DÁIL IN COMMITTEE. - ENFORCEMENT OF LAW (OCCASIONAL POWERS) BILL, 1924. THIRD STAGE RESUMED.
Question: "That Section 7 stand part of the Bill"—put and agreed to.
SECTION 8.
(1) From and after the passing of this Act any under-sheriff who shall have taken goods, animals or other chattels in execution under any writ offieri facias or under any decree of a Civil Bill Court may sell such goods, animals and chattels by public auction at such place or places, whether within or outside his bailiwick, and whether within or outside the territorial boundaries of Saorstát Eireann in which in his opinion such goods, animals and chattels can be sold to the best advantage, and may remove such goods, animals and chattels or any of them or cause same to be removed from the place where same were seized to such place or places of sale.
(2) All goods, animals and other chattels taken in execution by any under-sheriff under any such writ or decree as aforesaid may pending the sale thereof be impounded, stored and kept by the under-sheriff in such place or places whether within or outside his bailiwick and whether within or outside the territorial boundaries of Saorstát Eireann as he shall think fit, and notwithstanding that such place or places is or are not appointed or authorized by law to be used as pounds.
(3) Wherever any goods, animals or other chattels shall be removed under this section by or by order of the under-sheriff to any place outside his bailiwick the under-sheriff shall in addition to the amount of the debt stated in the writ or decree under which such goods, animals and chattels were seized and of all charges leviable by law levy for the amount of all costs incurred by him—
(a) in or about the removal of such goods, animals and chattels from the places at which they were seized to every place (including the place of sale) to which such goods, animals and chattels are removed before the sale thereof;
(b) in or about the storing, impounding and preservation of such goods, animals and chattels (including the feeding and watering of such animals) between the time of seizure and the time of sale;
(c) in or about the sale and any attempted sale of such goods, animals or chattels other than a sale or attempted sale within the bailiwick of the under-sheriff.
All such costs and expenses as are mentioned in this sub-section may be deducted by the under-sheriff from the proceeds of the sale of the goods, animals and chattels as a first charge thereon.
(4) The under-sheriff shall be sole judge of the place or places at which any goods, animals or other chattels taken in execution by him can be sold to the best advantage and no action shall lie against any under-sheriff on account of his having sold any such goods, animals or chattels as aforesaid outside his bailiwick.
(5) In this section the expression "charges leviable by law" means charges leviable under any enactment, rule or order in force at the passing of this Act or under any provision of this Act other than this section.
I beg to move:—
In Sub-section 1, line 7, after the word "Eireann" to insert the words "but not outside Ireland."
As long as the Section stands in its present form it enables cattle to be seized by the Government and exported to England or Scotland, and in that way it will pile up unreasonable charges on the debtor. I scarcely think that it is the intention of the Minister responsible for the Bill that debts should be piled up in this unreasonable manner. If any other method than that mentioned in the Section can be found to meet the situation that has arisen, then I am sure the Minister would be prepared to consider any reasonable way out of the difficulty. My amendment suggests a way that will not pile up unreasonable costs upon the debtor. It is with that intention the amendment is moved.
Section 8, Sub-section 4, leaves the under-sheriff in the position of being the sole judge of the place where the sale will take place. I do not think that such power should be given to the under-sheriff. In the case of cattle seized in Donegal, the amendment enables those cattle to be sold in either Derry or Strabane. That would prevent the necessity for a sale in Glasgow or Birkenhead. If that procedure were carried out, deporting the cattle to those places would place unreasonable burdens upon the debtor. For that reason I ask the Minister to accept the amendment.
Mr. O'HIGGINS
If the course of action outlined by Deputy Davin was at all likely to be adopted, there would be a strong case for the amendment. If we were to assume that the under-sheriff simply, with a view to piling up costs on the defendant, would take seized articles and stock and carry them over seas for sale, the amendment would be a very proper one. In point of fact we know that nothing of the kind would happen in practice. We know also that in a particular case it might well be that it would work out cheaper to ship cattle across the Channel than to dispose of them otherwise in this country. Personally, having regard to the very small number of cases in which seized articles were brought out of the country, I believe the amendment would not be worth the time the Dáil would devote to it, if I were to persist in refusing to accept it. It is just in that way I am prepared to accept it—that I believe a quarter of an hour of the time of the Dáil that would be spent in discussing it would be out of all proportion to the importance of the amendment.
It is very satisfactory to understand from the Minister that he is prepared to accept this amendment. But if it were of so little importance, why did he repeat in this Bill this provision taken from the last Bill, notwithstanding the fact that the subject under discussion, that is, the empowering of the under-sheriff to send goods anywhere, was objected to strenuously? It may be of little moment to the Minister, but I am glad he has accepted the amendment. The fact remains that he desired to restore this power which lapsed with the expiry of the last Temporary Bill. I think it is very good that he has accepted the amendment, because it is a most dangerous power to give to an under-sheriff. The explanation was given by, I think, the Minister for Finance more recently than the discussion on the last Bill, that it specially provided for goods seized from debtors in Donegal being sold in Derry. The amendment now meets that point, but it prevents sending across the water at the discretion of the under-sheriff. I think that is an important matter, and not the slight matter which the Minister suggests. I am glad that he accepted the amendment.
Mr. O'HIGGINS
In accepting the amendment, I would like to say I accept the principle, but not the wording; possibly the wording will need altering. It would be simply a matter of drafting. This provision was inserted in the Bill simply because I believe that when and if used at all it would be used in a set of circumstances in which it would be to the advantage of the judgment debtor to use it. If the under-sheriff did in fact bring stock or property out of the country for sale, he would bring it because he would believe that by so doing, a higher price could be got for the property sold, or that the transit expenses would be less. In that way it would be to the ultimate advantage of the judgment debtor. I am accepting the Deputy's amendment, but I am asking that it would be the principle that would be accepted until I find a proper form of words.
Amendment put and agreed to.
The following amendment stands in my name:—
At the end of Sub-section (1), line 11, to add the words "provided that all such goods, animals, or other chattels shall, before being sent for sale outside the territorial boundaries of Saorstát Eireann be first offered for public sale within the territorial boundaries of Saorstát Eireann and shall not be sent outside those boundaries unless the Under-Sheriff shall certify to the Minister for Home Affairs that no reasonable offer was made for such goods, etc., at such sale."
I regret that I did not hear the discussion on the last amendment, but from the very small portion of it I did hear, I am rather inclined to think that the Minister has made some concession which, perhaps, would meet my amendment. Perhaps he would tell me what the concession was. I regret not being here.
Mr. O'HIGGINS
I have expressed a willingness to accept the principle that property seized on foot of either writs or judgment shall not be brought out of the country. That will not mean that they cannot be brought outside the present jurisdiction of the Free State Government, and it would not mean that the Sheriff could not bring seized property outside his own bailiwick. In other words, property seized in Donegal could be sold in the city of Derry and property seized in Tipperary could be sold in the Dublin market.
In view of the concession made by the Minister, I think I might say it would largely meet with the requirements of my amendment. I am willing to withdraw the amendment with the consent of the Dáil.
Amendment not moved.
I beg to move:—
In sub-section (2), line 17, after the word "Eireann" to insert the words "but not outside Ireland."
Amendment agreed to.
I formally move—
In sub-section (3), line 39, before the word "all" to insert the words "a return of," and after the word "sub-section" to insert the words "shall be made by the under-sheriff to the County Court Judge and if sanctioned by the Judge as reasonable."
Mr. O'HIGGINS
I am not accepting this amendment on the ground that it is not properly any part of the County Court Judge's duty to act as an unpaid costs checker for the debtor. We take the line that if the debtor wants details, the under-sheriff is bound to supply them. That, in fact, is the practice under the existing law. It will continue to be the practice. If the details disclose either fraud or extravagance on the part of the under-sheriff the debtor has his legal remedy.
It is true, of course, the present law throws the responsibility upon the debtor to follow a certain process. But the present law does not give the under-sheriff the extraordinary liberty that this Bill proposes to give to him. In this case and under this Bill, the under-sheriff may engage and employ for pay all kinds of assistants, and may pile up costs under the assumption or pretence that it is necessary to pile up these costs. And the goods may be sold without any advertisement of the fact that they are to be sold by auction, and that they are seized goods. These provisions, therefore, make it possible for the sheriff or under-sheriff, who may have a particular animus against the debtor, to do things which he could not do so easily under the present law. It should be a very simple matter to require that the sheriff should present an account in regard to goods sold without imposing on the debtor the responsibility of having to go through certain legal processes. If you are to give the under-sheriff all these powers and liberties to deal with the debtor's property surely we have a right to impose upon him the obligation of returning an account to the debtor of the cost of the action, of the seizure and sale of the goods and of the property under the judgment. I do not think anybody would suggest that any other person in any other business could handle and sell goods on behalf of the third party without rendering an account. All we ask is that obligation should be placed on the under-sheriff to render such an account. That, I take it, is a quite reasonable obligation to impose upon any person in such a position.
