ENFORCEMENT OF COURT ORDERS BILL, 1926—COMMITTEE (RESUMED).
SECTION 13.
I move:—
1. Section 13, sub-section (1). (a) To delete in line 19 the words "other place of residence" and to substitute therefor the words "tenement of which the debtor is the occupier," and (b) to delete in line 24 the words " other place of residence of the debtor" and to substitute therefor the words "tenement of which the debtor is the occupier."
When this section was before the House on the last day the Seanad met I proposed an amendment the object of which was to prevent the sheriff from having any protection if he seized the goods of, say, a father, which were in a room in the father's house occupied by the son. Originally as the section stood he could have done that, and got the protection of the section, and in order for the father to reclaim his goods he would have to lodge their value and adopt the procedure laid down. The amendment which I proposed was as above. It has been suggested by the Minister that the word "occupier" is slightly vague, because the person whose goods you want to give the sheriff protection for seizing might be the sole occupier or might hold jointly with others. Therefore, I propose to add after the word "occupier""either alone or jointly with another or others." I am therefore moving my own amendment with those added words.
CATHAOIRLEACH
With regard to the repetition of those words "tenement of which the debtor is occupier," would it not be better to say "such tenement as aforesaid"?
Yes, that is better drafting. I do not know whether the words I suggested are the words of the draftsman.
The draftsman suggested the words Senator Brown mentioned.
The draftsman is so skilled that I do not want to abandon his words and I would rather stick to the words he suggested.
CATHAOIRLEACH
With regard to the word "occupation" it is not quite clear.
He must be in occupation in some way.
CATHAOIRLEACH
You do not say so in the amendment.
The wife and family of the man, for instance, are not in occupation; it is only the man.
CATHAOIRLEACH
I doubt that. Suppose three brothers are living in the house, how do you suggest one only is the occupier?
They are all equally liable.
CATHAOIRLEACH
You might say "rated occupier."
That would not be sufficient. It would not cover the case of a flat or a number of tenements.
"Rated occupier" would be very narrow.
CATHAOIRLEACH
If you have a father and three grown-up sons living in the same house, in my opinion they are all occupiers.
The Minister is satisfied with the amendment.
CATHAOIRLEACH
Amendment, as amended, put and agreed to.
Section, as amended, agreed to.
SECTION 14.
(1) The Minister may with the consent of the Minister for Finance by order appoint and from time to time revise—
(a) scales of fees and expenses to be charged by and paid to under-sheriffs for their services in or about the execution of execution orders, and
(b) scales of fees to be charged by and paid to specified officers of any court for the account of the under-sheriff, and
(c) scales of fees and expenses to be charged by and paid to members of the Gárda Síochána in respect of the execution of execution orders which under this Act are to be executed by them.
I move:—
Section 14, sub-section (1). To add at the end of the sub-section the words "and may prescribe a period within which the under-sheriff shall be required to make a return."
When this Bill came up for Second Reading I ventured to suggest that the public at large should require a certain amount of protection. I saw where, in many cases, decrees were placed in the hands of the sheriff and very undue delay had taken place. I understood the Minister recommended me to put down an amendment dealing with the question, and I think the simplest is the one I have suggested.
I do not know whether the Minister is prepared to accept it or not, but I know that it would be a very desirable thing that some powers should be taken to compel the sheriffs to act as they ought. I have a letter in my pocket which I only received yesterday from a solicitor in the country stating that he had placed in the hands of a sheriff in March, 1925, a certain decree, and that he had no return since, that he had written to the sheriff for a return, and that he had got no answer; that he had placed other decrees in the hands of the sheriff some months later, and that he had no reply in these cases either. I think it is obvious, and it must be the experience of many Senators, that that state of things frequently arises and that it would be most desirable to provide some period and some regulation leaving it in the hands of the Minister to say that such things would not happen in the future.
We are not inclined to accept this amendment. There has been recently, I think, in various cases, undue delay. But we are just getting out of a period of exceptional difficulties and a period in which there was an accumulation of decrees and various orders in the hands of the sheriff. I do not think there is likely to be any such delay in the future as in the past. At present the sheriff must make a return within a reasonable period, and if he does not do so the creditor can apply to the court to get an order compelling him. That remedy should suffice. Two months have been held to be a reasonable period, but it would be unwise to fix a definite period. There are some cases in which the delay is to the advantage of the creditors. In thirty per cent. of the cases the debtor pays by instalment, and the period taken to complete the instalments is often over two months, whereas if the sheriff were required to make a return within a prescribed period he would have to go in and sell the man up, and that would be bad for both the creditor and the debtor.
There is another disadvantage in compelling the sheriff to make a return within a limited period. If he is compelled to make this return of goods within a limited period he may make a return of "no goods," but if he is only subject to the existing law he will probably wait until he has an opportunity of realising in a more favourable way and to the advantage of the creditor.
CATHAOIRLEACH
Is it not a fact that under the law as it stands, up to the present, a creditor can, at any time, apply to the court for a rule or order by the court calling on the sheriff to make the return?
Yes, he would have to show that the delay was, in the circumstances, unreasonable.
CATHAOIRLEACH
If he makes a prima facie case he gets an order compelling the sheriff to make a return?
Yes, and the sheriff has to pay the costs.
CATHAOIRLEACH
I think, Senator Barrington, that the section is better as it stands, and if you take my advice you will withdraw the amendment.
Amendment, by leave, withdrawn.
Question—"That Sections 14 to 20 inclusive stand part of the Bill"—put and agreed to.
SECTION 21.
