I move the deletion of the words "on demand." The Section provides that the under-sheriff or his assistants shall supply to the debtor a copy of the warrant if it is demanded from him and shall show the warrant on which he is carrying out the execution. If my amendment is carried it will ensure that the under-sheriff or his assistants shall supply a copy of the warrant, even though it should not be demanded, and I think that that operation will not entail any great expense or inconvenience on the sheriff. It will have this effect, that in the case of debtors who do not know the law and who do not know that they are entitled to a copy of the warrant if they ask for it, will be supplied with it. It is a very simple amendment, and I hope that the Seanad will see their way to pass it.
SEANAD IN COMMITTEE. - ENFORCEMENT OF LAW (OCCASIONAL POWERS) BILL, 1924—THIRD STAGE.
An identical amendment to this was moved in the Dáil, and I opposed it as unnecessary and as possibly dangerous. I took the view that no person acting in good faith is going to refrain from asking men who come to his house and proceed to remove furniture, who they are and what they are, and why they are removing property. But if you write into the Bill that this warrant must in all circumstances be produced you possibly put into the hands of a fraudulent debtor a very formidable and very effective weapon. If he simply avoids giving to the under-sheriff and his officers an opportunity of producing the warrant, they have to mark time until he gives them that opportunity. No further steps can be taken to execute the decree. As I say, I regard the amendment as unnecessary. The first and most natural thing for a person to do, when his house is entered by a stranger who proceeds to take away property, is to ask him who he is and why he is taking the property. That is a demand within the meaning of the Section. I cannot visualise anyone refraining from asking such a question except for the deliberate purpose of evading the law. The words which the Senator seeks to delete were in the Act of last year, and I know of no case of hardship that occurred under the Act, which was in force for six months of last year. If the Senator knows of any case I will be glad to hear it. I think there is a possible consequence of the amendment to which the Senator did not advert.
If the amendment is inserted, and if the debtor purposely refrains from asking, or purposely makes it impossible for the bailiff to show his authority, just as men succeed every day in evading the personal service of a writ, then under the amendment nothing more could be done to execute the judgment. In that way the Senator, quite unconsciously, would put a very powerful and effective weapon into the hands of a fraudulent debtor. He would only have to refrain from making any demand for the authority of the bailiff, and then the bailiff or other officers would simply have to wait there in the hope that at some time the debtor might decide to ask the bailiff for his authority.
I do not quite see the force of the argument used by the Minister, because even if the debtor is not present or if he does not make his appearance we have already in the Section the words "(or other the person in apparent possession of the land and premises upon which he or they shall enter)." The absence of the debtor would not invalidate the action of the sheriff. I cannot see any difference in a case where a debtor knows the law and demands from the sheriff a copy of the warrant and to be shown the original, and the other case of a poor, ignorant debtor who does not know anything about this. It is not the custom for persons who are visited by parties to rely upon what they say as to whom they represent. People visit houses and they do not tell who they really are; they represent themselves as being somebody else. I do not think that the amendment would in any way interfere with the actions of the sheriff in recovering lawful debts, and, in any case, you will ensure that the sheriff will provide himself with a copy because he will anticipate that the demand will be made on him, and it will not be very much of an addition to his work if he supplies a copy whether it is asked for or not. I am sorry that the Minister could not accept this simple amendment.
You have to legislate in the face of facts, and the Senator has drawn a picture of a poor, ignorant debtor and a presumably rascally under-sheriff. The big fact when this Bill was being drafted was that throughout the country you had something in the nature of an organised campaign against the decrees of the courts. You had a figure of £170,000 represented in outstanding decrees, in decrees in the hands of the under-sheriffs, and up to the present there has gone on something like an elaborate game between the under-sheriff and the judgment debtor, with the dice heavily loaded against the under-sheriff, the officer of the courts. He was hedged round with restrictions and conditions which, no doubt, were sound and excellent in a more normal situation, but which are utterly inapplicable to the existing situation. The Senator's amendment simply means that a man whose house is situated in a good tactical position, commanding a view of two or three miles of road, who keeps a sharp look-out for the under-sheriff and his officers, and manages to be not at home when they call, is literally above the law, immune, because, unless he is at home to receive the service, as it were, of the warrant—to have the warrant produced to him—the decree could not be executed. I wrote into the Bill a perfectly fair provision, that when challenged for their authority, when asked why they are removing the goods, on whose instigation they are acting, they shall produce the warrant on demand. It is a perfectly fair and perfectly sound provision, and it meets all the real necessities of the case. The Senator's amendment, quite unconsciously, I am sure, puts a very real and very powerful weapon into the hands of a tricky, fraudulent debtor. The simple device of being not at home to callers, when callers happen to be the officers of the courts, puts him absolutely above and clear of the law. I opposed the amendment in the Dáil; I thought I had given very adequate reasons for that position. I am prepared to take it that the Senator has not had time to read the proceedings of that Assembly, and consequently I am repeating at some length the arguments I used in the Dáil.
