The Seanad went into Committee.
Sections 1, 2, 3, 4 and 5 ordered to stand part of the Bill.
It shall be the duty of every under-sheriff under whose authority execution shall be levied upon goods, animals, or other chattels, to cause an itemised inventory of the chattels seized to be made out and within forty-eight hours of seizure and, if practicable, before any removal to cause to be furnished to the defendant (or other the person in apparent possession of such chattels) a duplicate of such inventory, signed by the under-sheriff or by a court messenger acting on his behalf.

I move:—

Section 6—"To delete in line 9 the word ‘forty-eight' and to substitute therefor the word ‘twenty-four.'"

The object of the amendment is to bring Sections 6 and 8 into more suitable relationship with each other. Section 6 provides that where a seizure is made the sub-sheriff has to make an itemised inventory of the goods or chattels seized and present it to the apparent debtor within 48 hours. Section 8 enables the same sub-sheriff to sell the chattels after the expiration of 24 hours, so that the inventory need not be presented until 24 hours after the goods or chattels have been sold. I do not think that is a reasonable arrangement. The debtor may have been away from home when the seizure of miscellaneous chattels was made, and he gets no inventory from the sub-sheriff until 24 hours later, although the goods were sold within 24 hours of the seizure. I think that is rather sharp practice. If a debtor were aware of the exact amount owing he might be able to make some arrangement or get his friends to save the goods from being sold. It is the debtor's interests that they should not be sold below the market value, and it might be to his interest if they were not sold at all.

It looks like court messengers acting as cattle rustlers or members of the Ku-Klux-Klan swooping down and seizing goods and animals, taking them away to some unknown destination. selling them after 24 hours have elapsed, and then giving an inventory to the person from whom they were seized. We are not going to encourage respect for the law or strengthen the course of the State's writ in the land by a kidnapping atmosphere and to enable sheriffs, so to speak, to take people by surprise in the execution of the law. The sheriff has power to sell the goods if he desires to do so outside his own bailiwick so that the dangerous intimidation that Ministers stress so much is removed. I think there must be some protection for debtors who are not necessarily criminals. The amendment is a very small adjustment providing that the inventory shall be submitted 24 hours after the seizure. Of course, an alternative amendment would be to leave the time for the inventory 48 hours and to extend the time within which the goods might be sold to 72 hours or to a longer period.

Before proceeding to deal with the merits of the Senator's amendment I would like to ask the consideration of Senators, generally, for the position in which I was placed with regard to this amendment and some four others. This Bill was before the Seanad roughly one month ago—some date towards the end of March. Last afternoon at 4.30 or 5 o'clock a batch of amendments were handed into the Clerk's office. A month has elapsed since the Second Reading of the Bill, and it is not unreasonable to make the comment that the amendments might have been put in sooner than last afternoon. Amendments after all may be substantial. They may be proposing whole new sections in the Bill, and it is proper that they should receive right consideration, not merely by the Minister and his Department, but by the colleagues of the Senator proposing them. I cannot say when Senators received these five or six amendments that were handed in last evening. I can say that they did not reach me, or any official of my Department, at 3 o'clock to-day. Obviously there is something wrong. At any rate I was entitled to expect when they were put in that the staff of the Seanad, recognising that this Bill was down for consideration to-day, should have taken speedy steps to bring these new amendments to the notice of my officials.

This morning I discussed this Bill with my officials, and discussed it entirely on the basis that I had to deal entirely with one amendment, that is the amendment of Senator Linehan but in the restaurant at lunch time, a couple of minutes before three o'clock, I could be told that a great many other amendments had been handed in, and would come up for consideration to-day. In fact I have had time to go into the amendments sufficiently with my officials whilst the Education Bill was under consideration, and I am prepared to deal with them, but it might well be otherwise. My Bill might have been the only matter on the Order Paper for the Seanad, and I would be in the position of having to deal with those amendments after very inadequate consideration or of being compelled to ask the Seanad to leave these amendments over till some future date. I simply make that comment, that it might be possible to so improve procedure that that state of affairs would not recur. I recognise that occasionally when the interval between the Stages of a Bill is short that there has to be a certain amount of give-and-take as between Ministers and the Seanad. In the case of this Bill the interval has been very long. I think that the amendments might have been handed in earlier, and that I should have received a prompt word from the staff of the Seanad that they had come in. They were handed in last afternoon, and up to 3 o'clock to-day I was unaware of any amendments other than that of Senator Linehan.


Before the Minister proceeds to discuss the merits of the amendment, may I say in addition to what he says, that I entirely sympathise with his statement. I had intended myself to call attention to the fact that practically all the amendments on the White Paper were not delivered until late yesterday evening when, as a matter of fact, under our Standing Orders, they were bound to be delivered before 11 o'clock yesterday. Consequently they were late under our Standing Orders, and had the Minister raised the point and objected to dealing with them, I should certainly rule that his objection was reasonable and right. He has not done that but he has called attention to the fact that although the amendments reached the staff of the Seanad late yesterday evening, he got no notification of them until late this afternoon. That was, I think, irregular. I think he should have got the earliest possible intimation of them and I think he will perhaps give me the credit of saying that I have always done my best to facilitate the passage by the Ministers of their Bills before this House and have given them every reasonable facility and every proper latitude. I am sensible that he has a cause for complaint in the matter. I shall see that for the future amendments of this kind are delivered at the earliest possible moment and that they are transmitted to the Minister in charge. As the Minister has himself elected to proceed with those amendments and to discuss them, I have nothing more to say.

As the Senator responsible for four of these amendments, I had intended to make an apology and an explanation when I first rose, but I forgot it. I think it is the first time that I have sent in an amendment late. It was purely an oversight, because as a matter of fact they were drafted three weeks ago and it was only when I got the Order Paper that I saw I had omitted to send them in.


You are getting the benefit of the First Offenders Act.

I might say, if only in mitigation of my oversight, that Bills have come very often in heaps from the other House to us and we were asked to deal with them hurriedly, even more important Bills than this. We have perhaps spoiled the Government in that respect, and if we do make a mistake they are responsible for the bad example.