(1) Proceedings by way of interpleader may be instituted by an under-sheriff before the District Court in any case in which the under-sheriff shall have taken in execution or intended execution any goods, animals, or other chattels under any execution order and such goods, animals, or chattels are claimed by some person other than the debtor, and the value of such goods, animals, or chattels does not exceed twenty-five pounds.
(2) On the hearing by the District Court of any interpleader proceedings under this section, the Justice shall have jurisdiction to hear and determine all matters in issue between the parties, including the amount of and liability for costs, and to make such order thereon as justice shall require.
I beg to move:
" In Section 21, sub-section (1), after the word ‘under-sheriff' in line 36, to insert the words ‘or the owner of any goods seized.'"
That was up for discussion before. The explanation given to the Seanad by, I think, Senator Brown, was that to enable the sheriff to interplead in the courts, as is now proposed, and where the procedure is more simple than in the past, it was necessary to insert this clause. If that is so in the case of the sheriff, would it not also be necessary in the case of a person whose goods were seized? I thought it was desirable to call attention to the fact.
CATHAOIRLEACH
I do not think there is a great deal in it.
Except that it would institute a new principle. At present proceedings by way of interpleader are taken by a person who has no real interest, and to enable the owner to take these proceedings in another court would be introducing an entirely new principle.
What are the other remedies?
A remedy for damages against the sheriff.
CATHAOIRLEACH
I take it if these words were inserted "any person claiming to be the owner," it might meet the difficulty.
CATHAOIRLEACH
It might be shown that he was not the owner at all.
The interpleader must be instituted by the person who holds the goods. The owner cannot institute an interpleader.
Amendment, by leave, withdrawn.
On the last occasion I had an amendment on the supplementary Order Paper to delete all after the word "debtor" in sub-section (1), line 40, down to the end of the sub-section. I did not withdraw that amendment. I was under the impression it would appear on the Order Paper to-day.
CATHAOIRLEACH
You can move it now. As I understand it, this jurisdiction at present attaches to the Circuit Court. The object of the section is, where the amount of value of the goods is under £25, to enable them to go to the District Court.
I know the object, but my suggestion with regard to goods of this kind is irrespective of the amount.
CATHAOIRLEACH
Yes, because the under-sheriff would have the right to summon both the creditor and the claimant of the property seized before the District Justice, who has power to examine right away into the merits of the claim, declaring the ownership of the goods, and assessing the damages if necessary. It might be a rough form of justice, but it would be a cheap and a fairly efficient form. It would save the under-sheriff being in possession for more than three or four days, and it would save both parties expense and would work more satisfactorily than the procedure at present, where the person claiming the goods has to put down a substantial deposit in some cases. In this case that would not be necessary. The argument might be advanced that this might give rise to claims that have not a chance of being substantiated. That might be met by a subsequent amendment where, if it was found that there was perjury or anything approaching it, the papers might be sent to the Attorney-General with a view to a prosecution for perjury. That would put a stop to bogus claims and it would facilitate the administration of the law if there was a quicker procedure instead of holding over the matter for months, involving the payment of a large amount of money.
CATHAOIRLEACH
This section does not interfere with existing procedure. An interpleader could be taken, and would be taken, before the Circuit Court with expedition. The difficulty about your amendment arises in this way: That it is a very big enlargement of the jurisdiction of the District Court, which is limited under the Courts of Justice Act. If you are going now to give unlimited jurisdiction, then the District Court might be able to entertain cases involving thousands of pounds' worth of property. I am afraid the amendment is very revolutionary in that respect. As long as you do not interfere with the existing interpleader's jurisdiction, but simply give in some small cases this right, conferred for the first time, to go to the District Justice and limit them to cases of £25, you are going pretty far. I do not think that the difficulty that you anticipate will arise. It will be as easy to get a big case disposed of in the Circuit Court as in the District Court.
I admit it would be revolutionary, but in other sections we are decidedly revolutionary, and are giving extraordinary powers to the under-sheriffs. I think there should be counter power to check it and keep it within bounds. Of course, it might be impracticable, but I think it is a most important consideration. Unfortunately my amendment is not on the Order Paper.
I think the view of the Government has been given expression to by the Cathaoirleach. The ordinary jurisdiction is limited in the District Court to sums not exceeding £25 and we think that that should be the limit of the sum here, too. It would be undesirable to have before the District Court cases involving large sums of money, perhaps £1,000 or over, and also very complicated questions with regard to ownership. In all cases of substantial amounts the jurisdiction should remain to the Circuit Courts. If, in an ordinary case, we limit the jurisdiction of the District Justice to £25 these are not cases in which that sum should be increased.
Is there machinery provided whereby the under-sheriff can appear before the High court as quickly as he could before the District Court?
I was going to explain that. I entirely sympathise with Senator O'Farrell's anxiety to have cases brought, as quickly as possible, before the court. It is true that there would be more delay in the Circuit Court and the Higher Court in bringing this issue to trial, but then the Circuit Court sits every month, in every county, and in the High Court you could get an interpleader motion dealt with on any day.
Are there not delays during the long vacation?
Yes, in the case of the High Court but not in the case of the Circuit Court. They have no long vacation. They have only five or six weeks' vacation.
I do not wish to press my amendment.
Amendment, by leave, withdrawn.
CATHAOIRLEACH
I thought it well to call attention to the fact that there was that obstacle about increasing the jurisdiction of the District Court.
Section 21 agreed to.
Sections 22, 23, 24, 25 agreed to.
Title agreed to.
The Seanad went out of Committee.
Bill reported.
