to the market. Within an hour or two of the time when these cattle arrived in Dublin six or seven stalwart men had arrived here to find out what had happened to the cattle. If it had been necessary, before anything could be done in the way of disposing of the cattle, to publish an announcement of the sale, then probably we would have had the same form, or to some extent the same form, of intimidation as would have occurred if these cattle had been sold locally in the district where they were seized. This is to some extent a drastic provision, but it is a provision that in the ordinary circumstances would probably be as beneficial to the judgment debtor as to the judgment creditor, and I do not think that it is necessary, having regard to the fact that this is a Bill designed to meet a special situation—a Bill of which the duration will only be six months, and a Bill introduced for the purpose of getting the machinery for executing decrees going again. I do not think that it is necessary that any restriction should be put in the Bill that would make it difficult for an Under-sheriff to realise, or would give opportunities for the old intimidation to be practised, with a view to rendering the Act nugatory to some extent.
I find myself in agreement with both Senator O'Farrell and the Minister for Local Government. I think that what is really required is to satisfy us, and to make it perfectly clear that it will be impossible for the Under-sheriff to sell privately at a low price. I think it is clearly undesirable that there should be any right or any obligation to state that the goods to be sold are seized goods. I am at a loss to see why——
AN CATHAOIRLEACH
But there are two things, Senator Douglas, that we have to keep quite distinct. One is the announcement of a sale of seized goods; the other is giving the announcement that there is a public auction, and according to this Clause as it stands there is neither an announcement of a public auction nor a public sale, nor is there any announcement that the goods are seized by the Sheriff. They are two distinct things.
I was just attempting to try to point out what you have stated. That is a difference which ought to be made clear. In a later clause it is provided that the goods may be sold by public auction. It says in a previous clause that they may be sold at any time, but what I think is required is to make it clear that there will be some competition in the sale, and, at the same time, what the Minister for Local Government clearly wants to safeguard, and which you have pointed out is, that while there is the public competition it should be made perfectly clear, that there is no obligation to state to anyone that they are goods that have been seized. I am rather at a loss to see why the amendment, in the form in which you put it, would not be made, and I think it should be.
AN CATHAOIRLEACH
I was going to suggest to the Minister whether it would not meet his case if the section were framed in this way: "And it shall not be necessary for the Under-sheriff, in the case of cattle or other live-stock, to publish any advertisement or public announcement of a sale or in the case of any seizure to publish or announce that any such sale is a sale by the Under-sheriff." In other words, not to entitle the Sheriff to sell ordinary chattels without giving some notice, because I do not see how you could have a public auction of chattels unless you give notice, but if you dispose of the notice of a public auction in the case of cattle or live stock, I think that would meet the wishes of the Government. That is to say, the Section would then read: "And it shall not be necessary for the Under-sheriff in the case of cattle or other live stock to publish any advertisements or public announcements of the sale, or in the case of any seizure to publish or announce that any such sale is a sale by the Under-sheriff, or a sale of goods," and so on. In other words, you would make the last part of the Section apply to every seizure, but you would limit the right to sell without notice to cattle and live stock. I think that is what Senator Douglas had in his mind.
I think if you go so far as that in selling any seized property without an announcement that you are going to sell it, and the time and place, you will be doing an enormous injustice to the people whose property is seized.
AN CATHAOIRLEACH
Are you now talking of ordinary seizure?
I am speaking of the seizure of cattle. If you go to a man's land, seize cattle, and sell them without announcing where they are going to be sold, you are doing an enormous injustice. If a man does not know where his cattle are going to be sold, his friends cannot buy them. I think you would be doing a frightful injustice to the man whose cattle are seized.
AN CATHAOIRLEACH
I notice that you have not an amendment down.
I was only speaking of the proposition that is before us.
AN CATHAOIRLEACH
The clause as it stands enables the Under-sheriff to do what you object to.
I do not quite know how the matter stands now. We seem to have gone from one amendment to another.
AN CATHAOIRLEACH
Perhaps I might put the position plainly before the Seanad, so that they may understand it. It seems plain to me, and I would like the Seanad to understand it. In the Bill as it stands at present the Government purpose to provide that in the case of any seizure the Sheriff, in his discretion, may avoid publishing any advertisement or public announcement of the sale of such goods. If he does publish an advertisement of the sale, he may abstain from stating in that advertisement that it is a Sheriff's sale, or that it is a sale of the goods taken in execution. That is what the Section means.
I am inclined to think that the change in the amendment suggested by the Chairman would meet the case, but I would like to see the thing in type, as it is rather difficult to accept an amendment in that way.
AN CATHAOIRLEACH
The effect of it would be to limit the power to avoid publishing notices of the auction to cattle and live stock. It would leave untouched the power in the case of any seizure to abstain from saying it was a sale by a Sheriff of goods taken under execution.
I would object to that, because it would seem to be a penal clause against farmers. Why select them as the black part of the community, while everyone else is considered fairly honest? I am not against the clause as it stands. I am perfectly satisfied if you amend it so as to make it appear that owners of livestock are not the sole people likely to defraud. I think that power should not be given except against the community as a whole. I may not have taken it up rightly.