This amendment might well be considered with the following amendment. It is not on the whole an unreasonable amendment, when one remembers that this Bill, unlike some of its forerunners, is a permanent Bill and sets out permanently the law for the enforcement of the orders of our courts. I do not think that it is too much to ask that within forty-eight hours of a seizure an itemised inventory of the goods seized should be left with the owner, or in his absence with the responsible person in possession of such chattels. I think in effect and in practice that there will be no difficulty in ensuring that before court messengers, or bailiffs as they are now called, leave the premises, such an inventory shall be left with the owners of the premises. Occasionally the thing may prove a little difficult, say, in the case of an out-farm on which stock is seized. The farm might be nine or ten miles from the residence of the judgment debtor, and it was with an eye rather to the exceptional cases that we made forty-eight hours the time rather than twenty-four. However, I would not object to twenty-four.

I think even in these exceptional cases, or even in the case of a seizure from an out-farm some considerable distance from the residence of the debtor, that we will be able to manage it within a period of twenty-four hours. I see the justice of the comment which draws attention to the figure of forty-eight hours in Section 6 and twenty-four hours in Section 8, as the period within which a sale may take place. If goods have to be kept, it means more costs are accumulating for the judgment debtor. Even storage of furniture costs something, and the maintenance and care of live stock is a considerable item. If, in addition, you are compelled to take some special precautions against re-seizure, against a kind of illegal re-seizure by the judgment creditor or his friends in custody on the part of the under-sheriff for any considerable time, it becomes a problem. However, taking the two together and recognising the substance of certain of the Senator's representations, I would not object to making the two figures 48—to the retention of the figure 24 in Section 6, and to making the figure in Section 8, 48 instead of 24. The Senator may take me as accepting the amendment.

Amendment agreed to.
Question—"That Section 6 as amended stand part of the Bill"—put and agreed to.
Section 7 ordered to stand part of the Bill.


The next amendment is consequential. It reads:

Section 8. To delete in lines 22-23 the words "twenty-four" and to substitute therefor the words "forty-eight."

Amendment put and agreed to.
Section 8 as amended ordered to stand part of the Bill.
Question—"That Sections 9, 10 and 12 stand part of the Bill"—put and agreed to.
(1) No action shall lie against any under-sheriff for or on account of his having taken in execution under any execution order, any goods, animals, or other chattels found in the house or other place of residence or on the lands of the debtor and claimed or alleged (whether such claim or allegation does or does not prove to be well-founded), to be the property of the wife or husband of the debtor, or to be the property of any parent or child of the debtor for the time being residing in the house or other place of residence of the debtor, and, in lieu of such action against the under-sheriff, the person to whom such goods, animals, or other chattels so taken in execution in fact belonged shall (if such goods, animals, or other chattels, should prove not to have been the property of the debtor) be entitled to recover from the debtor by action the value of such goods, animals, and other chattels, together with such damages as such person shall have suffered by reason of such goods, animals, or other chattels having been so taken in execution.
(2) The foregoing sub-section shall not operate to make it obligatory on any under-sheriff to take in execution under any execution order any such goods, animals or other chattels as are referred to in that sub-section.

I beg to move:—

To delete all the words from the word "debtor" in line 24 to the end of the sub-section and to substitute therefor the words "unless a declaration sworn before a District Justice or Peace Commissioner by the husband or wife or parent or child of the debtor shall have been served on the under-sheriff or his representative within three days of the seizure, claiming ownership of such goods, animals or other chattels."


Have you seen the amendment in the name of Senator O'Farrell? I do not know if they differ or agree.

There is a good deal of agreement. The words to be substituted are somewhat different, but they have practically the same result.


Perhaps the Minister would tell us what his attitude is towards these amendments. If he is prepared to accept either, it might dispose of the matter.

No, sir, I am afraid that I cannot.

Section 13, which enables the under-sheriff to seize property, not alone of the debtor, but of his relations, has been justified. It has been justified by the Minister principally on the grounds that although a similar section was in the temporary measure for the past three years, that he had received no complaint of any hardship or any injustice being done under it to any person. I hold that the section was inoperative during those three years because the Minister issued a special circular to the under-sheriffs directing them not to enforce this Section 13 to its fullest extent, and that the objectionable part of it was not to be put into operation. Therefore, the Minister's argument in justification of this Section 13, that for the last three years he received no complaints, falls to the ground.

Might I say to the Senator that the only substance in the special circular to which he refers, is that contained in sub-section (2) of the Bill as it stands.

I have not seen the circular, but I read about it in the speech of the Minister in the course of the Second Reading in the Dáil. Of course, if the sheriffs were interfered with and given a direction about this, then——


I wish you would be more specific about it. It is a strong assertion to say that the Minister, by circular, suspended the law.

It is in the Dáil Reports.

The circular is explanatory of the law. It just pointed out to the under-sheriffs that the duty was not imposed on them to seize the property of third parties, but that the Act simply vested in them the discretion to go ahead with the seizure in cases where they believed the third party claim to be bogus, and they were relieved of the onus which heretofore existed of a personal action if they made abona fide mistake.


That is not repealing or suspending the section in any way. It is explaining sub-section (2), which gives that power to the under-sheriff.

At any rate, it may be taken that when the sub-sheriffs received that they did not enforce the sub-section——

I do not agree.

—and therefore the Minister's argument that he did not receive any complaint is no justification for the continuance of this sub-section (1) in Section 13 of the permanent Act, I think that when a sworn declaration is made by a third party, by which that third party incurs a liability to prosecution for perjury, for making a false claim, that should be sufficient to insure that the property of the wife or husband or child of the debtor would not be seized and disposed of by the under-sheriff. I think that is a very reasonable amendment, and some regard ought to be had for third parties. The creditor has his remedy. He need give no credit. There is nothing to compel him to give credit. If the creditor finds that not only can he seize the property of the debtor but that he can seize the property of all the debtor's relations, I fear that there will be more injudicious giving of credit in the future than there was in the past. I submit this amendment as a means of setting the matter right and doing justice to the creditor, the under-sheriff, and the third party. I cannot imagine that any person who had notbona fide held property would make this sworn declaration and run the risk of a prosecution by the State for perjury afterwards. I submit this amendment for the consideration of the Seanad.