I hope it is not to be taken from the Minister's speech that we are expected to read the whole proceedings in the other House, for we have sufferings enough without having to do that, but I would suggest that the Minister's speech would be quite all right if we were merely debating metaphysics. He has opposed the amendment merely on its technicalities. I quite appreciate his argument that if it were inserted as drafted it might place in the hands of a fraudulent debtor a formidable weapon, but surely it is not outside the wit of the Minister if he wished to accept the spirit of the amendment to prevent any such weapon being placed in the hands of any debtor. For instance, he might easily insert a provision whereby the proper authority would be produced to the debtor, or other persons in apparent possession, or to anybody present. I cannot suggest the words just now, but, at all events, it is not outside the mental powers of the Minister to prescribe a provision taking away this power of abuse. The Minister seems to think that everybody who owes a debt, and possibly some who do not, know the whole law.
This Bill provides that the residences of people who do not owe any debt at all may be entered. Simply because the sub-sheriff has reason to suspect that they may be concealing the property of people who owe a debt and against whom there is a judgment made, he can break into their houses and seize the goods. I do not think it is too much to request that in all these cases, whether requested or not, the authority shall be produced. The section of the Bill provides for the employment of what may be termed free-booters, a number of men who may not require to have any particular qualifications, but simply at the whim of any under-sheriff a band of any type of men he may like are collected to carry out these duties, which undoubtedly are not pleasant ones, and for which the best type of men are not going to offer themselves. They are an irregular band formed to deal with a somewhat irregular situation, and I think there should be some protection afforded to those who may come within their range of operations, even if they are debtors, or people who are not debtors, but are suspected of concealing property that may belong to somebody who owes a debt. I suggest that the Minister should deal with this in the spirit rather than in the mere letter of the amendment.
The wording of Section 3 is: "It shall be the duty of a bailiff and of any other person employed by an Under-Sheriff pursuant to this Act, immediately upon entry and before seizure, to produce on demand." Well, the demand may not be made immediately upon entry, or may not be made upon seizure. I do not know exactly whether one part of this contradicts the other, or whether you come to a deadlock there. The bailiff goes in, and he apparently waits for a demand, but I would suggest that the Minister should leave out the words "immediately upon entry and before seizure" to produce his warrant to whoever is in apparent possession. I think that is the ordinary procedure in any case where officers of the law, whether they be police or other officers, enter a man's house to do a certain thing. They may be men in disguise, disguised as policemen or others, and they may not be the persons they represent themselves to be at all. I think it is entirely due to the protection of the citizen in his own house, that anyone coming in the guise or the name of the law should on entry into his house, forcibly or otherwise, show his authority without demand at all.
We are talking about shadows, not substantial things. In practice what happens is that the officers of the sheriff on going into a house announce that they have come to take certain property. The scene that takes place is not this, that the sheriff enters the house and says to the woman of the house: "We have come to take your piano," and she says: "Yes, that is all right." That is not what happens; what she says is: "Who are you, and why do you want my piano? On whose instructions do you come?" In practice, in ninety-nine and nine-tenths of cases, the business that takes place immediately on entry is that the officers state their business and produce their authority. These words are entered to meet a particular case of evasion of the law, and to meet the possibility of the court officers being deliberately and of malice aforethought denied the opportunity of producing their warrant of authority. It is not that they would not have their warrant of authority with them, and that they would not normally, and, as a matter of course, produce it, but if you write into this that in all circumstances that warrant must be produced, then you make it in the interests of the fraudulent or tricky judgment debtor to give no opportunity to have it produced. It was because of that consideration we opposed the amendment in the Dáil, and it is because of that consideration I oppose the amendment here, not that, as a matter of course, automatically, the warrant will not be produced by the court officers on going to a place, but because if you write in that it must inevitably and invariably be produced, then some tricky judgment debtor will tumble to the fact that if only he can deny to the officers an opportunity of producing that warrant the execution cannot proceed. I thought I had made that plain. It is, in my opinion, at any rate, a perfectly reasonable position. I want Senators to be quite clear in their minds that the practice invariably will be that the officers proceeding to make a seizure will produce their authority.