AN CATHAOIRLEACH
You are quite right. But the distinction is this: Cattle and livestock can be so quickly transferred from one place to another that unless the Sheriff is very rapid the cattle will be more rapid.
I quite agree that these powers should be given, but I also think they should be given in the case of every chattel as well. I do not think there should be a distinction made as is proposed in the amendment.
As I understand the amendment, it means this: we all know there is machinery existing whereby cattle can be sold without the announcement of auctions. In the Dublin markets there are regular auctions every Thursday morning, and the necessary competition will be there. There will be no opportunity for friends to come along and buy at a ridiculously low figure. Your suggested amendment means, as far as livestock is concerned, that there is no necessity for a public announcement or advertisement. The sense of the amendment is that, as regards other goods and chattels, an announcement should be made of the sale, but the Sheriff is not bound to put in the advertisement or announcement that it is a Sheriff's sale of seized goods. I think under the circumstances the Seanad ought to accept that, because it meets the whole situation. I do not want to differentiate between the owners of live stock and the owners of goods, but there is a machinery for disposing of live stock in the ordinary way without any danger of advantage being taken of it, because there is the usual competition like there is in the ordinary market. On the other hand, you will have a public announcement of a sale of chattels, not necessarily stating that it is a sale of seized goods. I think that would meet the whole case.
I think it is very undesirable to differentiate between the different classes of goods which may be seized by the Sheriff, or the manner in which they should be disposed of. It has been stated that cattle can be sold at auctions. So can furniture. There are such places in the City of Dublin, and in other towns in the country where there are periodical furniture auctions. The same thing would apply to furniture as applies to cattle. I think it is altogether forgotten that this is only a six months Bill. It has been considered necessary by the Government that some drastic measures should be taken to bring about a recognition of the law by the people, and they have sent this Bill before us for consideration after discussion in the Dáil. I think we should have very serious reasons for refusing to give them the powers which they ask in order to bring the country back again to a normal state.
I would like to draw attention to what I called attention to before in No. 4, where it is laid down that within 48 hours of the seizure the Sheriff must give a list. Under No. 6 he can sell them within 24 hours. I think if that 24 hours in No. 6 were changed to 48 it would give a reasonable chance to people. We agreed to leave 48 hours as it stood in No. 4, and if we raise the 24 hours here to 48, they will not be able to sell the cattle until after they have given notice to the man from whom they have taken the cattle.
AN CATHAOIRLEACH
You mean to propose an amendment that the power to sell should not be exercised until after the expiration of 48 hours?
Yes; the 24 should be changed into 48.
I support that. Under the old system you had five days' stay.
AN CATHAOIRLEACH
I want to keep the matter in order. This is a new amendment altogether. It does not touch the merits of the amendment we are discussing at present. What is before the Seanad is Senator O'Farrell's amendment, and he is prepared, I understand, to put it in the way I have suggested.
Yes; I am prepared to accept that, as it is perhaps the best way that we can get any sort of unanimity. For that reason I would, with the permission of the Seanad, withdraw my amendment.
AN CATHAOIRLEACH
I want the Seanad to understand that I am not recommending this amendment or arguing against it I was only putting what I thought was the object of Senator O'Farrell into a form that would accomplish the purpose which he wants. I am not in any way either pressing the amendment or arguing against it.
What I wished to say was that this is an emergency measure, and it might facilitate the recovery of these debts if there were some stay, seeing that under the Bill the title that the Under-sheriff gives would be an absolute one. Hesitancy to purchase before was caused by the uncertainty that there might be some aftermath. If a person purchased it might be proved that the goods seized and sold were not the property of the debtor at all, and that the purchaser might be put to trouble and inconvenience, and, perhaps, legal proceedings. But now, seeing that he will have an absolute title, I think in the interest of the debtor and in the interest of the Under-sheriff, and in order to give further facility for the recovery of money, that it would be well if there was some stay. We know that, all through the country, there are many farmers who are well able to pay their rates, and we know that the machinery of the Co. Councils is, practically dislocated through the money not coming in. They are holding back. They can pay their debts. They have plenty of property, but they are holding back—some of them possibly because of financial reasons. They may be a bit pressed for a time, but there are none of them in that position that their friends would not come to the rescue if there was a matter of the seizure of cattle and the selling of them at a sacrifice, or a threat of it. Therefore, I say that a slight stay of twentyfour or forty-eight hours—under the old system it used to be five days—would facilitate both sides. It would facilitate the needy debtor in going to some of his friends who, in the last resort, would say: "Well, seeing that I can, by a friendly arrangement, or by your consent, buy the cattle and get a good title, I will step in and release your cattle." A further facility in that case would be, that there would not be the exposure of the debtor, because the cattle may be left by arrangement on his lands. His friends could leave them there by arrangement, and there would not be the local exposure or the odium attaching to the sale. If you put up these cattle without letting anyone know where they are to be auctioned, and send them away hurriedly, his friends—if he has any— have no means or no time to interpose and save them.
AN CATHAOIRLEACH
I think your anxiety is, Senator Kenny, to extend the 24 hours to 48 hours. Is not that so?
I think there should be some stay.