I am not a lawyer, and personally I do not understand the effect of this section. If it means that a wild scamp of a boy can go out and run up debts, and that then the creditors or officers of the court can come and seize the father's goods, I think it is monstrous. I see that some Senators signify that I am wrong. In that case I do not understand the legal interpretation of the section, but as I read it, that appeared to me to be the effect of this section. I quite appreciate the desire of the Government to meet and counteract the bogus third party claim. I think the husband and wife certainly being one, I would make them one in respect of debts. The husband should not be allowed to say "These goods are my wife's," and similarly the father should not in that case be allowed to say "These goods are the property of my children." Surely the presumption is that a son or daughter, living in the father's, the debtor's, house, does not own the chattels, lands or stock-in-trade. That appears to be the interpretation of this section, and a judgment against the son or daughter can be enforced against the property of the parents. If that is the case I think that the section deserves very close attention from this House, and this amendment, in the light of ordinary common-sense, seems right.

When I first read Section 13 rather carefully I thought it was open to the objection that has been raised by Senator Sir John Keane, but on looking into another section contained in the Bill I do not think that that is so. The only thing that Section 13 does is to relieve the under-sheriff from the liability of an action if he seizes goods under a judgment against one member of the family, and the goods are alleged to belong to another member of the family. It would mean that in a judgment against the son, chattels belonging to the father would be seized under that section, and this section relieves the under-sheriff from that liability if it were subsequently proved that the goods were not the son's but the father's. But then if you turn to Section 21 of the Bill you will find that the right of interpleader and the process of interpleader is now given to the district court, which is the most convenient court for the purpose. If there is a judgment against the son, the father makes abona fide claim to the goods. The sheriff has the right to go into the court and have an interpleader and settle who is the real owner of the goods. Is he to deprive the person of the right of action against the sheriff where he has on good faith seized family goods which are not the property of the debtor? He has still the right if he has a bona fide case to claim the goods and get them back from the sheriff.

That does not seem to be the issue. The sheriff would have the right to an interpleader, but meanwhile the goods may have been sold, and the only redress he would have would be to take an action against the debtor for the goods seized from him.

The interpleader process had better be clearly known to Senators, for a good deal turns on it in connection with Section 13. If a sworn declaration of ownership is served on the under-sheriff, together with the amount of the debt or the value of the goods seized, whichever shall be the smaller, that leaves the road clear to the interpleader process. The under-sheriff, in the event of those conditions being fulfilled, returns the goods and holds the lodgment much as a stakeholder, and leaves it to the court to say as between A, the owner of the goods originally seized, and B, the judgment creditor, as to which is really entitled to the sum of money that has been lodged. That is the process of interpleader. The under-sheriff is a man having no personal interest in the money. His position is that he has seized certain goods from A on foot of a debt. The claim is advanced by the third party B, that those goods are not the property of A, but are, in fact, his own personal property. He says to this new claimant B: "As between yourself and the judgment creditor let the court decide," and the court can decide on the following conditions: "You will get back these goods if you lodge with me the amount of the debt, or the value of the goods seized, whichever of these two may be considered the smaller. I hold these stakes, and leave the court to decide as between you and the judgment creditor where the ownership of this sum of money should lie."

That is the process of interpleader. The object of the amendment can be secured, I submit, under the provisions of Sections 21 of the Bill by the process of interpleader. The under-sheriff is not obliged by Section 13 to seize the goods of any person other than the debtor, and sub-section (2) of Section 13 makes that clear, but if he believes that a bogus claim has been made he is entitled to seize and is indemnified against action. In the past, when he was not so indemnified, he did not seize but returned anulla bona but he is now indemnified against that personal action under threat of which he functioned in the past. No personal action will lie against himself if he in the exercise of his discretion believes a particular claim to be bogus, and if he makes up his mind to proceed with the seizure he is relieved from the menace of a personal action. But it is open to the third party claimant to make the under-sheriff comply with the condition precedent to the process of interpleader, and to make a statutory declaration and the necessary lodgment in proof of good faith in establishing the substance of his claim. Thereupon the sheriff is free to seek the arbitration of the court as between the third party claimant and the judgment creditor.

Now in the straight, clear case where the under-sheriff believes the claim to be bogus and proceeds with the seizure and no such steps are taken, it would appear on the face of it, there was not much in the claim, but assuming, and I have admitted throughout the theoretical possibility of it, the under-sheriff in exercising the powers which we propose to confer on him under Section 13, makes abona fide mistake, what is the position? Then the person whose goods have been seized has 48 hours grace, that we agreed by Senator O'Farrell's amendment to extend to him, instead of the 24 hours as it was. He has 48 hours in which to take the appropriate action, to make this statutory declaration and arrange with the under-sheriff for the lodgment of the sum which will release the goods. Then it is no longer a question of the goods, but a question of the sum which he has lodged for the release of his goods. The sheriff holds that much in the capacity of a stakeholder, and he goes to the court and says: “Decide between A, the judgment creditor, and B, the third party, as to who is to get the sum of money which is now in my hands.”

Who pays the sheriff's costs in that case?

I have a note of that. The question of the costs of the under-sheriff is within the discretion of the courts, and when the court is satisfied that the under-sheriff has acted properly in having resorted to the interpleader, he is allowed his costs incidental to the proceedings as against the unsuccessful claimant, or the execution creditor, as the case may be. If the third-party claimant wins the case, and the court thinks the under-sheriff did right in coming along with his interpleader process, then the court will give him his costs as against the judgment creditor. If, on the other hand, the third-party claim is disposed of, the costs of the under-sheriff are liable to be made part of his expenses, so that Section 21, I would urge, meets the case of thebona fide mistake of the under-sheriff in exercising his powers under Section 13. I would apply the same remarks to the amendment of Senator Linehan and Senator O'Farrell. They would simply change the object aimed at by Section 13. The intention is to guard against seizure by the under-sheriff of goods belonging to a person other than the debtor, where such person has a legal claim to the goods and adduces legal evidence.