I think, Mr. O'Higgins, that Senator Kenny has pointed out a possible blot in the section, which does not interfere with anything you have said, but might make the section work out contrary to what you intend. The case I have in mind is this: the debtor, perfectly bona fide, is absent at the time the entry is actually made; he goes to his house after the seizure. Why should he not be entitled then to insist on the warrant being produced? He would not be entitled in your section, because the section says, "immediately upon entry and before seizure." I suggest that you strike out the words from "seizure" down to "entry" and put in the words "at any time after entry and before removal."
I will accept that amendment.
That will meet your point, Senator Kenny. Do you wish me to put your amendment, Senator Linehan?
No, I do not.
I shall therefore put the Government amendment, to strike out the words from ‘immediately' to ‘seizure' and insert ‘at any time after entry and before removal.'"
As regards Section 4, I trust I am not out of order if I call the attention of the Minister to an inconsistency in the time limit in this section and that given afterwards in Section 7. I think when the Bill was going through the Dáil no amendment was moved to alter the time limit to 48 hours. The section provides that within 48 hours no sale is to take place. When you come to Section 7, however, you find a time limit of 24 hours. In the Dáil, I believe, an amendment was moved to substitute 72 hours for 24 hours, but it was rejected. If you leave the time limit in Section 7 stand at 24 hours your other provision goes for nothing.
It does seem inconsistent to allow 48 hours to supply an inventory and allow the sale to take place within 24 hours.
The inconsistency is rather apparent than real. There is no real connection between the serving of the inventory and the sale.
The explanation, Senator Poë, is that the object of Section 4 is to give an inventory to the debtor of the goods that have been seized, so as to enable him afterwards to check it. There is not the inconsistency which there appears to be.
I beg to move the following amendment which stands in my name: "Section 7, sub-section (1) to insert at the end of the sub-section the words ‘but the under-sheriff shall give to the person against whom an execution should be levied at least 24 hours' notice of the time and place of such sale.'" I think it is only reasonable that the debtor should know where his property is being sold and have an opportunity of seeing that it went for its full value. According to the section as it stands there is no provision directing the sheriff to supply any such particulars.
The object underlying the sub-section is to ensure that the seized goods shall be sold under the most favourable circumstances in the interests of both the debtor and the creditor. I find myself in much the same difficulty with regard to this amendment as in regard to the previous one. The amendment, I submit, is drafted with insufficient advertence to reality. Senator Linehan naively says that this notice should be given to the judgment debtor so that he may have an opportunity to see that his goods are sold to the best advantage. I submit in practice, speaking for most areas, the result of such notice would be rather to secure to the judgment debtor an opportunity of seeing that his goods were not sold at all. Senators know that I am speaking facts, that the arguments urged in favour of the amendment are excellent in theory and eminently sound in Plato's republic, but that in this country at this time they simply do not hold water, and that the result of the amendment which I suggest is more likely to be the more real result than the result which the Senator claims to desire. The debtor, it should be remembered, will already have had more than sufficient warning. He will have been pressed by the creditor probably for a considerable time. He will have been brought to court on a decree. He will be pressed again by the creditor's solicitor to pay the decree, and finally the under-sheriff will probably ask him two or three times before he decides on seizure. This question of an extra 24 hours gives an opportunity to defeat the law. We are all familiar with the process. When the local auction was obligatory, and the three days' notice had to be given, the judgment debtor and his friends took very practical measures to ensure that the man who would come to bid for the property would need to be a good man with his hands.
And his legs.
The net result of that was that people bidding at a sheriff's auction expected to get a very considerable reduction for the moral and physical courage which they showed in going to bid at all, and when the judgment debtor's goods were sold at an auction of that kind, they were sold to the worst possible advantage of the judgment debtor. This other process cuts away from that arrangement. It enables under-sheriffs to sell the seized property in the open market with no notification that the property sold is property seized by the under-sheriff, and in that way the real advantage lies with the judgment debtor whose property would be sold at a fair price. A buyer will not be looking for a discount because of any great moral or physical courage he will be required to show. You remove all that advantage if Senator Linehan's amendment is accepted. You give time to the debtor in a short-sighted way to organise opposition to the sale. I suggest what would happen in seven cases out of ten is that some hardy person looking for a bargain would buy very cheaply because of the courage necessary.