Amendment put.
The Committee divided: Tá, 17; Níl, 34.
Tá.
- Pádraig F.Baxter.
- Seán Búitléir.
- John Conlan.
- David Hall.
- Connor Hogan.
- Séamus Mac Cosgair.
- Tomás Mac Eoin.
- Pádraig Mac Fhlannchadha.
- Patrick McKenna.
- Patrick J. Mulvany.
- Tomás de Nógla.
- Aodh O Cúlacháin.
- Mícheál R. O hIfearnáin.
- Domhnall O Muirgheasa.
- Tadhg P.O Murchadha.
- Pádraig O hOgáin (An Clár).
- Patrick K. Hogan (Luimneach).
Níl.
- Earnán de Blaghd.
- Séamus Breathnach.
- Seoirse de Bhulbh.
- Séamus de Búrca.
- Sir James Craig.
- Máighréad Ní Choileáin Bean Uí
- Dhrisceóil.
- Osmond Grattan Esmonde.
- Henry J. Finlay.
- Desmond Fitzgerald.
- Domhnall Mac Cárthaigh.
- Liam T. Mac Cosgair.
- Seán Mac Giolla 'n Ríogh.
- Eoin Mac Néill.
- Seoirse Mac Niocaill.
- Liam Mac Sioghaird.
- Peadar O hAodha.
- Criostóir O Broin.
- Seán O Bruadair.
- Aodh Ua Cinnéidigh.
- Partholán O Conchubh air.
- Séamus N. O Dóláin.
- Peadar S.O Dubhghaill.
- Pádraig O Dubhtaigh.
- Eamon S. O Dúgáin.
- Aindriú O Láimhín.
- Séamus O Leadáin.
- Fionán O Loingsigh.
- Thomas O'Mahony.
- Pádraig O Máille.
- Séamus O Murchadha.
- Pádraig O hOgáin (Gaillimh).
- Caoimhghín O hUigín.
- Patrick W. Shaw.
- Liam Thrift.
Amendment declared lost.
I beg to move Amendment 12:—
"At the end of Sub-section (3), line 41, after the word `thereon' to add the words `all such costs being vouched by means of receipted accounts, which shall be available for the scrutiny of the debtor."
This amendment bears a very close resemblance to the previous amendment, but does not go quite so far. It only asks that vouchers be given and be available for the scrutiny of the debtor.
Mr. O'HIGGINS
The amendment is not necessary, and consequently is not acceptable. I do not know whether the Deputy, before he put down the amendment, looked up the existing provisions which set out the obligations of the under-sheriff in cases of sale. As the law stands at the moment, the under-sheriff must, if requested, give a detailed account of the amounts realised by sale of the seized goods, and an account of the amount of the expenses incurred. He hands to the judgment creditor the amount of the judgment, plus the costs, and hands any balance there is over to the debtor, who is entitled to be told how that balance was arrived at, and to get a full account from the under-sheriff.
The Minister says the debtor is entitled to be told these things. Does that mean that he is entitled to see the vouchers and to have them produced? I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move Amendment 13, on behalf of Deputy Morrissey:—
"To delete Sub-section (4)."
The Sub-section throws full power into the hands of the under-sheriff again in this Section, as in other places in the Bill, so that he shall be the sole judge of the place or places at which any goods or chattels or animals can be sold to the best advantage, and no action shall lie against the under-sheriff on account of having sold such goods or chattels outside his bailiwick. The first part of the Sub-section is the part we object to, inasmuch as it specifically exonerates beforehand, the under-sheriff from responsibility for negligence. I know there is a provision which would bring the sheriff to book if it was proved against him that he was guilty of gross negligence or malice. But it is a very difficult proposition to prove gross negligence in a Court.
If we agree to the specific Section or Sub-section and say that the under-sheriff shall be the sole judge, we are in effect inviting him to run the risks of being indicted for gross negligence, knowing that he can go a long way without much chance of being brought to book. The difference between the Minister in this matter and myself is that he assumes that under-sheriffs will be perfectly honest, impeccable officers of the Courts, that they will do without question all those things which the Minister himself thinks they ought to do, and which they are likely to do. They may be very likely to do those things. They may be quite honest men when they are appointed, or in the opinion of the Appointing Authority, they may be quite honest men, but there is always a possibility that some mistake may be made, and if we specifically, by an act of the Oireachtas, tell those men they may stretch the law and that no action will lie against them, we are putting temptation in their way. No damage will be done by the omission of this Sub-section, but by leaving it in we are simply telling the under-sheriffs that they may do anything with those goods and nothing will happen to them unless the debtor, the only person likely to be interested, can prove gross negligence or malice. I do not think it is desirable to insert a Sub-section of this kind.
Mr. O'HIGGINS
I am sorry that instead of simply moving the deletion of the Sub-section, the Deputy did not think fit to state his alternative. Apparently, it is questioned that the under-sheriff ought to be the judge of where seized property can be sold to the best advantage. If the under-sheriff ought not to be the judge, who ought to be the judge? The Deputy makes no suggestions. I was expecting to hear from him on that point of an impartial Advisory Committee composed of the judgment creditor's brother-in-law and the judgment debtor's aunt, which might possibly sit to consider the question, and so make their recommendations. The fact is the Deputy tells us we are legislating on the assumption that public officials will be honest men, and will perform the duties that are assigned to them.
Mr. O'HIGGINS
The whole thesis underlying his contention is that the contrary is the case, and that we must legislate on the principle that they are potential or actual rogues. You cannot legislate or administer on that basis. We are entitled to assume, and we must assume, that the under-sheriff into whose hands writs or judgments of the court are delivered, will have one object, and one object only, to secure for the judgment creditor payment in full of his account and costs, and that he will exercise reasonable care to dispose of the goods to the best advantage with a view to the interests, not merely of the judgment creditor, but of the judgment debtor. Granting, as we have granted, that it is a reasonable thing, faced with arrears of £170,000 in the State, to give special latitude to under-sheriffs to allow them to sell when they deem it necessary or advisable outside their bailiwicks, then the selection of the place for sale must be the selection of the responsible official, the under-sheriff. The Deputy, while querying that, makes no suggestion. Who should be the judge if not the responsible official of the court in whose hands the judgment or writ is placed? I submit the Sub-section is a useful and necessary addition to the Bill, and I reject the amendment.
On the contrary, I submit that the Sub-section is unnecessary to fulfill the purpose which the Minister says he has in mind, and its only use is to point out to the sub-sheriff that he has exceptional powers, and that it is expected that he will use them, that he has exceptional powers to incur expenses, and that he may abuse those powers without much risk. That is the sole effect of the Sub-section that is inserted here. In Sub-section (1) it is already provided that the sub-sheriff may sell outside his bailiwick in such a place as in his opinion such goods can be sold to the best advantage. By omitting the sub-section we are not depriving him at all of his discretion as to where he shall send his goods to be sold.
That is already provided for, but we are asked to re-emphasise the fact that that discretion is so absolute that he may even wantonly abuse his powers without any risk because, as the Courts will say, you provide an additional sub-section to show that he will be the sole judge, obviously with the purpose not merely of saying that he can remove goods to any place, which in his opinion would be to the best advantage, but we say, "not only are you to use your discretion, but no matter how you use it, wantonly abusing it or not, no action shall lie against you. You are to be the sole judge, and the Oireachtas, in passing this Act, must have had, because it could have no other purpose, the intention of removing all responsibility from you." In view of the provisions of Sub-section (1), I say that Sub-section 4 is unnecessary, unless for the purpose of removing that responsibility, to give a reasonable justification for sending goods to any particular place. It is re-emphasising in an unnecessary manner the discretion of the sub-sheriff, and as I say, is rather a pointer to the fact that he can punish the debtor on his own account by piling up costs against such debtor. That, I think, is an undesirable proposition and I press the amendment.
Mr. O'HIGGINS
I would like just to add that the object of the sub-section is to prevent the state of affairs in which the under-sheriff would be put, as it were, on his proof of the necessity for removing chattels or stock or seized property outside his bailiwick. The sub-section is inserted with a view to underlining and emphasising the fact that he has discretion in the matter. It might be quite a difficult thing for an under-sheriff to prove that if he had gone about it he could not have effected the sale of seized property within his bailiwick. It is not the wish of the Ministry that under-sheriffs should feel that they may not remove seized property outside their own bailiwick, unless they are in a position to go on proof before a Court as to the necessity or strong advisability of that course.