AN CATHAOIRLEACH
If that is what it means, we have not come to that yet. The amendment we are on now is intended to provide that there should be in every case where there is a seizure of cattle or other live stock no necessity for announcing a public auction unless the Sheriff wishes, but to leave untouched the necessity for a public auction in the case of all other chattels. That is the amendment now before the Seanad. The Minister is in attendance, and he has listened patiently to everything that has been said. If he would undertake to the Seanad to have this matter considered and brought up again in the Dáil, the Seanad might be prepared to accept that.
I think I am correct in stating that unless some amendment is introduced here the Bill will not go back to the Dáil, and it will be impossible to give any such undertaking.
AN CATHAOIRLEACH
We have, of course, a number of other amendments.
Might I make a suggestion which may possibly meet the case of Senator O'Farrell and also the views of the Government? I think that it would meet the case if between the words "sell" and "such," in line 62 on page 4, you inserted the words "by public auction," and leave the rest of the clause entirely unaltered. That will ensure that no Sheriff can sell privately. He must put up whatever goods he seizes to public auction somewhere, and they will be more or less advertised by being included in the sale. As I understand, that would meet the Government's view, and it would entail no other alteration in the clause whatever.
AN CATHAOIRLEACH
It is difficult to see how you could have a public auction except you have a public advertisement in the case of chattels.
As already pointed out, the cattle can be brought to Dublin and sold in the Dublin market; similarly other goods can be sold anywhere. There is an auctioneer in almost every Irish town. The goods can be handed to him. It is not necessary to state they are seized goods. That precludes the possibility of the Sheriff going to his friends and selling stuff to them at less than it is worth, dishonestly. I do not suppose that any Sheriff would do that, but the amendment put forward by Senator O'Farrell is designed to prevent its occurring. I think the words I suggest would preclude that possibility in a very simple manner.
The Earl of Wicklow's suggestion, I think, would not interfere with the intention of the Bill, which was that goods taken by the Sheriff should be sold in all cases by public auction, and not by private treaty.
AN CATHAOIRLEACH
If Senator O'Farrell is satisfied to withdraw his amendment, I will then put the suggestion of Senator the Earl of Wicklow, which is to insert in Clause 6, after "decree of Civil Bill Court to sell," to insert "by public auction."
While it does not define what a public auction is or make it necessary to insert an advertisement, it is an improvement on the original clause as it stands, inasmuch as it specifies that it shall be by auction, and, as we are more likely to get support on that, I am agreeable to withdraw my amendment in favour of it.
AN CATHAOIRLEACH
It only involves the insertion of the words, after "sell,""by public auction."
That would preclude cattle being sold in the Dublin markets in the ordinary way, because they are not sold by auction there. They are sold on the stand, and the sale-master will sell to anyone who comes along and offers the best price. I have no objection to the amendment, but that could not be called sale by public auction, and it would not be according to the intention of the mover of the amendment.
I think Sir Nugent Everard is wrong in that. I bought and sold many cattle in the Dublin market by auction. There are three salesmasters there from 10 o'clock in the morning to late in the afternoon who sell by auction.
AN CATHAOIRLEACH
I always understood that a sale of cattle in the market was known as a sale in market overt—that is, a sale by public auction.
No. Several auctions are held every week, where cattle are sold by public auction in the ordinary way by representative auctioneers. This takes place every week, and there is competition in the ordinary way.
AN CATHAOIRLEACH
In the market?
The market is a private sale. You go to the salesmaster at the market and make a private sale there. He can sell as cheaply as he wishes to sell to you.
May I point out that the auctions in the Dublin markets do not deal with fat cattle or cows—only stores.
I beg your pardon; that is not so. They deal with everything.
AN CATHAOIRLEACH
Probably the Minister may find that the best solution would be the amendment I suggest—that is to say, leave the clause as it is, but to make a distinction to limit the public sale to live stock.
Just because Sir Nugent Everard has expressed an opinion that cattle are not usually sold by auction does not seem to be a really good ground for entirely turning down our proposition. I still contend that, though it may not be the universal practice to sell cattle by auction in Dublin, the thing may be done and the thing is commonly done.
AN CATHAOIRLEACH
If your amendment as suggested is adopted, it will compel the Sheriff to sell by public auction.
Could he not hand them to an auctioneer for sale?
AN CATHAOIRLEACH
He might get a better price if he sent them to the market. Your amendment, if adopted, would prevent him doing that.
It would also prevent him selling at a much worse price.
There would be a further alternative, using the words "market overt" instead of public auction.
AN CATHAOIRLEACH
If we put in the words "in open market," would you be satisfied with that?
How would that cover goods other than cattle? How would you sell them in public market? You would have to sell them by public auction.
AN CATHAOIRLEACH.
Open market means public sale.
Open market means a private sale, too. Anyone could bring in a hundred head of cattle to a market and sell them to the first bidder without asking anybody else to bid for them.
AN CATHAOIRLEACH
This means sale in the open market.
That does not in the least prevent the abuse we are trying to prevent. We should insist upon "public auction" as a minimum. A good deal has been made of the fact that cattle can be rushed to Dublin and sold in a few hours. There is not such a terrible hurry to sell cattle seized outside Dublin that you cannot insert an advertisement and sell them at some one of the auctions that take place during the week. I think it is a very reasonable amendment, and if there is to be any amendment at all I think that should be the one.