In regard to sub-section 3 of Section 8, there is a provision here whereby in addition to the value of goods seized sufficient to cover the debt, and also the charges leviable by law, the sheriff has power to cover the expenses of three other items. There is a pretty wide field of operation there, and I should like to know from the Minister, who is to judge as to whether he has seized too much or too little in this respect. Is there to be any appeal from the creditor or any protection for the debtor? He can seize £50 worth in respect of a £5 bill, and charge £45 in respect of the three items.
Action would, of course, lie against the under-sheriff for malpractice, for over-charging, and the courts would be the judge.
I beg to move to delete in line 45 the word "debtor" and to substitute therefor the word "creditor." This Section deals with the case of property belonging to the wife or husband of the debtor, or the parent or the child of the debtor seized by the sheriff in excution of the decree, and it provides that there can be no action against the sheriff, with which I agree, but it gives the owner of the property, the wife, or husband, or parent, or child the right to take proceedings against the debtor for any loss or damage they might have suffered by the seizing of the property. When the debtor allows a matter to come to this crisis where all his goods are being seized and where it is necessary to seize the property of his parent, wife, or child, I do not think he can be much of a mark as a man from whom any substantial sum can be recovered, and I think instead of the action being against the debtor it ought to be against the creditor who will take the risk of authorising the sheriff to seize this property, when it is proved by the action those persons will take in court, that the property is theirs.
While I think there is a good deal to be said for the amendment of Senator Linehan as to the person who suffers from the seizure having only redress against the debtor or creditor, I think it would be preferable if the Minister could give some undertaking that in a case where under this Section substantial injustice was inflicted on a third party, the Government should do something better. When this was being discussed in the Dáil a suggestion was made to that effect by Deputy Heffernan, and it was pointed out and not denied by the Minister that it was inevitable. There were cases in which the sheriffs were seizing goods which they believed belonged to the debtor, but in some cases property was seized which did not belong to the debtor. In that case the only redress under the Bill against a creditor or a debtor would be a bad remedy, and it was suggested that the Government should see their way, in some cases, to give compensation. That was supported by a good many Deputies and, if I am right, I think the Minister gave an undertaking to consider why it would not be possible for the Government to meet those views in some respects. I think he also gave an undertaking that if he could bring forward an amendment to that effect, he would notify the Deputy who moved the amendment. Subsequently I think the Minister said he did not see his way to accept an amendment giving expression to the views I represent. He said he had notified the Deputy. He telegraphed to the Deputy, but it appeared the only notice the Deputy had got was a letter, and so he was not in a position to move an amendment. The Deputy was not satisfied with the Section as it stood. It was pressed to a division, and the amendment was lost. In view of the expression of opinion given here in support of the view taken in the Dáil, I would ask the Government to consider the possibility of awarding compensation.
To deal adequately with the Senator's amendment I would need to say something on the section generally. One of the best known methods of defeating Court judgments and the officers responsible for their execution in the past was the fraudulent third-party claim. Every under-sheriff in the country knows that device intimately. The fraudulent third-party claim was particularly effective and particularly insidious, because, I might say, of the utter impossibility of disproving it. You have a family living in a house. The under-sheriff and his officers come along to make a seizure for debt incurred by the head of the family and he is told that the particular property is the absolute property of the wife, or possibly of the son or daughter, as the case may be. That is a very difficult case to disprove legally. There may be in the mind of the under-sheriff a complete absence of credence. There generally would be, I imagine, but to disprove the claim is another thing. I ask Senators to glance at one aspect of it, the equitable rather than the strictly legal aspect of it. Debts for the most part would be incurred in respect of goods by which all the family benefited, and in fact the equities of the case lie rather with the judgment creditor than even with the third party making the claim. The vast majority of decrees would be given in respect of debts incurred with local traders for household necessities of one kind or another—groceries or requirements for the household generally— and all the members of the household would in fact have benefited by the purchase of the goods.
When an under-sheriff comes along to execute his judgment in respect of that debt he is met by a claim that particular property in the house belongs absolutely to the wife or to the son, as the case may be. That device was being practised to such an extent that it was necessary to meet it and meet it by a provision in law. I could not say in response to the Deputy in the Dáil, any more than I can here now, that it is absolutely out of the question that under the provisions of this section as it stands a mistake would not be made and hardship would not be incurred. I can say this, that without making provision in the Bill for it, if I were satisfied that by the operations of the law, thebona fide operations of the law, hardship were inflicted on any individual I would be willing to consider that matter on an ex gratia basis, and to make my recommendation to the Minister for Finance. But, if you attempt to insert in the Bill provision for such a case, then you simply invite fraud and to a large extent you nullify the objects of the section as it stands. Senator Linehan suggests that the action should lie against the creditor rather than the debtor. Of course, if action is to lie against the judgment creditor, then in fact the under-sheriff will not seize goods to which a third party puts up a claim, however frivolous or however obviously false. He will not bring into risk, as it were, his principal. He will not put within the possibility of an action the judgment creditor on whose behalf he is executing the judgment. He certainly will not do it without referring to the fact that such a claim is made to the judgment creditor and asking him what he thinks about it.