The arrears figure of £170,000 is a problem that this Bill is drafted to meet, and that big figure of arrears did not accumulate without something in the nature of a definite campaign of non-payment of lawful debts and nonrecognition of Court judgments and decrees, and we consider that the figure speaks for itself, tells a story that should convince Deputies of the necessity of strengthening in a very comprehensive way the arm of the law and the arm of the responsible Court officer. Officials faced with the prospect of being hauled into Court by a judgment debtor and made to prove that it was necessary for them to remove the seized property outside their bailiwick, would be very reluctant, indeed, to avail themselves of the powers in the Bill if they felt that any such steps might be taken by the judgment debtor. Therefore, we feel it necessary to insert the sub-Section that these responsible officials of the Courts shall be the judges and the sole judges of where property can be disposed of to the best advantage. That does not override the provision that if there is fraud, negligence, or malice, they are liable at law.
Will the Minister say where the weakness of sub-Section (1) lies, and why it is necessary to buttress the provisions of Sub-section (1), which gives the sub-sheriff power to sell in such place as in his opinion goods can be sold to the best advantage?
Amendment put.
The Committee divided: Tá, 14; Níl, 35.
Tá.
- Pádraig F. Baxter.
- John Conlan.
- David Hall.
- Connor Hogan.
- Séamus Mac Cosgair.
- Tomás Mac Eoin.
- Pádraig Mac Fhlannchadha.
- Patrick J. Mulvany.
- Tomás de Nógla.
- Aodh O Cúlacháin.
- Mícheál R. O hIfearnáin.
- Tadhg O Murchadha.
- Pádraig O hOgáin (An Clár).
- Patrick K. Hogan (Luimneach).
Níl.
- Earnán de Blaghd.
- Séamus Breathnach.
- Seoirse de Bhulbh.
- Séamus de Búrca.
- Sir James Craig.
- Máighréad Ní Choileáin Bean Uí Dhrisceóil.
- Osmond Grattan Esmonde.
- Henry J. Finlay.
- Desmond Fitzgerald.
- John Good.
- Domhnall Mac Cárthaigh.
- Liam T. Mac Cosgair.
- Seán Mac Giolla 'n Ríogh.
- Eoin Mac Néill.
- Seoirse Mac Niocaill.
- Liam Mac Sioghaird.
- Liam Mag Aonghusa.
- Criostóir O Broin.
- Seán O Bruadair.
- Séamus N. O Dóláin.
- Peadar S. O Dubhghaill.
- Pádraig O Dubhthaigh.
- Eamon S. O Dúgáin. Donchadh S. O Guaire.
- Aindriú O Láimhín.
- Séamus O Leadáin.
- Fioná O Loingsigh.
- Thomas O'Mahony.
- Pádraig O Máille.
- Séamus O Murchadha.
- Caoimhghín O hUigín.
- Patrick W. Shaw.
- Liam Thrift.
- Aodh Ua Cinnéidigh.
- Partholán O Conchubhair.
Amendment declared lost.
Question: "That Section 8, as amended, stand part of the Bill," put and agreed to.
Sections 9 and 10 ordered to stand part of the Bill.
SECTION 11.
No action shall lie against an under-sheriff for or on account of his having entered or broken into any lands, house, close or other premises for the purpose of taking into execution any goods, animals, or other chattels which were or might be on or in such lands, house, close or premises, or for or on account of any injury occasioned to such lands, house or premises by or in the course of such entry or breaking in: Provided always that before breaking into any dwelling-house or other building the under-sheriff shall have made reasonable efforts to enter peaceably and without violence: Provided, however, that in any case where the under-sheriff shall break and enter the premises of a person other than the person against whom he has been called upon to enforce a judgment, order or decree he shall either have found any goods, animals, or other chattels of such last-mentioned person therein or thereon or shall have reasonable grounds for believing that there were some such goods, animals or chattels therein or thereon.
I move:—
In line 16 to delete the word "either," and in line 18 after the word "thereon" to delete all words to the end of the Section.
So far, we have been dealing almost altogether with the rights of debtors and creditors, but this Section deals with the rights of a third, and possibly an innocent party. The under-sheriff has power to break into a premises and seize chattels or goods of a third party, and this Section would have the extraordinary effect of protecting that under-sheriff from any legal action by the third party for breaking into such premises. The Minister has several times emphasised the necessity for supporting the executive arm of the law, and has also referred many times to the total amount of outstanding decrees which are in the hands of the under-sheriffs. Incidentally, with regard to the amount of those decrees, I believe, from information which I have received, that the actual amount is not the amount stated by the Minister; that is, that the return made to him was the return of the original amount of these decrees, that considerable payments had been made on account, and that these payments have not been deducted. That was the information that I received, anyhow.
While I am as anxious as anybody to see that the law is enforced and that honest creditors have the power to obtain payment for their debts, I think that no unreasonable freedom or licence should be granted to under-sheriffs or their servants. There is no reason why those people should be protected by a special clause which practically makes them immune from the ordinary course of the law. Under this Section, if the under-sheriff breaks into the house of a third party and it is found afterwards that he had no right to do so, or that he did not gain anything by so doing, he is protected, and he has, by this Section, an Indemnity Act passed in his favour. The effect of my amendment would be to prevent this happening and still to hold him liable for so doing. The words are: "Who has or shall have reasonable grounds." I object to those words "shall have reasonable grounds," which are as vague as the words "if practicable." I think these words would make it almost impossible for anyone to secure any redress from the under-sheriff in the event of the under-sheriff doing anything illegal. Who would be the judge of what was or was not reasonable?
Mr. O'HIGGINS
I do not propose to accept the amendment. If the amendment is passed and becomes operative it will, in my opinion, seriously hamper the under-sheriffs in the discharge of their duty. The Deputy, I think, lacks sympathy. If for a moment he will put himself in the other man's place, he might get a better view of the problem. If, instead of being a distinguished legislator, he was simply a humble court official, whose duty it was to enforce the writs and judgments of the courts, and if he found himself in this position that he could break and enter premises, provided that his search was successful, but that in the event of his making any mistake he was practically in the position of a burglar, liable to be prosecuted and to have various pains and penalties enforced against him—in such a set of circumstances, I submit that the right to enter premises forcibly would not be an operative right at all, that no court officer, no under-sheriff, would act on it, or would take the risk. It would be an intolerable position to place them in, it would be an intolerable risk to subject them to, and I think the natural and inevitable consequence would be that the right would not be exercised. An under-sheriff may have the best of reasons for believing that particular property is in a shed, let it be chattel property, or a horse or cow. He may have two or three hours earlier seen the property placed there, seen it being brought in, and he may have seen the horse or cow being driven in; he comes along with his officers later, and the problem for him is, has the property been removed in the meantime? Is there a second door in the shed through which the horse or cow could be driven out? If the property has been removed in the meantime, and he breaks in, he is a burglar. The dilemma that Deputy Heffernan puts up to him is that. "You have got to take your chance hit or miss. If you hit, you are an honest man and a zealous official, whose energy and zeal are worthy of the highest praise. If you miss, you are a burglar, liable to be prosecuted by the owner of the premises, and liable to serve a long term of imprisonment." The Deputy will not deny that that is the position he is putting up to the Court officers throughout the country, whose duty it is to make the writ of the State run. I submit to his good sense and to his calmer judgment that it is not a fair proposition, that the most you can expect is that the officer will act within the limits of reason in the discharge of his duty, and that where he takes on himself the responsibility of forcible entry of that kind he must be ready to show later before a court, if necessary, that his grounds for such action were good and reasonable grounds, that he had very good reason to believe that the property of the judgment debtor would be found in the place to which he had effected entry. But if the Deputy persists, and if a majority of other Deputies agree with him, then you are saying to this public officer, "You can break into this place at your peril. If you find property there, you are an excellent official, whose zeal and energy deserve the highest praise, but, if by any mishap, if by any ruse, the property has been removed since you or some agent of yours, saw it placed there, then you are a burglar." The amendment is not reasonable, and the net result of it would be, in fact, to remove all right of forcible entry, because no under-sheriff would take the risk, and no under-sheriff ought to take the risk. If the Parliament of the country puts him in the position that he must chance his arm, so to speak, that he must take the risk of being on the one hand a zealous officer, or on the other hand a burglar, then he ought not to take that risk, and he ought never to act on the right of forcible entry, no matter what the circumstance. The text of the Bill as it stands says that where such action is taken, the officer taking it must be ready to show that there were good and reasonable grounds for the action, and that there were genuine reasons for believing that the property would be found in the place to which he had effected entry. Further than that, I submit we cannot and ought not to go, and I oppose the amendment.
I overlook the Minister's gentle satire about distinguished legislators. I do not pose as a distinguished legislator. I do pose as a representative of the people of my constituency.