When agreeing to that amendment I was of the opinion that there were markets every day, and that no delay would be caused by having open markets. It is most essential in this case that there should be no delay whatever. If there has to be any delay I think it will mean bringing the gun into the sale in many cases. It is very necessary that there should not be any amendment to this Bill that will enable people to come up and try to use a gun in order to terrorise possible purchasers so that the friends of the people from whom the seizures are made would be able to take them back for a mere song.
We have discussed this matter of amendments very fully, and there is evidently a great deal of doubt as to which amendment would be the most suitable. We have had to alter them one after another; then we have had a declaration from the Minister that public auction is in the minds of the Government. I think we would be safer to rely on an undertaking from the Government that all principles of honesty will be observed in the debtor's favour, while keeping out dishonest interference. If we could get a promise from the Government to carry out this clause in that spirit, we would be safer to rely upon it, and, I think, on consideration, it would be very easy for such an undertaking to be given. We have practically got it already in regard to fears of the Under-sheriff selling to his friends, and in regard to the open market. If a declaration could be put in of quite a few words, indicating publicity, preventing any illegal dealing on the part of the Sheriff, or illegal action against the individual, and indicating that the Government were only relying on this clause for bare protection for the necessary carrying out of the law, I think it would be far better for achieving what the Seanad wants than any amendment we could possibly pass.
It certainly is the intention of the Government, and I think they can be relied upon to see that any Under-sheriff who would abuse those exceptional powers would be speedily dealt with. Whether or not an amendment can be produced that will not hold up a legitimate and proper operation of the Under-sheriff, and at the same time provide on paper a safeguard, is a matter that is, perhaps, a little difficult. It might be better if I would undertake to have it considered with care by the people who are dealing with this matter, and who have been in touch with the Under-sheriffs. They could consider what sort of amendment, if any, they believed would strengthen the clause so as to prevent abuses, and at the same time not interfere with the effectiveness of the powers given. That could be communicated to the Seanad when it is considering this Bill on Report.
AN CATHAOIRLEACH
Perhaps it might meet the views of the Seanad if, after the words "to sell," there were inserted the words "at the best available price." However, if the Seanad are satisfied with the assurance of the Minister we might leave the clause as it stands.
I presume the Minister will let us have a communication before the Bill leaves the Seanad?
Yes.
Then I withdraw my amendment.
Question put:—"That Clause 6 stand part of the Bill."
Agreed.
CLAUSE 7.
Clause 7 put:—(1) Notwithstanding any statute, rule of law or order to the contrary any under-sheriff who shall have taken goods, animals or other chattels in execution under any writ offieri facias or under any decree of a Civil Bill Court may sell such goods, animals and chattels by public auction at such place or places, whether within or outside his bailiwick, and whether within or outside the territorial boundaries of Saorstát Eireann in which in his opinion such goods, animals and chattels can be sold to the best advantage, and may remove such goods, animals and chattels or any of them or cause same to be removed from the place where same were seized to such place or places of sale.
(2) All goods, animals and other chattels taken in execution by any under-sheriff under any such writ or decree as aforesaid may pending the sale thereof be impounded, stored and kept by the under-sheriff in such place or places whether within or outside his baliwick and whether within or outside the territorial boundaries of Saorstát Eireann as he shall think fit, and notwithstanding that such place or places is or are not appointed or authorised by law to be used as pounds.
(3) Wherever any goods, animals or other chattels shall be removed under this section by or by order of the under-sheriff to any place outside his bailiwick the under-sheriff shall in addition to the amount of the debt stated in the writ or decree under which such goods, animals and chattels were seized and of all charges leviable by law levy for the amount of all costs incurred by him.
(a) in or about the removal of such goods, animals and chattels from the places at which they were seized to every place (including the place of sale) to which such goods, animals and chattels are removed before the sale thereof.
(b) in or about the storing, impounding and preservation of such goods, animals and chattels (including the feeding and watering of such animals) between the time of seizure and the time of sale,
(c) in or about the sale and any attempted sale of such goods, animals or chattels other than a sale or attempted sale within the bailiwick of the under-sheriff.
All such costs and expenses as are mentioned in this sub-section may be deducted by the under-sheriff from the proceeds of the sale of the goods, animals and chattels as a first charge thereon.
(4) The under-sheriff shall be the sole judge of the place or places at which any goods, animals or other chattels taken in execution by him can be sold to the best advantage and no action shall lie against any under-sheriff on account of his having sold any such goods, animals or chattels as aforesaid outside his bailiwick.
(5) In this section the expression "charges leviable by law" means charges leviable under any enactment, rule or order in force at the passing of this Act or under any provision of this Act other than this section.