That is the object of the amendment, but it leaves the door open to fraudulent claimants. A person can obtain the release of his goods by making a statutory declaration. I am afraid the process will be resorted to, readily and frequently, of making a simple allegation in order to secure anulla bona return by the under-sheriff. Let the statutory declaration be made, but, in addition, let there be the lodgment which will show good faith and reality in the claim. The moment these conditions are applied, Section 21 comes in by way of interpleading, but if you dispense with the lodgment and simply leave it that the moment the particular form is served on the under-sheriff that the under-sheriff will return the goods, then a great many of these formulae will be flying about. The new position will not then be a substantial improvement on the old, and the old position was calculated to bring the law into ridicule. When any member of the family other than the judgment creditor puts forward a claim that those goods were his or hers the bailiff went home, reported to the under-sheriff and the latter returned a writ of nulla bona. Senator Sir John Keane said: “Surely the suggestion is absurd that a son or daughter owns the stock on the land of the householder.” It is absurd just as it is almost equally absurd in the household to suggest that household equipments and fittings are the property of the children rather than of the parents, but those claims were habitually made, and a cautious under-sheriff, recognising that mistake meant personal liability, never proceeded, although in his own mind he would have very little, if any, doubt of the bogus nature of the claim. It was sufficient to deter him. When the result of a bona fide mistake was personal liability, he returned nulla bona, went back and said there was nothing there; that the property belonged to the good man's wife, his wife's sister, or daughter or eldest son, and that everything he saw in the house was not his. The under-sheriff took no risks.

That was the position in the past, and that is the position I am attempting to deal with by Section 13. I see no other way to deal with it than by leaving to the under-sheriff the question of whether or not he will go ahead with his seizure in face of a third-party claim, and we are asking him to go ahead when he is satisfied that the third-party claim is dishonest. By Section 2 the judgment creditor has no right to insist that he shall go ahead and seize the goods of someone other than the judgment debtor. We are prepared to guard against any right accruing to the judgment creditor to have the goods of someone who is not the actual debtor seized. It is a problem that, I think, defies any other solution than the one in the Bill. You have got to leave it to the commonsense and discretion of the disinterested under-sheriff as to whether he will go ahead in a particular case, and then you have your interpleader proceedings to meet admittedly the oddbona fide mistake which may occur. I think it would be extremely rare myself.

These provisions were in operation for three years, and neither by interview nor correspondence nor through a Deputy have I heard of a case of hardship. Senator Linehan says that is because I sent out a mysterious circular. Let us clear that up. The circular was sub-section (2) of Section 13, which was not in previous Bills. It was simply a reminder to the under-sheriffs that there was no duty on them to seize the goods of someone other than the judgment debtor. It was explanatory and told them the object of the Bill was to vest in them a discretion to proceed when they were satisfied that the third-party claim advanced was a bogus claim. That section is inserted in this Bill simply because we believed that it was absolutely necessary for the removal of doubts, and because this is a permanent Bill, where there should be no vagueness about a matter of that kind. The circular issued to the under-sheriff did not prevent the full operation of those provisions. The provisions operated throughout the last three years. They were extremely useful, and in no single incident was a case brought to my notice.


I hope the Minister will keep an open mind between this and the Report Stage on clause 13, because at present it is subject to the infirmity brought out by Senator Keane, and that is due to the fact that the test is made, not of goods found in the house or on the lands of the debtor, but goods found wherever the debtor resides, which is the weakness of the section. The result of that is that a boy of sixteen might go to the adjoining village, pledge all his father's credit without his father's knowledge, and then, because he resides with his father, the goods are presumed to be his because they are found in his residence. If these words were left out it would be quite a reasonable thing to make aprima facie case so that goods found in the house or on the lands of the debtor were liable, but this clause extends it to all goods found in the place where the debtor resides and he may only be there for a night or a week. If those words, “other place of residence,” are left out, I think the clause would be reasonable, because that would be confining it to goods in the house or on the lands that belong to the debtor.

On that presumption may I suggest that there may be a legal difficulty? What is the definition of the house of the lands of the debtor? Surely that would imply a house legally owned or occupied by the debtor, also lands occupied by the debtor.


That is what I am calling attention to—the distinction between the house of the debtor and the land of the debtor on the one hand, and his residence on the other.

In case of the indebtedness of the son the land of his father would not be the land of the debtor.


I think you do not appreciate my point. I was making a point in support of your contention. The point I was making was that in that case you put the father's chattels and everything up to satisfy the boy's debt if once it was proved he was living in the same house as the father although he had no claim upon the house and it did not belong to him. I am pointing out you would get rid of that if you put in the word "residence" and confined it to the goods found in the debtor's house or on the debtor's own land. As it stands at present it is a very sweeping and drastic provision and to my mind is not cured by Clause 21, because Clause 21 does not compel the sheriff to intervene, but gives him the opportunity if he wishes.

What about sub-section (2)?

What would be the effect supposing the sheriff did not decide to proceed? This clause is not compulsory; it says he may seize or he may proceed. Supposing he elects not to proceed, what would the effect be?


Under the old law an action might be brought against the sheriff if he seized goods not belonging to the debtor. Here he gets a tremendous advantage by being relieved under Clause 21, and the claimants shave now to resort to an interpleader and cannot bring an action against the sheriff for ordinary goods taken in an execution as long as they are taken under Clause 13. It seems to me that giving him that enormous benefit it is only reasonable to limit in some form the goods that are, as I say, ostensibly the property of the debtor.

The owners have no power to proceed by way of interpleader. It is only the under-sheriff. Would it not be better to make "may" read "shall"?

The "may" is only in reference to proceedings by an under-sheriff before the district court.


I think that is so, but the objection to Clause 13 remains.

First of all, I would like to get it quite clear that it is not the intention or the object of Section 13 to enable the goods of someone other than the judgment debtor to be seized towards payment of the judgment debtor's liability. This is our position: The object of Section 13 is to counter, in a way which we believe to be effective, the bogus third party claim which in the past sufficed to reduce so many decrees of the court to waste paper. In the facing of that problem we have not been able to find any better set of provisions than those contained in Section 13. With such remedies for a possiblebona fide error as Section 21 provides, it is not intended that the goods of the son shall be seized in fulfilment of his father's debts, or that the goods of the father shall be seized in fulfilment of his son's debts. The process of interpleader is open to them just as it would be open to a complete stranger whose goods might accidentally have been seized in fulfilment of someone else's debt—the statutory declaration, the lodgment in proof of the substance of one's claim, and the court process. The actual position in which the under-sheriff was placed in the past was an intolerable one. He received a decree on foot of shop debts. He went along to the residence of A.B., the judgment debtor. He went and cast his eye on some valuable piece of furniture, but he was told, “Do not touch that; it does not belong to him, it is mine.” Perhaps that is the claim of the eldest daughter. And so on through every member of the family. Each one takes his turn and claims whatever goods the under-sheriff or his officers wish under the decree to seize. The under-sheriff could not rebut these claims. He knew they were unsound and he had no doubt they were bogus claims, but he was not in a position to rebut them. It is very difficult in a house when the daughter says that a writing desk or a sideboard or something of that kind is hers, to disprove the claim. You do not believe it, but it is utterly beyond your power to rebut it. That is the picture.