Mr. O'HIGGINS
I do stand as a representative of the people of my constituency. I did believe that in putting down this and other amendments I was honestly putting down amendments which would be for the benefit of the majority of the people whom I represent. The Minister is very solicitous for the welfare of his court officials. He suggests that I should place myself in the position of a court official. Judging by the legislation which has been passed for the protection of those officials, I think from a monetary point of view I would certainly very much improve my position if I could change it to that of one of these court officials whom he refers to. He is also very solicitous about the dangers of prosecution which might accrue to those officers if they did break into some premises and did not find there the goods they were seeking. My amendment does not prevent them breaking into the premises of the actual debtor. It only makes them liable for breaking into the premises of a person other than the person against whom they have been called upon to enforce judgment. I ask the Minister what protection has that third party when his premises have been broken into? Against whom has he an action, or where does he get redress? The effect of the amendment would not be to prevent under-sheriffs making seizures on premises of third parties at all. The effect would be that they would not make a seizure without being practically certain that they would get the goods which they were seeking. I think that is very essential. I think it is an extraordinary power to give an under-sheriff, that he can, on his writ, break into the premises of any citizen, and, not having found any goods which he was seeking, that he should be perfectly free of any liability. Such being my opinion of the necessity for this amendment, I cannot withdraw it.
Amendment put.
The Committee divided: Tá, 13; Níl, 31.
Tá.
- Pádraig F. Baxter.
- Seán Buitléir.
- John Conlan.
- Connor Hogan.
- Tomás Mac Eoin.
- Pádraig Mac Fhlannchadha.
- Patrick J. Mulvany.
- Tomás de Nógla.
- Mícheál R. O hIfearnáin.
- Domhnall O Muirgheasa.
- Tadhg P. O Murchadha.
- Pádraig O hOgáin (An Clár).
- Patrick K. Hogan (Luimneach).
Níl.
- Earnán de Blaghd.
- Seoirse de Bhulbh.
- Séamus de Búrca.
- Máighréad Ní Choileáin Bean Uí
- Dhrisceóil.
- Osmond Grattan Esmonde.
- Henry J. Finlay.
- Desmond Fitzgerald.
- John Good.
- Liam T. Mac Cosgair.
- Seán Mac Giolla 'n Ríogh.
- Eoin Mac Néill.
- Seoirse Mac Niocaill.
- Liam Mac Sioghaird.
- Liam Mag Aonghusa.
- Mícheál O hAonghusa.
- Criostoír O Broin.
- Seán O Bruadair.
- Aodh Ua Cinnéidigh.
- Partholán O Conchubhair.
- Séamus N. O Dóláin.
- Peadar S. O Dubhghaill.
- Eamon S. O Dúgáin.
- Aindriú O Láimhín.
- Séamus O Leadáin.
- Fionán O Loingsigh.
- Thomas O'Mahony.
- Pádraig O Máille.
- Séamus O Murchadha.
- Caoimhghín O hUigín.
- Patrick W. Shaw.
- Liam Thrift.
Amendment declared lost.
Question: "That Section 11 stand part of the Bill"—put and agreed to.
SECTION 12.
From and after the passing of this Act no action shall lie against and no penalty shall be incurred by any under-sheriff in the absence of fraud, malice or gross negligence for or on account of his having seized or sold under any writ offieri facias or any decree of a Civil Bill Court more or less goods, animals or other chattels than would or might be sufficient to meet the full amount of the debt or sum of money and all costs, fees, charges and expenses leviable by law (including this Act) under or by virtue of such writ or decree.
I move:—
In line 26, after the word "might" to insert the words "reasonably be expected to."
The Section, as it stands, gives the sheriff a very free hand, unless it is proved he is guilty of negligence. It would be very difficult to prove that. The amendment requires him to be reasonable. I think it would be easier for a court to determine what "more reasonable" would mean than to determine what is gross negligence.
Mr. O'HIGGINS
I have no very strong objection to the amendment, but I want to make it clear, however, to the Deputy, that it could, and does frequently, happen that the only seizable article substantially exceeds in value the amount of the judgment or writ.
I think acceptance of the Deputy's amendment would not rule out that as a factor in the situation, and I am prepared to accept the amendment.
Amendment put and agreed to.
I beg to move:—
At the end of this Section, line 29, to add the words "but in the case of seizure of goods, animals or other chattels which exceed in value the full amount of the debts by twentyfive per cent., this protection from action shall not apply."
I think the concession that has been granted by the Minister to the last amendment will have a considerable effect in improving the Section. The effect of my amendment would be definitely to fix the amount above the value of the debts at 25 per cent., so that in case the sheriff did seize goods or chattels to a total exceeding the actual amount of debt by 25 per cent., he would be liable for action.
Mr. O'HIGGINS
I take it that when the Deputy puts down an amendment he seriously wishes to have it incorporated in the law of the land and that he does not put it down simply in a spirit of frivolity, relying on my good sense to reject it. I would ask the Deputy, and other Deputies, to consider the practical effects of this amendment: "In the case of the seizure of goods, animals or other chattels, which exceed in value the full amount of the debts by 25 per cent., this protection from action shall not apply."
Take, for example, that there is a judgment decree of £18, and a seizure by the under-sheriff of a horse worth £30. There is no protection from action because the value of the goods seized exceeds by more than 25 per cent. the value of the debt. Yet there may be no other seizable chattel. It would come to this: in the absence of any other seizable chattel the under-sheriff ought not to seize the horse worth £30. Obviously, the necessity for any seizure at all should never arise. The clear duty of the judgment debtor would be to sell the £30 horse, pay his debt, and buy a horse worth £18, as more suited to his financial condition.
Acceptance of the Deputy's amendment would involve most extraordinary consequences in that way. It will frequently happen that the only seizable chattel very considerably exceeds in value the amount of the debt. In the absence of the debtor himself taking the proper step of disposing of the property in order that he may pay his debt, and retaining the balance, the officer of the court must come along and do that transaction for him. I could not accept the Deputy's amendment, and I doubt if, on reflection, he will consider that the amendment embodies a very sound principle for incorporation in a statute.
In view of the Minister's acceptance of the last amendment, and in view of the light thrown upon the possible working of this amendment of mine, I am not going to be as inflexible as the Minister has shown himself to be in other regards in connection with this Bill. I will withdraw the amendment.
Amendment, by leave, withdrawn.
Question: "That Section 12, as amended, stand part of the Bill"—put and agreed to.
SECTION 13.
No action shall lie against any under-sheriff for or on account of his having taken in execution under any writ offieri facias, decree of a Civil Bill Court, warrant, certificate, or other document, any goods, animals, or other chattels found in the house or other place of residence of the debtor and claimed or alleged (whether such 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, 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.
I move:—
In line 34, after the word "residence" to insert the words "or on the lands."
I think in most cases the sub-sheriff would be more interested in the animals found on the land than in the house.
Mr. O'HIGGINS
The amendment is accepted.
Amendment put and agreed to.
I beg to move:—
In line 34, after the word "and," to add the word "afterwards," and in line 39, after the word "debtor," to delete all words to the end of the section and to substitute in lieu thereof the words "if at the time of the seizure of such goods, animals or other chattels, the wife or husband of the debtor, or the parent or child of the debtor does not claim that such goods, animals or other chattels are his or her property, or that the under-sheriff has not other reasonable cause for knowing that such goods, etc., are not the property of the debtor."
The extraordinary effect of the Section as it stands is that if the under-sheriff seizes goods from an innocent third party, and it is found that he had no right to seize them, as the goods did not belong to the debtor, the aggrieved party, instead of having a claim against the under-sheriff, actually has to seek redress from the debtor. That is an extraordinary state of affairs. A wrong has been done to a person, and instead of righting that wrong by means of claiming against the person who actually did the wrong, action has to be taken against a third person. I would ask the Minister to consider and accept the amendment.
Mr. O'HIGGINS
I am not accepting the amendment on the grounds that the first part of it would result in completely nullifying the Section, which is considered to be very proper and necessary in all the circumstances. People who are prepared to resort to this kind of dishonesty are usually sufficiently well-informed to have the bogus claimants ready on the spot.
As regards the other reasonable causes, one could picture very easily cases in which the actual owner in law of the property was the wife, she having effected the purchase transaction with money given to her by her husband, the debtor, at the very time when he was refusing to pay his lawful debts. In a case of that kind the under-sheriff would be justified in taking the property, even if he had reasonable cause for knowing that the property was not, in law, the property of the debtor. The third party idea and the grievances of the third party have been stressed by the Deputy. In practice, the third party is almost invariably the wife, parent, or child of the debtor living with him, and the Deputy knows quite well that in ninety-seven per cent. of the cases this aggrieved third party has shared in the benefits of the property that was bought and for which the money is owing. Let us take the average case, debts to a local shopkeeper for groceries or something of that kind, and the Deputy will surely not question that the wife or child or parent of the debtor, living with him, has fully shared in the benefits and morally, at any rate, if not legally, shares in the debt. It is quite an easy thing to say to the under-sheriff coming to a homestead, "Oh, that property is not mine, that belongs to my wife; she got it when we were getting married." It is impossible to answer a claim of that kind, and in practice there is no genuine attempt made to disprove it. It would be a proposition beyond the wit of the average under-sheriff to disprove it, and provision to meet those bogus third party claims, which are almost effectively barring the execution of a Court judgment, is absolutely necessary. If the Deputy is in the delightful position of practically free-lance opposition, and if he was in the position of primary responsibility for seeing that the writ of the Courts runs freely, and runs properly, throughout the State he would take a very different view of the matter. I am not accepting the amendment.