I beg to move the following amendment: —"In Subsections (1) and (2), to delete the words and whether within or outside the territorial boundaries of Saorstát Eireann.' " This amendment, or an amendment somewhat similar, has been dealt with in the Dáil. I think it is one that requires further consideration. The adoption of the amendment does not make it impossible for goods seized to be taken outside of the territory of Saorstát Eireann. The clause as it stands holds out rather too rosy or too strong an encouragement to a Sub-Sheriff to bring the goods outside of our territory altogether. I do not think we should encourage Sub-Sheriffs to make trips across the Channel to sell cattle in English markets that might very well be disposed of in Dublin or somewhere else in the Free State. In addition to that, it is within the power of any vindictive creditor to pile up the most unnecessary costs on the judgment debtor by suggesting to the Sheriff that cattle would be best sold on the other side of the Channel. There is no reason why that particular passage should be left in the Bill, seeing that it is quite possible, by eliminating it, to bring the cattle outside if there are good grounds for so doing. There is also a question as to whether it is good policy to have to go outside our boundaries in order to vindicate the law within the Free State. It certainly is not vindicating the majesty of the law within the Free State to have to go to England or Scotland to sell cattle seized under a decree in Ireland. For that reason alone I think it is very inadvisable to leave the section as it stands. We are told the Bill is rendered necessary in order to restore the national credit, but I would respectfully suggest that it will do more harm to the national credit to have to go outside our boundaries in order to sell goods seized than to fail selling them within our boundaries. I think that anybody with a spark of national pride will say that these differences arising out of the present abnormal state of affairs should if possible be resolved within the boundaries. It would be, in my opinion, an admission on the part of the Government that they were not able to enforce the law in the Free State if they have to go outside it to sell seized cattle. They will simply be playing the part of cattle rustlers, rushing away across the border with the booty seized under the terms of this Act.
I second the amendment.
AN CATHAOIRLEACH
To my mind the effect of the amendment would be to deprive the Sheriff of the power conferred upon him of having at his own discretion a sale outside the territorial boundaries of the Free State.
I contend that the elimination of these words does not prevent the Sheriff from still taking the cattle outside, but it is not a suggestion to him that he should do it.
AN CATHAOIRLEACH
I see what you mean.
I think possibly the only effect of this amendment, if passed, would be to open avenues of litigation. I am inclined to agree that the taking out of this particular phrase would not prevent the Sheriff sending the cattle outside the territorial boundaries, but the words have been put in for the purpose of making it perfectly clear that he is entitled to do so. If we look at the realities of the case I do not think there will be many who will be seriously inclined to object to this power being given to a Sub-Sheriff, and if it is given, there should be no reason why it should not be clearly given. Take the case of County Donegal. It may easily be extremely inconvenient and difficult to get cattle or other goods to suitable markets except markets outside the territorial boundaries of the Saorstát Eireann. That is one particular case where it might mean a great loss to the judgment debtor, as well as to the creditor, to have to transport goods to Dublin instead of, in the particular case it might be, to Derry. Suppose goods or cattle are seized in the County Kerry, in which at times railway communication was impossible, it might be very much better to put the cattle on a boat and send them to Liverpool, Birkenhead, or some other suitable place on the other side rather than to Dublin or any place inside the limit of Saorstát Eireann. The whole purpose of this clause is simply to make it possible for the Under-Sheriff to take the goods to where he thinks he can sell them best and where he thinks he can get the best price. I think there is no danger at all that this particular power will be unduly availed of. I think the Sheriffs will not send goods far away when they can sell them with equal advantage nearer home; and, as to the damage to the credit of a country, I do not think that is possible. It will not be advertised on the other side that these are Sheriff's sales of goods seized in Saorstát Eireann. There will be no public announcement of that sort at all. No one will be aware that it is a sale of goods or of cattle seized in Saorstát Eireann, and the credit of the country will not suffer in the least. It is simply a matter of business convenience that this power should be given to the Sheriff so that he may have free choice of market, and be able to sell the goods he has seized to the best advantage, both for the benefit of the creditor and for the benefit also of the debtor.
As I understood the mover of the amendment, he said the Sheriff had sufficient power under the clause without these words being left in. I am also of that opinion. These words simply emphasise the fact that the Sheriff may go outside. I think if the words were deleted the Sheriff would still have the power to go outside.
AN CATHAOIRLEACH
I would not be inclined to be too dogmatic about the matter. It is extremely doubtful whether the Sheriff, who, for instance, has seized cattle in the County Westmeath. can take them away and sell them in London. That is a matter the Government have considered, and it seems to me that if the Government were satisfied that the Sheriff had that power already, they would never have introduced the matter in this clause. If the Sheriff already possessed that power, I do not see why it should be necessary to legislate now and confer it upon him afresh.
I quite agree.
AN CATHAOIRLEACH
I think the Minister has not gone the length of saying that the Sheriff does already possess those powers. I think myself the matter is extremely doubtful.
What are the words exactly?
AN CATHAOIRLEACH
"Outside the territorial limits of the Free State."
It seems to me that Senator O'Farrell objects to the putting in of those words for sentimental reasons only. As far as I could gather from the Minister, the words were put in to keep the law clear and prevent litigation, so that now it is a contest between sentiment and what is the best legal phraseology. I am inclined to agree with the draughtsman of the Bill who, no doubt, did not put in those words without very serious consideration. It seems to me that we ought not, merely for sentimental reasons, to upset the considered opinion of the law adviser.