We come along then with Section 13, and we say to the under-sheriff: "‘Where you believe the claim to be bogus you need not be deterred by the idea that if by one chance in one hundred you make a mistake you are going to be held personally liable. We relieve you altogether of personal liability." And then we write in this sub-section (2) of this section to make it clear to the judgment creditors, that they are not entitled to have the son's goods seized in respect of the father's death orvice versa; that there is no right being conferred upon them; that all we try to secure is that the overcautious under-sheriff who habitually returns nulla bona in face of bogus third-party claims, will not continue to do so in the future; we have taken away the fear of the personal action from him. It is not intended to make the family collectively liable for the debts of one of the members of the family. The interpleader process will be open to them as to an utter stranger. If there is a danger lurking in the words “or other place of residence” that can be examined. It is not at all our intention to try and have the goods of people other than the judgment debtor seized. If there is anything in these words which contains that possibility, they must be examined.


As your section stands, if the sheriff goes into a house where a boy is living with his father, he is entitled to say all these things belong to the boy, because they are in his residence, whereas if these words were left out he could not say it, because the house or land would not belong to the boy. As long as you leave in the word "residence" the sheriff is entitled to go and take everything he finds in the boy's house or land.

May I respectfully submit that he could take everything in a house, but not in the case of land. Apparently, the land must be the property of the debtor. There are not widening powers in the case of land. In the case of a house the sheriff can treat the goods as belonging to the judgment debtor, but not in the case of land, which must be the property of the judgment debtor.


You are probably right, but the sheriff could take everything in the house.

Off-hand, I do not see the danger of these words, "or other place of residence." The family might be living in a flat or living in a suite in a hotel.


You are giving an immense benefit to the sheriff. That is to say, he goes to the debtor's house or flat and you entitle him to seize everything there because he is the owner of the flat or house. That is quite right, but you have gone further and entitled the sheriff to go against any member of the family, and seize everything in the house, merely because the child is living in the house. That is what I am trying to point out. You do not require that for the purpose of your section.

If it is assumed that we are out in a rapacious mood to seize the goods of every member of the family in respect of the debts of one member of it, and if I am challenged as to whether that is technically or theoretically a possibility under Section 13—subject, of course, to the remedies in Section 21—I think I would have to answer that it is, and I would have to answer that all these technical and theoretical horrors are there in that section to provide against actual and concrete abuses that exist, and that have for so long existed, in thenulla bona returns to the judgment creditor who has gone through costly court processes to get his decree and then is met by the dead wall of the third party claim.

The under-sheriffs will understand, and will be made to understand, that the sole purpose of this section is to provide the only effective remedy we have been able to devise against the third party claim. They are not to seize the goods of a father in respect of the debts of a son. They are not to seize the goods of a son in respect of the debts of a father. But where they believe that particular property is, in fact, the property of the father, if claimed by the son to void the decree of the court, then, believing that, they are able to go ahead without the terrors of a personal action and the son, let us say, who is going to claim the property is left with all the remedies, firstly, that of an interpleader, to put the sheriff in the position to interplead under Section 21, and the remedy provided by the remaining portion of sub-section (1) of Section 13, that is, the personal action against the judgment debtor by way of an action for monies paid on his behalf, if a mistake were to occur. I should say in a genuine substantial claim the interpleader process will be more often resorted to but there is the other, that if a son's property is wrongfully and in good faith seized by the under-sheriff in respect of the debts of his father, then he has a legal claim against the father for monies paid on his behalf if he can make good his title. The Section says:

. . .the person to whom such goods, animals, or other chattels so taken in execution in fact belonged shall (if such goods, animals, or other chattels, should prove not to have been the property of the debtor) be entitled to recover from the debtor by action the value of such goods, animals, and other chattels, together with such damages as such person shall have suffered by reason of such goods, animals, or other chattels having been so taken in execution.

I have regarded this matter all along as not so much a choice of evils, but a choice between an actual existing evil on a great scale and the purely theoretical technical possibility of an injustice occurring under Section 13. I do not believe, and I would not be prepared to say it would occur. I would only be prepared to say that it is a technical possibility. These provisions have been in operation for three or four years. Can any Senator say—no Deputy was able to say—that a single instance of hardship was brought to his notice in the operation of this provision? I cannot say it, and no official in my Department can say it. No under-sheriff has had to report to us that his exercise of these powers has led to any feeling that injustice had been done, and it has been the current law of the country for four years. I am asking for it to be continued, and I see no danger lurking in it.

In the case of a third-party claim, if the wife claimed that she owned a good deal of the furniture, and if it was seized, what would happen? She might not have the money to lodge with the under-sheriff at the time.


She would lose her goods.

We have listened to a very lengthy explanation regarding Section 13. I do not know what impression it has made on the minds of other Senators. It has merely created greater confusion in my mind as to what is the meaning of the section. The Minister actually alleged that the position of the child, parent, wife or husband, of the debtor was for practical purposes the same as that of any other person from whom goods might be seized on behalf of a judgment debtor. The Minister says that the child or parent may proceed by way of interpleader. If that is the case, and if he puts in a claim, does that prevent the sheriff from executing sale? If that is what the Minister states Section 13 seems to me to be absolutely unnecessary.

Section 13 lays it down definitely that no action shall lie against the sheriff in respect of any goods or chattels seized from the wife or husband, parent or child, of the debtor and that in lieu of such action, an action may be taken by the person to whom these goods may be said to belong, against the debtor. In these circumstances the sheriff who goes to seize goods is not liable to bother his head about any thing he seizes. He simply would go along, effect his sale, realise the goods, and let the person who claims ownership of the goods proceed as he will. The suggestion that the aggrieved persons, the real owner of the goods, may proceed against the debtor from whom the creditor was unable to get anything at first, is absolutely absurd. Surely, if the debtor had any visible means, the sheriff would be able to get them just as easily on a first visit as he would be on behalf of the new debtor, the person from whom the goods were wrongfully seized. The suggestion I make in another amendment is that where such a claim is made the sheriff, before selling these goods or chattels, shall satisfy himself of the validity, or otherwise, of the claim by way of interpleader as set forth in Section 21. The Section will still not leave him open to any action; no damages can be given against him. I think that would protect him sufficiently.