It seems to me that some amendment somewhat on the lines of Deputy Heffernan's is required if this Section is to be accepted at all. The Minister has in mind what he calls the ninety-seven per cent. of the cases. Are you going to risk very grave injustice upon the other three per cent. for the sake of a problematical securing of the running of writs, even for ninety-seven per cent. of the cases? Let us take the many instances that may be found in and around the City of Dublin, where the parents live with the sons and daughters-in-law, or alternately, where the sons live with the parents, but have separate rooms, separately furnished with their own particular care and property. The sons and parents may have followed different lines, may have had different education, and may have furnished their own rooms in a different manner from that of the rest of the house. Let us take some of those people who might have been in the mind of Deputy Magennis when this matter was being discussed a year ago. A University student, let us say, who lives with his parents, and who has his own room, has a fancy for pictures; he has his room furnished with valuable pictures. But he is not in close touch with the domestic, family affairs of his parents, nor with his parents' financial affairs. Under this Section the father or mother gets into debt quite unknown to the son, who lives in the same house. The bailiffs will come in, and seeing nothing of particular value in the parents' house, they go to the son's rooms and take these valuable pictures and send them, let us say, to be sold in Belfast, Belfast being an art centre, moryah; they could take away that property of the son, and you are trying to impose upon the son the responsibility of recouping himself from the parents in the courts. I think that is unjust. I do not think you have got a right to invite injustice upon three per cent., even for the sake of doing justice to ninety-seven per cent. The illustration which I have given is not an extravagant one at all. I spoke of pictures. But, take the son's piano. Let us assume that he is a music teacher. Is it a fair thing that that music teacher should have his property taken away for the sake of his father's debts? I would not like to be responsible for my son's debts, and I would not like my son to be responsible for mine, simply because he lives in the same house. I think there is a very grave injustice lying inherent in this Section, and I hope the Minister will find some way of saving legitimate innocent citizens against injustice from the State. The Minister, as I think, is responsible for taking over all the laws and enactments that have been in operation, including the Married Women's Property Act. Does he want to repeal that? He apparently wants to repeal the laws ensuring that sons and fathers shall be entitled to property, to retain their property in their own rights, because this means that the son or father or relative of the debtor is going to be made responsible for another person's debts, simply because he happens to live in the debtor's house. I say that there is occasion for something to be done to prevent the fraudulent transfer of property, but in trying to meet that we must not open the way to the very grave injustice which may well follow the application of this Section 13.
Mr. O'HIGGINS
I put it to Deputies that there may be situations in which it is impossible to have cast-iron safeguards against possible injustice. This is a situation in which it is a matter of weighing the greater evil. I do not imagine that it is necessary for me to elaborate the point that this bogus third party claim is something which is paralysing every under-sheriff in the country. It occurs simply as a hum-drum matter of right that when the under-sheriff comes to seize a particular article he is told "That is not mine at all; it belongs to my wife: my wife's uncle gave it to her.""Such a machine in the yard is the property of my brother-in-law; he lent it to me last year and I have not yet returned it to him." You cannot set up courts in every backyard to try out all these questions of title or no title. The third party claim consequently is the most insidious and most effective bar to the execution of judgments. Any under-sheriff in any county in Ireland will tell you that.
That is one side of the picture. On the other side Deputy Johnson says that a University student, living with his father, may have his pictures seized in respect of his father's debt. He did not say, in his hypothetical case, who was paying the University fees. Presumably the son. Because, of course, if the fees were being paid by the parents it would not be such an outlandish thing, or such a hardship, that the property of the son should be seized in respect of debts contracted possibly by the parent in his attempt to pay the son's University fees.
I am quite prepared if you allow that case to go to the court to take all the facts into consideration, but you want to give the sheriff the right without that inquiry.
Mr. O'HIGGINS
I am not attempting to put a case that theoretically individual cases of hardship might not occur under Section 13 of the provisions of this Bill, but it is simply an administration problem, a question of weighing one evil as against another, and I submit it is a greater evil that there should be wholesale evasion and defiance of the judgments of the court than that, here and there in a particular case, hardship might arise by reason of this provision. We have not been able to arrive at any set of provisions that would give cast-iron security against the possibility of hardship in individual cases. To meet that we have inserted a provision giving to the aggrieved third party the legal rights of recovery against the person in respect of whose debt the property is seized.
But he has no property, and by the facts of the case he cannot pay.
Mr. O'HIGGINS
I disagree. In the vast majority of cases of outstanding decrees it is not because of inability to pay. As I have mentioned inability to pay, I should like to repeat a question I put last year on a similar Bill. When is a man unable to pay his debts? I submit the only reasonable answer to that question is when he has nothing left to sell to meet his debts. And it ought not be necessary that the officer of the Court should come along and effect the transaction of a sale. But that is a side issue, arising out of Deputy Johnson's intervention.
We were faced with this choice of dealing in a summary way with these third party claims or simply enabling a system to be perpetuated which in practice amounts to a successful evasion of Court judgments and decrees. I think we have taken the most effective way to meet the possibility outlined by the Deputy when we give to the injured third party the right of action against the person for whose debts his property was seized and a legal means of recovery. Let us not lose sight of the fact that these third party claims almost invariably come from people who may well be regarded as morally liable for the debt, in so far as they share, and share very fully, in the benefits of the goods in respect of which the debt is owing. Exceptional and fantastic cases may be put up of sons and daughters living in water-tight compartments, buying their own furniture, having no real share in the household economy, but simply being, as it were, lodgers in the house. You cannot legislate for exceptional cases. You cannot legislate for the three cases in the hundred, or the three cases in the thousand, which can be put forward by Deputies in a hypothetical way, as Deputy Johnson put forward his example. You must simply realise, on the one hand, that it is a complete defiance and evasion of the law that this Section is drafted to meet, and that it is that situation which it has to cope with. We are not denying that there may be occasional cases of hardship arising under this Section. We have done our best to meet them by giving the injured third party his right to recover against the debtor. We admit we have not succeeded in meeting it in any real cast-iron way, and we would welcome any amendment purporting to so meet it. We do not believe it is possible to draft any amendment that will meet it in a cast-iron way, but if we are faced, as we are, with the choice between the real, big, serious and practical evil of the wholesale evasion of the law, and the lesser evil of possible individual cases of hardship, the choice is an obvious and an easy one.
I dissent from that last proposition at once. It is not a case of hardship that I am fearing and foreseeing, but a case of actual, gross injustice, and I am not prepared to accede to the proposition that a gross injustice may be permitted in three per cent. of cases, so that 97 per cent. of people who have given credit to debtors and taken commercial risks shall be secured in the payment of their debts. It is one thing to talk about the recovery of debts; it is a business proposition where the creditor took certain business risks which have turned out to be greater than he anticipated. To meet that, the Minister comes forward and says he is prepared to risk this actual positive injustice upon certain citizens, the minority no doubt, for the sake of securing that the risks taken by the creditor should be lessened. There you are weighing up two things that cannot be weighed. It is not a mere case of hardship upon a relative, but a case of absolute injustice, that is likely to happen under this Section. I do not think it is a right way to look upon this: for the Minister to say that if evil must come, let it be on the few rather than on the many.
Mr. O'HIGGINS
I did not say it must come.
I took down your words, and I do not know whether it was a slip, but your statement was practically an assertion that because £170,000 worth of judgment debts were being held and were not being collected under decrees of the court, that no doubt some wrong would happen; but let it happen, was the Minister's argument, to the few rather than to the many. It is no doubt desirable that lawful debts should be recovered, but it is equally desirable that some influence should be brought to bear against the indiscriminate giving of credit. What is going to happen under this is, that you are going to encourage the giving of credit to poor people, because there is an assurance that if there is a better off person living with the poor person, the money can be recovered through the property of the better off person, without any responsibility lying upon that better off person. He or she may know nothing at all about the debt which is entered into, and may have no liability, moral or legal, for it, but now we are going to give and to impose upon that person a legal liability though he or she has no moral liability. The Minister says as regards the debts that it can only be said they cannot be paid when there is no property in the possession of the debtor to be sold. He might have said no property above the value of £15. Let us assume a case of no property in the possession of a debtor other than bed clothing, clothing and a sewing machine. A son lives in the house of his parents, or a parent lives in the house of his son. One of them has other tools of a trade, is, in fact, of a different trade altogether to the other, and these tools may be seized provided there is £15 worth left for the debtor. Clothing may be seized and property may be seized of the son or of the parent for the debt of the parent or the son, as the case may be, provided £15 worth is left behind, and then this person that has no property and is assumed to have no property, is to be proceeded against by the third party for the value of his goods that were seized. I say that this Section is, more than any other Section, an encouragement to the gombeen man. The Minister no doubt has in mind mainly the farmer in the country. I have in mind in this consideration the townsman, and there are very many cases where two or three families, or two or three sections of one family, live in the same house. Under this Section goods or chattels which may be found in the house, but which in fact are the property of another section of the family, may be seized without reference to responsibility. I say that that is opening the way to very grave injustice, and that it is incumbent on the Minister to provide some other method than this of securing his desire, that is, to prevent the fraudulent transfer of goods with a view to evading the payment of debts.