I do not think the Senator who spoke last understood Senator O'Farrell's amendment. It was not put down for sentimental reasons. What Senator O'Farrell really tried to point out to the Seanad was the fact that, while these powers already exist in the Act, there was no necessity for repeating them. Their repetition, he contended, could only have one effect, and that was, to encourage the Under-sheriff to go outside Saorstát Eireann. The repetition to the Sheriff that such powers exist, actually suggests to him that he must go outside Saorstát Eireann. If the power is there already, there is no need to repeat it, and the Minister has admitted the power is in the Bill independent of this particular wording.
In my personal opinion the whole thing is not without an element of doubt, and it was because an element of doubt existed that the words were put in so that it might be made clear.
AN CATHAOIRLEACH
I think the Minister is well advised in saying that there is an element of doubt.
It is a pity he did not make that statement before.
AN CATHAOIRLEACH
This is manifestly done in the interests of the debtor, because it says he is only to do it if he is satisfied that it means a sale to the best advantage.
It would be well, I think, if we had a definition of the words "that the Under-sheriff may sell outside his bailiwick."
AN CATHAOIRLEACH
That means that he may sell the goods any place where he can get the best price for them —in the county where they were seized, in the Free State, or anywhere outside of it.
If that is so, then we might strike out the words that would induce him to sell the goods at the far side. I think there is no one in the Seanad better qualified to give a legal definition of the words than yourself.
AN CATHAOIRLEACH
I am not going to do that.
We laymen and laywomen will accept your opinion.
AN CATHAOIRLEACH
I only say there is an element of doubt about the matter.
I desire to say that I am in agreement with the amendment, because of the fact that I do not want to induce Under-sheriffs, or their assistants, to follow this practice of taking goods that have been seized to the other side for sale. If that practice were to be followed, I think we would be advertising, to a certain extent, our shame. I would remind Senators that various classes of goods, as well as cattle, are likely to be seized. If cattle were the only things that could be seized, the impression might be conveyed that farmers were the only bad pays we have in the country. I do not think that is fair to the farmers, and I wish to point out that all kinds of goods can be seized and sent across the water to be disposed of. I do not think that is right. We know that public auctions are held on the other side that in reality are not public auctions at all, and that it is not impossible for a man who has advertised by public auction the sale of goods, cattle, furniture, pictures, etc., to have at that auction a friend, and to give him what they call the short knock. I think that is the term used at the auctions. The auctioneer sees a friend present, and he knocks down an article quickly to him. I do not think we ought to leave ourselves in that position. I think we ought to agree that the words would give power where necessary, and from what the Minister says I do not think it is the intention to take advantage of this power only in very exceptional circumstances. If the words "to sell outside his bailiwick," means that the Sheriff has power to sell in exceptional circumstances outside of Saorstát Eireann, then I think the words may be struck out as the amendment proposes.
AN CATHAOIRLEACH
I think that is what the clause already involves, because it only authorises him to do this when he thinks he would get some advantage from the sale, and in the majority of cases, I imagine there would be very little advantage. Still in small percentages there may be a decided advantage. The Government propose to leave this to the discretion of the Sheriff, so it is always governed by the principle that he was only to sell outside if he thought in doing so he would have sold to the best advantage.
The Seanad divided—Tá, 7; Níl, 14:—
Question, "That Clause 7 stand part of the Bill," put and agreed to.
|
Tá.James Green Douglas.Thomas Farren.Mrs. Alice Stopford Green.Edward MacLysaght.Thomas McPartlin.Col. Maurice Moore.John Thomas O'Farrell. |
Níl.Thomas Westropp Bennett.Mrs. Eileen Costello.Ellen Odette, Dowager Countess of Desart.Sir Thomas Henry Grattan Esmonde.Sir Nugent Talbot Everard.Sir John Purser Griffith.Henry Seymour Guinness.Rt. Hon. Andrew Jameson.Patrick William Kenny.Thomas Linehan.James Moran.Michael O'Dea.Mrs. Jane Wyse Power.Earl of Wicklow. |
CLASS="CP">Amendment lost.
CLAUSE 8.
Every person who after the passing of this Act shall in good faith purchase at a sale held by or under the authority of an Under-sheriff any goods, animals or other chattels taken in execution by such Under-sheriff shall acquire a good title valid against all persons to the goods, animals and chattels so purchased notwithstanding any invalidity or irregularity in or about the seizure or sale of such goods, animals or chattels, and whether he knows or ought or could have known or is affected with any kind of notice that the sale is a sale by or under the authority of an Under-sheriff or not.
I beg to move an amendment to add at the end of Section 8:—‘But nothing contained in this section shall be held to relieve the Under-sheriff from liability for the seizure or sale of goods, animals or chattels of a person other than the person against whom he has been called upon to enforce a judgment order or decree," in order to make it clear that in any case where the Sheriff by mistake seizes goods from some person who is not the person against whom he has a decree that the liability which he at present incurs, will still stand, and that an action will lie against him for any damage that may occur to the property of the person whose goods are seized in that manner.
AN CATHAOIRLEACH
I think you may take it that it is perfectly plain that except in so far as the Bill alters the existing law, the existing law remains, and there is nothing in the Bill which would alter the existing law to make the Sheriff liable in the way you suggest.