Section 21 will only enable him to do that up to a certain amount.

That is in the District Court. He can do it in the Circuit Court above that.

Do I take it from the Minister that if, for instance, I owe him a sum of money, and that he gets a decree against me, and that he is unable to get any goods belonging to me, and that if the sheriff seizes goods from Senator Sir John Keane in respect of the decree, that Senator Sir John Keane brings an action against the sheriff and that he may get damages against the sheriff? Can he get any damages for the wrongful seizure of the goods? He is not a son, child, or parent of the debtor, and his goods have been seized in error. Can he get damages in that event?

Yes, the old position stands. The only exception is that recited in Section 13. Section 13 says: "No action shall lie against any under-sheriff for or on account of his having taken in execution under any execution order any goods, animals or other chattels found in the house or other place of residence or on the lands of the debtor, and claimed or alleged to be claimed (whether such a claim or allegation does, or does not, prove to have been well founded), to be the property of the wife or husband of the debtor or to be the property of any parent or child of the debtor for the time being residing in the house or other place of residence of the debtor," etc.

Does it not apply now? In case they took them from somebody else.

If they took them from somebody else they would not be the property of the wife, husband, parent or child of the debtor.

And there would be an action?

Yes, there would be an action.


It simply comes to this: Under this section the sheriff can go to wherever the debtor is residing and he can, there and then, take the property of the family of the debtor that is in the house where the debtor is said to be residing, and he is not liable to any action for doing so.

And the person who owns the property is not able to bring an action for it?


He is not entitled to bring an action in the way a stranger would do. So long as the goods taken under this section belong to the wife or parent or child of the debtor no action can be taken by the debtor against the sheriff.

The sheriff can sell the goods despite any representations made to him, and then the real owner of the goods must proceed against the debtor and not against the sheriff.


He has no remedy except in action against the debtor.

I think everybody is anxious to help the Minister in the object he has in view, and I think the Minister will admit from our experience of the duties of sheriffs that the particular case he has in mind is where decrees have been executed by the sheriff and when he goes into the house of the debtor the wife, daughter or son says to the sheriff's bailiff: "That is mine and you cannot touch it." I think, a Chathaoirligh, what you suggest will remedy that easily. There might bebona fide claims made as to the ownership of property. If I understand aright, what you suggested was that the sheriff would be entitled to seize all goods in the house of the debtor.


Or on the lands of the debtor.

So that he could not go into a house belonging to the father or daughter of the debtor, but he could go into the actual debtor's house. I think in actual practice the Minister will admit that the abuses have come from the sheriff's agents going into the actual debtors' houses and that claims are made by relatives of the debtor to property contained in that house. If I understand you aright, sir, you suggested that the section should apply to the house of the debtor only.


And to everything in it.

The logical consequence of that seems to be that if I have the good luck to get lodgings in the house of a member of my family, I can owe what I like and my property cannot be seized. If the sheriff is only to operate in my own house and that I can manage to live in a house that is not my own, let it be in the name of my wife or my eldest son, or any other member of my family, then I am immune from seizure. If you were to take the limitation, "found in the house of the debtor," quite literally, as meaning that the debtor must own the house——

——be the occupier.

What exactly do you mean by that?


You mean the man in occupation, the owner or lessee, the tenant in occupation?

Might I suggest to the Minister that these words would suit: "On the land of the debtor or in the house of which the debtor is occupier."

The occupier.

Yes, the occupier; so that mere physical residing in the house would not be enough. You must be the occupier.


In the case of a tenant living in a flat he would be dealt with under the ordinary law.

I would like to examine the implications of that between this and the Report Stage.


That is what I suggested. I do not think it would be reasonable to ask you to dispose of this now. I think you will find it requires some substantial alteration, even for the purpose of giving effect to what the Government desire. They desire to get rid of bogus claims by relatives to the goods of the man in the house. Because he has them thereprima facie they should be held to belong to him, but surely you do not want to extend it so as to seize everything in the house where the debtor may be a lodger or guest?

Certainly not; but let us take the case of a family living in a house, and you have, of course, many cases of that, particularly here in Dublin owing to the shortage of houses, and you have in the house a grown-up son who contracts debts. There is a decree of the court against him and the under-sheriff comes along to execute that decree.


In his father's house?

Well, it may be his father's house——


If it is a stranger's house he can take everything he can get, but if he goes into his father's house——

If he goes into his father's house, and all the property in the house is claimed, and none of it is said to belong to him, you have got that kind of position then. If the under-sheriff disbelieves that, is he to be deterred by the fact that the property is claimed by other members of the family, simply because the house is not the house of the judgment debtor, but is the house in which the entire family lives?


He is up against that in England to-day. In every case he has to take a risk.

We do not go collaterally in this matter at all. That exception does not extend to brothers or sisters. The exception is only in the case of property claimed by the wife, husband, child or parent of the debtor, for the time being residing in the house or place of residence of the debtor. In substance what I am asking you to do is to drop the words "or place of residence."


Or keep it in the way Senator Brown has suggested —"on the lands of the debtor, or in the house or tenement of which the debtor is the occupier."

"Owner" and "occupier" are used in many Acts of Parliament. One describes ownership and the other the tenancy.

If a man makes over his house to his wife, would that constitute an effective bar to the under-sheriff?


In that case he could take everything there.

But it would not be the house of the judgment debtor then?


I do not mean to say you are going to be baffled by the ingenuity of the debtors.

I do not want to be if I can help it.

Once the under-sheriff takes the responsibility on going into a house or tenement, he ought only to do that in case it is a house or tenement in the occupation of the debtor. He has no right to go into another man's house on speculation that he can get goods there.

He goes into the house in which the judgment debtor lives. "Occupier" may mean a rated occupier, or a person who is a resident. I have a writ against A.B., and I know that A.B. lives in such a house.

But is it his own?