I am not in any sense tied to the words of my amendment, but I think I have made evident to the Minister the change which I would like to have made in the Bill. I would be willing to accept an intimation from him that, at a later stage, he would introduce some words in the Section which would have the effect of changing it from the way in which it is drafted at present. As the Section stands at present, the actual effect of it would be that an under-sheriff, in all cases practically, would seize the property of the wife, the son or the daughter or the father, as the case might be, who happened to reside in the same house as the debtor, and quite regardless of the fact that the property seized did not belong to the debtor. It would not be necessary for the under-sheriff to make the slightest inquiry or to take the slightest precaution to satisfy himself that the property he was seizing belonged to the debtor. The Minister stated that in 97 per cent. of the cases there was a fraudulent transfer of property, but my view of the law is that in no case should the State be a party to imposing an injustice even on three per cent. of the population, and if the State should at any time impose such an injustice, it should accept responsibility for compensating the persons against whom the injustice has been done. Instead of doing so, the State in these cases simply says to the person who has suffered this injustice, "You go and get your money back from the debtor." Perhaps there is no chance of getting the money back. An instance relating to towns was given by Deputy Johnson, but I will give a typical instance of what may happen in the country. Take the case of a small farmer, who has a son working on the road. The son has a bicycle because he finds it necessary for the purpose of his occupation. He simply resides in his father's house, and does not take his meals there. Let us take it that the bicycle is there when the sub-sheriff comes along and makes a seizure for a debt. He seizes the bicycle as the only article of value in the house, and takes it away. The son, who is the real owner of the bicycle, looks for redress when he finds his bicycle taken away, and is told that he can proceed against his father for the value of it.
I think that is not a fair position for the State to take up, and if the Minister would change the Section in such a manner that where a case of gross injustice did take place that the State would accept responsibility for it, I think it would be very desirable. We had an instance of that in England some months ago. The Minister is aware that a number of persons were arrested in that country at the instigation of the Irish Government. When it was found that there was no legal right for arresting these people the English Government accepted full responsibility for compensating the persons arrested for the losses they had sustained because of their illegal arrest. Similarly, I think the State in this country should accept responsibility for compensating people who may suffer grave injustice under the operation of this Section. A small percentage of such cases is bound to happen under all administrations, and I think the State should take responsibility in these cases. I think that is a wrong attitude for the State to take up. I must persist in my amendment, although I am not quite confident that the words I have used are the best, but I am perfectly certain that the Minister could get his legal draftsman to find words to meet the case.
As a Deputy in favour of this Bill, it seems to me that the arguments addressed to the Dáil by the mover of this amendment and by Deputy Johnson should appeal to the Minister to endeavour to find some safeguard in this clause. It seems to me that the clause may lead to grave injustice, because you are giving the sheriff very wide powers, and he may, very naturally as a human being, exercise those powers in a way which would be unjust to the debtor. I do not think that it ought to be the feeling of the Dáil that room should be left for grave injustice, and I would add my appeal, if it is of any use, to the Minister to try and soften the effect of that clause as much as he can.
I think the very essence of law is to protect the property of the citizen. Under the clause as it stands the law will really entitle the representative of the State to deprive the citizen of his property. In other words, the law will put the sheriff in the position of punishing the innocent for the guilty. I think, in plain terms, the Minister said so. That is the essence of his argument. He suggested that if an amendment could be put up in words suitable he would be prepared to consider it. I think no risk should be taken by him that the law, when framed and established, will be liable to do an injustice to one citizen out of three million in the Saorstát. I think it is incumbent on the Minister to see that the law will not be framed in such a way. There are many cases in this country where big and small farmers —the Minister referred to farmers particularly—have marriage agreements under which certain rooms of the house are occupied by them and where they have their furniture and other property. Under this clause as it stands those people in such cases would be punished for the offences of others, and surely the Minister is not going to stand for that.
Mr. O'HIGGINS
I would like to draw attention particularly to the exact wording of the Section as distinct from the amendment. The Section does not say that the sheriff shall or may seize the goods of a parent or a child or of a husband or wife of the debtor, who was residing in the house for the time being. It is not the intention that the under-sheriff shall consider himself at liberty to seize the property of a third party.
It is not the intention, but it is what will happen.
Mr. O'HIGGINS
"The property of a wife or husband of a debtor for the time being residing in the house." It will amount to this in practice, that the under-sheriff is not to consider himself as absolutely barred from the seizure of property which he believes to be the property of the debtor, because the debtor's wife or son thinks fit to state that it is not the property of the debtor but belongs to them. Statements of that kind are very easily and very lightly made and entail no particular consequences to the person making them. It is simply a claim or an assertion which the under-sheriff is not in a position to disprove. Lacking the means of disproving it, he does in practice at present accept it as an absolute bar to further action. The effect of this Section will be that in the future an under-sheriff, having a moral certainty that the property is the property of the debtor, will not be deterred because the debtor's wife comes into the room and says "That is mine, leave that alone. Those things belong to my eldest son, John, who is on his own." Deputy Johnson made the case that if it was admitted not so much that hardship would ensue—which was not admitted —but that there was remote possibility of injustice in a particular case, that that cut the ground from under the Section, that rather than risk that, we should be prepared to let this successful evasion of the law go on—and that because on one side there was a possibility of positive injustice, whereas on the other side it was only a few gombeen men lying out of their money. That is not the case as we see it. There is a sum of £170,000 outstanding at the moment in writs and judgments of the Court—£170,000 at present in the possession of people in whose possession it ought not to be, and at present out of the possession of people who have a legal right to it.
There is no use flinging words about in a loose way, talking of gombeen men and the unwisdom of giving credit. We all know a certain amount can be said for and against credit, and we know credit has helped people to weather bad times, and they were glad to get it. We cannot fling about words which have a definite meaning, and which are words of reproach against a very large section of the community as if the words could be applied indiscriminately. The person who has got a decree of the Court has got it after substantiating his case before a Court after the defendant has had an opportunity of putting up anything against it that was to be said on the other side. I want to know are we accepting it as a rock-bottom principle that the writ of the Court shall run, or are we accepting it as a philosophical one that the writ shall not run?
Mr. O'HIGGINS
Anyone against whom it can run. I consider it part of my duty to accept without reserve the principle that the writ of the court shall run. I am not in any condition of philosophic doubt about that at all. I consider any questioning of that principle would certainly be improper from a member of the Government, and, I submit, improper from a member of Parliament. Now, is there no positive injustice if people who have got decrees and writs of court in respect of lawful debts due to them are to be denied their remedy because the wife of the debtor bustles in and says: "Do not touch that property, everything in this house is mine, and everything in the yard is my son John's," and "The good man owns nothing but the clothes on his back." Is there nothing to be said against not the actual third person grievance but against the admission that I made that there is under the provisions of the Section a possibility of a fantastic hypothetical case of a grievance occurring? In fact, every Deputy knows there is no comparison. If, on the one hand, you have successful evasion of the law by reason of the systematic raising of a bogus third party claim, if all that can be said against the remedying of that is a fantastic case, put in a hypothetical way, and if it is even admitted there is a possibility of a grievance, the choice should be easy. The law machine must work and the writ of the courts must run, and if in order to effect that it is necessary to bring in a provision which leaves a loophole here and there for some injury occurring, the method proposed in this amendment is not the way of dealing with what is actually an existing problem of very considerable dimensions. I could not accept Deputy Heffernan's amendment. I would undertake to give further consideration to this Section, and, at any rate, probe the possibility of State compensation, in the event of its being clearly established that in fact wrong had been done, and loss had been suffered by a deserving third party, but anything like elimination of that Section, anything like acquiescence in the state of affairs that prevails at present, of what was a bogus third party claim paralysing successfully officers of the court, I would not be prepared to acquiesce in. That Section is vital in the Bill and must stand. I am prepared to consider a further provision for its possible consequence in the three per thousand cases, but the provision in its substance must be part and parcel of this Bill. If it is not, the Bill is little more than waste paper, and if it is not part of the Bill, I see no prospect of making substantial inroads upon the vast amount of arrears there are throughout the country.