Probably that is the case, but in reading this clause to the ordinary individual it would seem that every irregularity and ——
AN CATHAOIRLEACH
It gives a good title to the purchaser, but does not relieve the Sheriff from any liability for any irregularity he may make. But the purchaser is relieved from any liability, and gets a clear title.
If you are satisfied that such is the case, the object of my amendment is accomplished.
AN CATHAOIRLEACH
There is no doubt about it.
Then I withdraw my amendment.
Amendment by leave withdrawn.
Question, "That Clause 8 stand part of the Bill," put and agreed to.
CLAUSE 9.
"Interruption of Under-sheriff's custody not to prejudice sale,"
was agreed to and added to the Bill.
CLAUSE 10.
No action shall lie against an Under-sheriff for or on account of his having entered or broken into any lands, house, close or other premises for the purpose of taking into execution any goods, animals or other chattels which were or might be on or in such lands, house, close or premises, or for or on account of any injury occasioned to such lands, house premises by or in the course of such entry or breaking in: Provided always that before breaking into any dwelling house or other building the Under-sheriff shall have made reasonable efforts to enter peaceably and without violence: Provided however that in any case where the Under-sheriff shall break and enter the premises of a person other than the person against whom he has been called upon to enforce a judgment order or decree he shall either have found any goods, animals or other chattels of such last mentioned person therein or thereon or shall have reasonable grounds for believing that there were some such goods, animals or chattels therein or thereon.
I think the principle of this entry and breaking into a dwelling house is a very dangerous one. If it is the house of the debtor that is broken into well and good, but if I owe a debt and my neighbour's house is broken into I think it would be a very unpleasant thing for him. It has hitherto been the rule of law, I understand, that the Sheriff could break into any house he suspects, but then he would have to take the responsibility. If he does not find anything in the house that he has a right to seize he has to suffer. Of course, if he does find anything he is clear, but this particular clause will enable him to break into any house, and whether he found anything there or not he would be clear of any responsibility.
AN CATHAOIRLEACH
That is not quite accurate. It is only clear that if he can satisfy the Court if his action was challenged that he had reasonable grounds for believing that the goods were there that he gets off.
I understand that, but it means an action afterwards. I think this clause gives him entirely too much power to break into people's houses, and I suggest that the word "house" be left out wherever it occurs in the clause, and that there be inserted in lieu thereof the words "any premises shall not include living rooms of the family." I was going to make the addition that of the words "dwelling-house," but I was not exactly sure.
I have an amendment which practically deals with this subject later on.
Sir THOMAS ESMONDE
I think we could not be too particular in the way we should safeguard the situation as to the dwelling-house.
AN CATHAOIRLEACH
I think it would be better to take up Senator McPartlin's amendment, which covers these points.
I beg to move, therefore, after the words "close or other premises" to insert the words "of a person against whom he is called upon to enforce the judgment order or decree," and after the words "or other chattels" to insert the words "of such person."
I think this amendment of mine covers the provision stated by Senator Moore. In Clause 10 the Sheriff is given almost unlimited powers, and in so far as they affect the judgment debtor we are not objecting, but the amendments which I propose are to try and give some protection to third parties, or what I may term the honest man. As far as we can read the clause it empowers the Sheriff, if he has any information that he thinks reasonable to break into the house of any individual believing that there are goods belonging to the judgment debtor in that particular house, and the only safeguard that seems to be given at all to the third party is that the Sheriff is supposed to provide reasonable grounds for his action. I do not know what reasonable grounds are, or are not—anything might be reasonable grounds. Information given by a vindictive neighbour might be reasonable grounds, or the political prejudices of the Sheriff or his officials might influence him in breaking into a house, and it does not seem to me that there is any chance for the third party getting any satisfaction at all for any act performed by the Sheriff. We propose these amendments in order to confine the powers of the Sheriff from breaking into and entering the house of a third party and saving that person from injustice. As this question was discussed one day before we want to find out whether the Seanad is favourably disposed to giving such unlimited powers to any particular official.
I would suggest to the Seanad that the amendment is quite unnecessary. As has been pointed out two or three times previously, the existing law stands, except in so far as it may be altered by this Act. The Under-sheriff has no right to take into execution goods other than those of persons against whom he is enforcing a judgment, so that nothing will be achieved by adopting Senator McPartlin's amendment. As the law stands, and as it will stand after the passing of this Bill, Senator McPartlin's desire is really met by the existing state of the law.
AN CATHAOIRLEACH
I think there is a little confusion, and that the amendment comes in after the words "house or other premises," and not after the word "chattels." I think Senator McPartlin wants to limit the power of entry to the house of the debtor, but he does not want to limit the power with regard to the question of chattels. He wants to alter the section in such a way as to deprive the Sheriff of power of entering the premises of a stranger. Is not that so?
Yes; that is provided that it gives the power to a third party to proceed by action if a forcible entry is made and if no goods are found in his house.