He lives there. I say "A.B. lives here?" The answer is "yes." I go to his room, the place he occupies in that house, and I proceed to take, let us say, a dressing-table or chest of drawers, and these are claimed by other of the members of the family, by his wife or one or other of his parents, or perhaps by his child. I say: "I am entitled by Section 13 to go ahead if I disbelieve your claim. I disbelieve your claim, and I am going ahead. You can seek your remedy under Section 21." His answer may be: "No; you are not entitled to go ahead, because Section 13 of that Act you are so glib about, applies only in the house of the judgment debtor, and this is not the house of the judgment debtor, though it is true he lives here."

If that becomes law, I think a father would have to be very careful about receiving back his prodigal son. Certainly, he would not be justified in killing the fatted calf.


The sheriff would do that.

The question is that we are not out to loot the father in respect of the debts of his sons. We are out to meet the bogus third-party claim by members of the family, and the under-sheriff knows, or will know, that he is not to go ahead to seize the goods of any person other than the judgment debtor, but he is to seize the goods which he believes to be the property of the judgment debtor, in the face of a third-party claim, which he regards as bogus.

Would not the remedy be not to give credit to doubtful persons?

On the Second Reading I was very unhappy about the Married Woman's Property Act, and the relation of this to it, and the Minister satisfied me that under the Married Woman's Property Act the married woman's goods would be free from the operations of this section. To-day the Minister said, and I was quite upset about it, that the Married Woman's Property Act would not protect the wife's property. Now, according to this, it does not, and an interpleader takes place.


She could bring an action against her husband.

She might not get much out of that. Under Section 21 proceedings by way of interpleader may be instituted by an under sheriff. That does not leave it open to the woman in this particular case who has property under the Married Woman's Act to raise an interpleader?

Section 21 has been misunderstood. Senator Brown has pointed out that "may" there has reference to the District Court. This is a new provision in relation to the interpleader, that interpleader processes may be taken before the District Court in cases where the amount at stake does not exceed £25. That is the limit of the civil jurisdiction of the District Court, and the "may" does not apply to the interpleader process generally. It only applies to this new provision in regard to interpleaders, that it can be taken before the lower courts in respect of a sum not exceeding £25.

It may be taken by the under-sheriff, but not by the person aggrieved.


May I explain the position? Under the law as it stands in the case you put of a married lady, if her property was taken in a judgment against her husband provided she lodges the money in court she can get an interpleader if the amount is under a certain figure, namely, £25. That interpleader may on motion of the under-sheriff be brought to the District Court, and if above £25 it has to go to the Circuit Court. But unless she has got the money to lodge she cannot interplead, and the remedy that she had before of suing the debtor is the only one that remains to her. She cannot sue the sheriff, and she cannot interplead except on the terms of lodging money in court.

Having in mind that the Married Woman's Property Act was gained in the past by a long and severe struggle in the House of Commons I cannot support this amendment. It means that the married woman's property, and the protection that the Act gives to her, is going to be filched away in case she has not sufficient ready money to put down in court. That is the position.


That is the position of the section, and not of the amendment.

What I suggested to the Senator on the Second Reading was that no under-sheriff would in fact seize, in the face of such an affidavit as that to which she refers, because the under-sheriff will understand that this section is to meet the bogus, unsound claims, which he utterly disbelieves. That does not empower him to seize the goods of B in respect of A.


The difficulty in that is that in front of the section are the words, "where such claims as are proved not to be well-founded." So it practically says to the under-sheriff, "Go ahead; whether the claim is a good one or not, you are protected."

It was necessary to make it clear, if subsequently it was shown that the under-sheriff had made abona fide mistake, that personal liability would not lie.

Would it not be better to adjourn consideration of this until the Report Stage?

I could not promise to make it very much clearer to Senators on the Report Stage than at present.

Will you drop it or take your chance of losing the section?

If I lose the section I would not go ahead with the Bill. If the section is defeated I would let the Bill wait the nine months.

Would it not be better for the Minister to consider the wording of this section, because it is quite obvious that a wording can be devised which would carry out what is aimed at by the present wording, and that is sought by the amendment, and that would remove the objection to which the present wording is open?

If this matter is to be left over for Report it is at least desirable that I would know what grave objections there are to the present wording. At present I do not know. I would not carry away any clear ideas as to what the objection is.


It must be my fault then. It seems simple and clear. What it means is that the under-sheriff, under this section as it stands, is entitled, wherever he finds a debtor residing, to seize everything in that residence, as the property of the debtor, no matter whether it belongs to the debtor or to his father or to his son or to his wife. So long as the man is found in residence the sheriff can seize everything in that residence, although the residence may belong not to the debtor, but to the debtor's father or the debtor's son, or any other child, or to his wife.

My objection is that as it stands it interferes with the rights given by the Married Woman's Property Act.

I will not meet that objection. I give the Senator fair warning of that.


As long as you have that, you have a right to seize everything in the actual house owned or occupied by the debtor.

Practically that is all that you will ever do.


That is all you will be required to do.

The statement is a statement of a technically possible position. You are told that the under-sheriff can come along, under this section, and seize practically everything in the house in which the judgment debtor resides and ride away with it. That is a technical and theoretically possible thing. It is not the actual thing which is sought by the section, and the position is that no property is to be seized which the under-sheriff does not believe to be the property of the judgment debtor.

The Minister is saying that a special interpretation will likely and in all probability be placed by the sub-sheriff on such a clause. Why should we pass bad law, if it is bad, in the hope that the sub-sheriff will make it into good law by the way he administers it?

I have not heard any eminently wise or constructive suggestion either in this House or in the other as to how the problem can be met otherwise than is provided here. It does not get one much farther to keep on repeating that the most shocking cases are theoretically possible under the section, in the face of sub-section (2) which gives no right to the judgment creditor to seize any goods other than the goods of the judgment debtor, and in the face of the repeated assurances that the section seeks merely to combat the bogus third party claims put forward by members of the family of the judgment debtor. Let us suppose that all the things which we are told are theoretically possible happen when this Bill is passed, clearly, then, it would be a case for the repealing of the Act. Let us suppose that a state of affairs one-hundredth part as bad as that which prevailed with regard to the bogus claims and thenulla bona returns with respect to judgment creditors who were entitled to have their decrees executed—let us suppose that a position one-hundredth part as bad as that grew up under this Act, there would be a case for a revision. But this has been law for four years and no one has been able to quote to me a single instance of a case of hardship under its operation in four years.