I quite see the Minister's difficulty. He wants to ensure that these decrees shall have effect, and that the writ shall run, but I ask him to remember that the writ is against the debtor, and it is no use talking about ensuring that the writ shall run, and then making provision for somebody else to suffer from the inability of the debtor to pay. The Bill is not confined to the £170,000 which has already been decreed. The Bill will last for twelve months and, as likely as not, an attempt will be made to get it renewed, and renewed, and renewed again. It is such an easy way to cater for the interests of the shop-keeping classes and the money-lenders.
The wife of a workman borrows money. The son lives in the house in separate apartments. She is sold out by one creditor. The money-lender can come along and sell out the son, and all the remedy he has is to proceed for the value of the property taken. I think the Minister ought to try to find some other way of securing that the writ shall run, that the legitimate creditor shall be paid, or that the fraudulent debtor shall be made to pay without running, as I say, the risk of a grave injustice to honest, law-abiding and good-intentioned citizens. I have no suggestions to make as to how it is going to be done. I think the principle of this Section is wrong, but I suggest that, in the great majority of cases the Minister has in mind, it is an alleged transfer of property from husband to wife, or wife to husband that is the cause he has to complain about. I ask him to bear in mind the conditions in and about the city of Dublin in non-agricultural communities, where domestic property is the only property available for seizure, not agricultural property, and where many of these big houses are taken by two or three branches of the same family, differently circumstanced. Is each or any one of them to be made liable for the debts of any of the others? Their only remedy after the seizure of their goods for another's debts is to proceed against that other member of the same family. I say it is a grievous evil, and is likely to encourage indiscriminate credit-giving by shopkeepers, and by money-lenders, because where the money-lender sends his alleged agent to look at the house and see what kind of furniture there is, he will look at all the rooms in the house, if he happens to know that there are two or three families of the same name, each related to the other. You are going to make every member of those families liable for the debts incurred by any one of them.
I would press upon the Minister the necessity for re-examining this Section very seriously, to have in view not merely the cases of this £170,000 worth and the cases of farmers saying that the property belongs to their sons, but the probability that debtors in towns, or their relatives, will have injustice done to them by the seizure of their goods because of the relationship, for that is what it means in effect. I doubt whether the amendment is the kind that will secure the immunity from injustice that I would desire. As it stands, I think the Section is likely to have evil effects, and I would plead with the Minister that he would withdraw it with a view to re-casting it in some way which would secure against the injustice that I speak of.
I am willing to withdraw my amendment on the distinct assurance given by the Minister that he will have it reconsidered with a view to inserting some words which may have the effect of protecting the innocent person by means of State compensation, or such other methods of that kind as may be thought fit. I withdraw the amendment.
Mr. O'HIGGINS
I would prefer that the Deputy would allow his amendment to be put. The amendment is, at any rate, hopelessly inadequate and would serve no useful purpose whatever, and I would certainly prefer that it was put on its merits. The undertaking that I have given with regard to the Section as a whole, is not any attempt to strike a bargain. It is simply an undertaking given, having listened to certain considerations urged with regard to the Section as a whole. If I were to accept it that the Deputy was withdrawing his amendment on the strength of that undertaking, I would feel myself to some extent committed to bringing up something on the Report Stage. I do not know that I will be able to bring up anything on the Report Stage. All that I have stated is that I will look further into the Section, and consider the arguments advanced. I may or may not be able to bring up an amendment to this Section on the Report Stage, but I certainly would prefer the Deputy would have his amendment put to the Dáil than that he would consider that a bargain had been made, and that it was certain that an amendment from me meeting the views that have been expressed would come up on Report.
On a point of explanation, I think the Minister misunderstands me. I do not consider it as a bargain. Having heard the discussion, I am not sure that my amendment will exactly fulfill the intention which was at the back of my mind in drafting it, but perhaps the Minister would give me an assurance that if he does not see his way to introduce some amendment on the Report Stage, that he will let me know so that I can introduce an amendment.
Mr. O'HIGGINS
Amendment, by leave, withdrawn.
The question is: "That Section 13, as amended, stand part of the Bill."
I oppose this motion on the grounds, as I have already stated, that the Section is one that will produce injustice.
Question put.
The Committee divided; Tá, 31; Níl, 12.
Tá.
- Earnán de Blaghd.
- Séamus Breathnach.
- Seoirse de Bhulbh.
- Sir James Craig.
- Máighréad Ní Choileáin Bean Uí
- Dhrisceóil.
- Patrick J. Egan.
- Osmond Grattan Esmonde.
- Henry J. Finlay.
- Desmond Fitzgerald.
- Domhnall Mac Cárthaigh.
- Maolmhuire Mac Eochadha.
- Pádraig Mac Giollagáin.
- Seán Mac Giolla 'n Ríogh.
- Eoin Mac Néill.
- Seoirse Mac Niocaill.
- Liam Mac Sioghaird.
- Peadar O hAodha.
- Mícheál O hAonghusa.
- Criostóir O Broin.
- Seán O Bruadair.
- Partholán O Conchubhair.
- Séamus N. O Dóláin.
- Peadar S. O Dubhghaill.
- Pádraig O Dubhthaigh.
- Eamon S. O Dúgáin.
- Donchadh S. O Guaire.
- Séamus O Leadáin.
- Fionán O Loingsigh.
- Thomas O'Mahony.
- Caoimhghín O hUigín.
- Liam Thrift.
Níl.
- John Conlan.
- Connor Hogan.
- Tomás Mac Eoin.
- Patrick J. Mulvany.
- Tomás de Nógla.
- Aodh O Cúlacháin.
- Liam O Daimhín.
- Mícheál R. O hIfearnáin.
- Domhnall O Muirgheasa.
- Tadhg O Murchadha.
- Pádraig O hOgáin (An Clár).
- Patrick K. Hogan (Luimneach).
Motion declared carried.
SECTION 14.
(1) Whenever an under-sheriff in any county or county borough to which this section applies shall levy execution under any writ, decree, warrant, or other document, or shall receive payment of the sum leviable under any such writ, decree, warrant or other document, he shall, in addition to all charges leviable under any enactment, rule, or order in force at the passing of this Act, or under any provision of this Act other than this section, levy a sum (in this section called a percentage) calculated at the rate of one shilling for every pound of the sum leviable under such writ, decree, warrant, or other document.
This sub-section shall not apply to any sum of money leviable under any writ, decree, warrant, or other document which is paid to the under-sheriff within one month after the passing of this Act, or within one month after the writ, decree, warrant, or other document is delivered to the under-sheriff for execution, and, in either case, before the writ, decree, warrant, or other document is executed.
(2) The percentage levied under this section shall be paid into the Exchequer.
(3) This section shall apply to such counties and county boroughs as the Minister shall from time to time by order appoint.
I beg to move:
In sub-section (1), line 56, to delete the words "one shilling" and to substitute therefor the words "six pence."
Mr. O'HIGGINS
I cannot accept the amendment. We went very carefully into the question of the additional expense which will fall to be incurred as a result of this Bill, and have come to the view that five per cent. is little enough to add to the Bill of any debtor who comes under this Section. The Deputy will note that all present debtors do not come automatically under this Section. "This Section shall apply to such counties and county boroughs as the Minister shall from time to time by order appoint." In other words, it would not be proposed to use that Section indiscriminately, or to apply it automatically to all bailiwicks, but only to places where it is clear that an arrears problem exists on a large scale and shows no great signs of diminishing at anything like a reasonable rate. Most of the debts are small, and the sum to be added under this Section will seldom exceed £1, which will not go far to build up the fund necessary to compensate the State for the additional expense under the Bill. To accept the Deputy's suggestion of halving the percentage would simply throw an additional and unreasonable burden on the State, and certainly would not meet with the approval of the Minister for Finance, even supposing I were willing to make the suggestion to him. The percentage stated in the Section has been arrived at after very careful examination of the merits and is not open to alteration.
I would like to ask the Minister if this percentage goes to the under-sheriff or to the State?
Mr. O'HIGGINS
That being the case, in view of the Minister's statement, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move:—
To add at the end of sub-section (3) the words—
"Notice of the making of an order under this Section shall be given by the Minister not less than one month before the order is to come into effect by publication in two newspapers circulating generally in the county or county borough to which the order relates."
This is an amendment which I think will meet with the approval of the Minister, inasmuch as it simply requires that the new powers that the Section gives shall be made known a month beforehand to the district to which it is intended to apply. I suggest that is reasonable.
Mr. O'HIGGINS
I would be prepared to accept the principle of the amendment, and would promise to embody its substance, perhaps in some different language, in an official amendment for the Report Stage.
I accept that assurance and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question: "That Section 14 stand part of the Bill"—put and agreed to.
Sections 15, 16 and 17 ordered to stand part of the Bill.