The amendment is to the effect that if the Sheriff breaks into the premises of any party other than the judgment debtor, and if he finds none of the goods for which he is looking, then the person into whose premises he has broken shall have the right of action. At the present time he has no redress if the Sheriff can show reasonable grounds for breaking in. As the mover of the amendment pointed out, it is always reasonable grounds if a vindictive person comes along and says that certain goods for which the Sheriff is looking are concealed in some other house. That is what we want to prevent. This is a Bill proposing to deal with debtors, but there is no reason why people who pay their debts should be penalised to the extent to which it is in the power of any Sheriff to penalise them. It is for that purpose the amendment is moved.
Sir THOMAS ESMONDE
I object to the idea of breaking into a house altogether, and Senator McPartlin can count on my vote if he presses this to a division. What we object to is the Sheriff or his deputy breaking into a house if he has reasonable suspicion that there are some articles there belonging to the judgment debtor. That is the situation at present.
AN CATHAOIRLEACH
Let there be no confusion. Under the law at present he is exempt from liability if he does find the goods in the house of a stranger. This proposal proposes to extend that a little further by exempting him from liability if he is able to satisfy a Court and jury that he had reasonable grounds for suspecting that there were goods there.
Sir THOMAS ESMONDE
But what satisfaction is that for the person whose house is broken into? If the Sheriff finds nothing what satisfaction is that to him? The unfortunate person aggrieved must wait for months before he can bring his case into Court. I think we should be very slow to give anybody this power. I do not approve of allowing the Sheriff, or any official, to break into any man's house on suspicion that it holds goods belonging to a judgment debtor, and I certainly will vote against it.
The clause deals with much more than houses. It deals with any sort of premises. If the amendment were to be adopted it would mean that if the Sheriff or his officer pulled a bush out of a gap and went into a neighbour's field to see if the cattle had been driven there for the purpose of not being taken by the Sheriff, he would be liable to an action. I think it would be certainly crippling the Under-sheriff in the exercise of the new powers which we are going to ask him to undertake in the present circumstances, if an amendment such as this were adopted. In regard to houses, there is a somewhat different argument, but certainly, so far as going into a field or into a yard or a close is concerned, I think it would be most undesirable that the Seanad should adopt an amendment which would prevent the Under-sheriff from carrying out his very difficult, arduous, and dangerous duties, if we should add to this the possibility that if in making a search which will do no damage to anybody he will make himself liable to an action for damages. I think that the Seanad certainly would be doing something unnecessary, and might hamper very greatly the execution of the law if the amendment is adopted. In regard to the other question, that is the matter of reasonable cause, certainly that would not be satisfied if, say, a boy in the street told him that the goods were in so-and-so's house. That would not protect the Sheriff if he came before the Court. He would have to show something definitely reasonable in order to satisfy a jury. That would be quite sufficient protection for a third party. That is not in the amendment before the Seanad, as the clause deals with premises other than houses.
Sir THOMAS ESMONDE
I agree with the Minister, and we do not want to prevent the Sheriff or Under-sheriff removing a bush from a gap, or going into a field, or doing something of that sort, to enable him to capture cattle he has a fair reason to believe belong to the judgment debtor. I do feel very strongly on the question of dwelling-houses, and I hope the Minister will consider the point, and see if he cannot do something, or insert some words to make it clear, so that it would not be possible for anyone to break into a person's house merely on suspicion.
AN CATHAOIRLEACH
You mean a dwelling-house of a third person.
Sir THOMAS ESMONDE
Yes. If the Minister gives an undertaking I will let the matter drop.
AN CATHAOIRLEACH
You could add the words "premises other than a dwelling-house actually in use as such by some person other than the judgment debtor."
Sir THOMAS ESMONDE
I leave it to the Government. If they meet my point I am satisfied.
I will undertake to consider the possibility of having such a clause drafted, after careful consideration, that would exclude dwelling-houses.
AN CATHAOIRLEACH
That would be a dwelling-house actually in use as such, because otherwise it might be vacant, and might be a place where the goods are hidden.
I am satisfied on that undertaking.
Amendments, by leave, withdrawn.
Question put: "That Clause 10 stand part of the Bill."
Agreed.
AN CATHAOIRLEACH
Clause 11.
This clause states "From after the passing of this Act, and notwithstanding any enactment, rule of law, or order to the contrary, no action shall lie against, and no penalty shall be incurred, by any Under-sheriff in the absence of fraud." I suggest that we should include undue overholding of surplus proceeds.
AN CATHAOIRLEACH
The section is limited to one thing, selling more goods than necessary. As the law stands if the Sheriff sells a very excessive quantity of goods he is liable to an action, and if a jury think the excess was unreasonable they can punish him. This is to relieve him where there was no fraud, malice, or gross negligence on his part. There is nothing in the clause about overholding.
But in a case where there are surplus proceeds?
AN CATHAOIRLEACH
The law remains the same as to that, and this clause does not affect it.
But where the Under-sheriff sells and satisfies the debt and expenses attached to realisation, and has a certain amount of money on hands?
AN CATHAOIRLEACH
This section does not deal with that.
But the Sheriff can over-hold that money on a technical point, and the debtor is distressed.
AN CATHAOIRLEACH
This section does not alter the law; it only deals with excessive sale to an undue amount. It does not affect the law dealing with surplus, so that an amendment would be out of order here.
Question put: "That Clauses 11, 12, 13, 14, 15, and 16, stand part of the Bill."
Agreed.