There was the Minister's circular preventing the under-sheriff.

It is not a case of prevention. How did I prevent the under-sheriff in West Mayo doing an injustice under the operations of Section 13 of that Act?


If the Minister does not desire this matter to stand over, I will put Senator Linehan's amendment to the House. My own impression is that the amendment that Senator Brown suggested would be a better and more workable one, and would accomplish better what Senators Linehan and O'Farrell wish.

When I say that I do not wish the matter to stand over, I would like the Seanad to be clear as to what I mean. I do not at all mean that I am not prepared to have the discussion that has taken place here very carefully considered in the meantime, with a view to possible official amendments on Report. That is one aspect. The other is that there are two amendments before the Seanad. As far as I am concerned, I would not accept either. If one or other is accepted, I will ask the Dáil to reject it. But, in asking the Seanad to reject these amendments, I can make no definite promise. It is not a case of saying: "Do not pass these amendments, and I will have something very wise and constructive that I will suggest to you on Report." I will consider very carefully the representations that have been made here in the course of the discussion, and it is possible that I may have an improved wording to Section 13 to put before the Seanad on Report. But I am not making a bargain, I am not holding anything in substitution for Senator O'Farrell's and Senator Linehan's amendments. And if either of these amendments is inserted in the Bill I will ask the Dáil to reject it, and the commercial community can wait for this Bill for nine months.


If Senator O'Farrell and Senator Linehan withdraw their amendments, Senator Brown could move his. Then, if the Seanad adopts his amendment the Minister will have an opportunity, between this and Report Stage, to say what his views are as he will have this concrete amendment before him.

I am quite prepared to move this amendment on Report. That would give us an opportunity, in the meantime, of considering the wording, and it might make a very great difference.

If Senator Brown will move his amendment now, I am prepared to withdraw mine in favour of his.


The question is that the amendments of Senator O'Farrell and Senator Linehan be, by leave, withdrawn.


I beg to move an amendment:—

After the words "found in the house" in line 18, to insert the words "or tenement of which the debtor is occupier or the lands of the debtor," and then again, in line 24, to leave out the words "other place of residence" and to insert the words "in the house or tenement of which the debtor is the occupier."

Might I suggest that all the amendments to this particular section be withdrawn until the Report Stage?


The amendments of Senator O'Farrell and Senator Linehan are withdrawn and may be moved again on Report Stage if so desired.

But Senator Brown is moving a substitute amendment.


If that amendment is adopted it only puts the position in a concrete form before the Minister and if he comes on Report Stage and says he cannot accept it it might at any rate be given some consideration.

We are not voting upon it?


If it is proposed it can be voted on.

Would it not be better to wait until the Report Stage to move this amendment? It is very technical. We could in the meantime consider it instead of taxing our minds upon it now when it is just proposed.

I am in the hands of the Seanad, I am most anxious to do whatever the Minister thinks is the best course that will help himself.

The Minister would have a free mind if we did not pass the amendment of Senator Brown now and we would be much more free in our action if we did not adopt the amendment at the moment. We only heard it a few minutes ago and we have not heard it debated. If we started upon Senator Brown's amendment now some of us might have a good deal to say about it. I agree with Senator Bennett that we ought to have our minds clearer on the matter and not to have a definite decision registered against us when we come to consider it again if we do not oppose it now.


I think the position would be rendered simpler if we had an assurance from the Minister that he would undertake to consider this amendment between now and the Report Stage. I do not understand that he has gone that far but I am in the hands of the House.

I have gone that far, but only that far. I have not definitely said that if Senator O'Farrell and Senator Linehan withdraw their amendments that I will bring up an amendment on Report. I have said that I will give very careful consideration to everything and to the many things said in the course of the debate here, with regard to Section 13, and the possible implication of certain words in that section. It would be unfair to leave Senator O'Farrell under the impression that if he withdrew his amendment that an amendment would be brought forward on the Report Stage providing substantially the same thing, because that is not the position.

Would I be in order in moving the adjournment of this discussion?


You would be quite in order in moving the adjournment of the Committee Stage.

Then I move the adjournment.


I am suggesting that it should stand over until the Report Stage, or perhaps we might adopt Senator Mrs. Wyse-Power's motion, that the Committee Stage be adjourned.

I second that.

Motion put and agreed to.

When will the Committee Stage be taken again?


When the House meets again.

This Bill has been before the Seanad for the last month; I was hoping to have it passed in ten days or a fortnight. Can I have any idea as to when the Seanad will meet again?

If I am in order I will give notice that when the Seanad meets again in a fortnight the Committee Stage and Report Stage of this Bill be taken together.


The Senator can give notice that he will move that the remaining Stages of the Bill be taken when we meet again.

I understood we were to meet to-morrow.


We have no business for to-morrow. That report came about because the Committee on the Coroners Bill is summoned for to-morrow; the House will not meet to-morrow.

It is a pity that for the sake of one amendment there should be an adjournment for a fortnight, which leaves the Committee Stage of the Bill in mid-air.


There would be nothing gained by having the Committee Stage taken to-morrow, because the Report Stage could not be taken to-morrow. If we take the Report Stage and the Final Stages together on the next day we meet, the Minister would gain all he wants.

May I ask what position the amendment I gave notice of is in?


Your amendment was withdrawn. It is dead at present.

I would also like to give notice that at our next meeting I will move that the Committee Stage, Report Stage and Final Stage of this Bill be taken.


I would like to say what the business is remaining over. We have concluded all the business at present available except the remaining part of this particular Bill, and that stands over in order that the Minister may consider what his attitude will be to this proposed amendment of Senator Brown, or whether he would propose to bring in an amendment of his own to deal with the matter. The only other Bill that could with any probability come from the Dáil in the course of the next week is the Damage to Property (Amendment) Bill, 1926. I do not feel justified in summoning the Seanad to meet for that Bill. In addition to that, there is public business of an open-air character which I understand will occupy the attention of many Senators during Tuesday and Wednesday of next week. Therefore the House stands adjourned until Wednesday, 12th May.

The Seanad adjourned at 6.20 p.m.