The amendment will, in fact, perpetuate the fraud which is the main weapon in the armoury. Out through the country when this Bill was being framed you had unexecuted decrees to the sum of £170,000, and that arrear figure was on the increase. We have got to ask where was it all tending. I said on one occasion in the Dáil that the first symptom of a crumbling civilisation was the failure of the bailiff to function, and for that was taken rather severely to task. But it is true. We have got either to regulate our lives by the law, or by the stone axe, or on the physical plane that men will hold what they have by the strong hand or lose it by the weak hand. We have to choose between the law or the stone axe. If we choose the law then the writ of the courts must run, and the judgments of the courts must be executed. It must not lie with tricky or fraudulent people by various devices or a combination of devices to defeat the law. We have arrived at a stage when brainy people discovered various little devices by which the law could be effectively held up and effectively defeated. We simply have to meet those devices according to our best judgment, and according to the best advice we can get from our officials. If the solution which this Bill purports to provide is not perfect—and being just the product of a human institution it is unlikely to be perfect—you have got to ask yourself whether it is not important, whether the balance of gain is not in favour of the provisions of the Bill, rather than in favour of a continuance of the state of affairs with which we were faced throughout the country; whether at any rate the Bill in its tendencies is not for good, whether it does not make to remove an evil which was serious intrinsically and serious in its tendency. I did admit in the Dáil the possibility of hardship and of mistake, and stated there that if definitely convinced that such hardship or mistake occurred I, as one Minister, would favourably consider that on anex gratia basis. I could not go beyond that. I think it is a reasonable stand to take in the matter.
I ask the leave of the Seanad to move an Amendment of which I have given private notice—Section 16, sub-section 2, to add at the end of the sub-section these words:—"and shall be removed from that office on his refusal to execute any legal decree or warrant." Hitherto the amendments proposed have been rather to soften the Act as against the judgment debtor. My experience—perhaps I am only open to representations from one quarter— is that the Act is not sufficiently stringent. I have information that there are a large number of decrees in parts of the country awaiting execution. For some reason or other—which perhaps the Minister might explain— they are not executed. I have also had experience of a case where after great difficulty and almost by a system of insidious bribery an officer living some distance from the scene was induced or rather promised to execute a decree for ejectment. Later on pressure was brought to bear on him and he was prevailed on not to do so. Of course if officers are allowed to exercise their own judgment and to introduce political or any other motives in reference to their actions it makes the whole thing a perfect farce, and the crumbling of civilisation to which the Minister refers is a reality. It is undoubtedly unpleasant to have to execute decrees in certain cases, but surely an officer when he accepts the appointment knows that he will have unpleasant duties to perform. Any attempt to introduce a partisan spirit reduces the whole thing to a farce. I would ask the Minister to consider this amendment or to give some assurance that dismissal would automatically follow refusal to execute a legal warrant.
I received this amendment a few moments ago, and I have listened to the Senator's arguments in its favour. Personally I am in the fullest agreement with the amendment, but I would be slow to agree that we ought to write into a Bill anything so obvious as that an officer of the courts shall be removed from his office on refusing to execute a decree or a judgment of the Courts. That is what the amendment amounts to. I think, on reflection, that the Senator will see that, while expressing an excellent and an essentially sound principle, that in fact the principle is so excellent and the sentiment so sound that we would be rather stultifying ourselves by writing it into our legislation. If any case is brought to my notice of a responsible official of the courts refusing to execute a judgment of the courts it can be dealt with. It can be dealt with direct by me, and, as a matter of fact, the judgment creditor has his remedy at law for such a state of affairs. I feel that the amendment ought not to be accepted by the Seanad, while I thoroughly agree that an officer refusing to execute a judgment should be removed.
After what the Minister stated, and having got a clear assurance that in practice these decrees will be executed irrespective of whom they lie against, I ask the leave of the Seanad to withdraw the amendment.