SECTION 18.
(1) Whenever an assistant under-sheriff is attached under this Part of this Act as assistant to the under-sheriff of any county or county borough, one moiety of the salary of such assistant under-sheriff for the period during which he is so attached shall be defrayed by the council of such county or county borough, and shall, in the case of a county, be paid out of the poor rate as a county-at-large charge, and, in the case of a county borough, out of the rate or fund out of which the general expenses of the council of the county borough are payable or out of any other rate or fund which the Minister for Local Government shall on the application of the council approve.
(2) The amount of the salary of an assistant under-sheriff of which one moiety is to be paid by the council of a county or county borough under this section shall be certified to such council by the Minister, whose certificate shall be final, and one moiety of the amount of such certificate shall be paid by such council to the Exchequer.
On behalf of Deputy Corish, I beg to move that this Section be deleted, the grounds being that it is unreasonable to ask the county to bear half the cost of the assistant under-sheriff and other expenses that may be involved. If all that has been said by the Minister is valid, it is not a case for throwing the responsibility upon the county. It is essentially a case for bearing it out of the National Exchequer. I do not think any good case can be made for throwing such an extra burden upon the local authority for emergency legislation in temporary measures such as this.
Mr. O'HIGGINS
This Section seems to us a proper one to be embodied in the Bill. While recognising Deputy Corish's anxiety to relieve the local authority's burden, I doubt if a case for his amendment can be substantiated. The local authorities will unquestionably utilise the assistant under-sheriff for collecting, say, rates.
Supposing there are none outstanding?
Mr. O'HIGGINS
If conditions in the county are so ideal that there are no rates outstanding, it seems to me that conditions otherwise will be such as not to call for the service of an assistant under-sheriff. I wonder did the Deputy advert to the fact that under the existing law the local authorities pay half the salaries of the under-sheriffs? Where the enforcement of judgments and writs has fallen into such arrears that it is necessary to attach to the under-sheriff an assistant under-sheriff, there seems just the same case for saying that the local authority shall pay half the salary of the assistant under-sheriff. It is always an easy role, and locally popular I have no doubt, to play off the county against the State. "Why should we bear this burden—this National charge?—and so on." But counties where there is no such problem of arrears, if they had a proper conception of the position and of the consequences of the Deputy's amendment, might just as well say: "There is no large sum of arrears outstanding here; we have been paying our way; no special measures are necessary to deal with the question of writs and judgments in our county, why should we be called upon to bear the proportion of a national charge because people in other counties have not been paying their way, because the arrears have run into thousands and tens of thousands in some other six or eight counties?" There is an answer to that playing of the county against the State, and that is to play the county, where conditions are good and conditions are normal, against the counties where conditions are bad and abnormal.
There are some counties where the position with regard to the execution of decrees is absolutely as it was in, say, 1913 or 1914, and where the number of decrees in the hands of the under-sheriff represent no more than current business, and where you have a complete absence of an arrears problem. Under a national charge, as Deputy Corish suggests by his amendment, the residents and taxpayers of counties like that would be expected to bear equally with the residents and taxpayers where you have a huge problem of arrears, a figure which simply tells a story of at least passive resistance, if not active resistance, to the machinery of the law. On the whole, I see no substantially equitable case for the amendment, and I do not propose to accept it.
Would the Minister provide for some consideration being given to the local authority who has to pay part of this officer's salary —for that local authority having some voice in the selection of such officer, and of determining whether such local officer is required or not? The Minister takes to himself the right of appointing these assistant under-sheriffs without considering the local authority in the matter, but he imposes on the local authority the burden of paying half the expenses. I would have thought that it was reasonable to say, in special circumstances, such as have been related by the Minister, that it was essentially a case for a national charge, especially when in the answer, I think, to Deputy Heffernan, a few minutes ago, it was stated certain commissions are to go, not to the local authority to help to pay the sub-sheriff, but to the Exchequer. If the Minister said that half is to go to the Exchequer and half to the local authority, then there might be some justification for saying: "We will impose half the cost of this assistant under-sheriff on the local authority." He takes all and gives none.
Question: "That Section 18 stand part of the Bill"—put and declared carried.
SECTION 19.
(1) If and whenever any person (in this Part of this Act called a creditor) shall produce to a District Justice sitting for a court district situate in a county or county borough to which this Part of this Act appliesprimâ facie evidence—
(a) that any debt is due to the creditor under a judgment of a competent court, and
(b) that the person (in this Part of this Act called the debtor) by whom the said debt is payable is ordinarily resident in the court district for which the District Justice is then sitting, and
(c) that the debtor has no goods which could be taken in execution under any process of the court by which the said judgment was given,
the District Justice may make an order (in this Part of this Act called an examination order) that the debtor do attend before him on a specified date to be examined as to his means, and do also not less than one week before the said specified date lodge with the District Court Clerk a statement in writing (in this Part of this Act called a statement of means) setting forth his assets and liabilities, his income, earned and unearned, and the means by which it is earned or the source from which it is derived, and the persons for whose support he is legally or morally liable.
(2) The creditor shall be entitled to inspect and take or obtain copies of the statement of means at any time after it is lodged pursuant to the foregoing sub-section.
(3) In this section the word "judgment" includes any order or decree.
I move:
Section 19: In sub-section (3), line 46, to add after the word "decree" the words "and in this Part of this Act the word `debt' includes any balance of a debt remaining due after payment or recovery of part thereof."
The object of the amendment is to make it clear that in a case where payment is made on account the creditor is not precluded from proceeding for an instalment order for the balance.
Amendment agreed to.
Question, "That Section 19, as amended, stand part of the Bill," put and agreed to.
Sections 20 and 21 ordered to stand part of the Bill.
SECTION 22.
(1) If the debtor fails to pay the debt and costs, or any one or more instalments thereof at the time or times at which the same is or are made payable by an order under this Part of this Act, the District Justice may, on the application of the creditor, order the arrest and imprisonment of the debtor for any period not exceeding three months.
(2) Whenever a debtor is arrested and imprisoned under this section he shall be entitled to be released immediately upon payment by him or on his behalf to the District Court Clerk of the sum of money (to be specified in the order of arrest and imprisonment) consisting of the amount of the debt and costs unpaid at the date of the order (including instalments which have not accrued due at that date) and such further sum (if any) for the costs of the order as the District Justice shall think reasonable.
(3) All moneys paid under this section to the District Court Clerk by or on behalf of the debtor shall be paid by the District Court Clerk to the creditor on demand.
I move:
In sub-section (1), line 12, after the word "fails" to insert the words "without good and sufficient cause."
The reason I move this amendment is that a perfectly honest debtor may fail to comply with the order of a District Justice through no fault of his own. For instance, he may fall sick, or there may be other reasons for not complying with the order. The amendment intends to strengthen the word "may" in line 15 of the Section.
Mr. O'HIGGINS
The Deputy has adverted to the fact that the word used in line 15 of the section is "may," not "shall," and I would have thought that would be sufficient for him. The District Justice has discretion, and it ought to be safe to assume that if the debtor shows good and sufficient cause the District Justice will not impose a penalty. You have all that implicit in the word "may" in line 15. In fact it is equivalent to "the District Justice `shall,' in the absence of good and sufficient cause shown by the debtor," do such a thing. I am inclined to reject the amendment, not that I have any objection to the principle, but on the grounds that it is completely unnecessary. In fact, everything the Deputy is aiming at is embodied already in the Sub-section as it reads.
"If the debtor fails to pay the debt and costs, or anyone or more instalments thereof at the time or times at which the same is or are made payable by an order under this part of this Act, the District Justice may, on the application of the creditor order the arrest and imprisonment of the debtor for any period not exceeding three months."
It is certain that the District Justice will not order the arrest and imprisonment of the debtor for a period not exceeding three months if the debtor can show good and sufficient cause for his failure to comply with the order. I put it up to the Deputy in a purely hardheaded way that the words he wishes to have inserted are not really necessary, and that the idea embodied in the words is already there implicit in the sub-section as it stands. I think to accept the words would be an inelegancy of drafting and a redundancy of thought which ought not to appear in a Bill.
I ask permission to withdraw the amendment.
Amendment, by leave, withdrawn.
Question—"That Section 22 stand part of the Bill"—put and agreed to.
Question—"That Section 23 stand part of the Bill," put and agreed to.
SECTION 24.
This Part of this Act shall apply to such counties and county boroughs as the Minister shall from time to time by order appoint.
May I take it the same promise applies to this amendment as to the former one?
Mr. O'HIGGINS
Yes.
Amendment:—To add at the end of the Section—
"Notice of the making of an order under this section shall be given by the Minister not less than one month before the order is to come into effect by publication in two newspapers circulating generally in the county or county borough to which the order relates."—(Tomás MacEoin), not moved.
Question—"That Section 24 stand part of the Bill"—put and agreed to.
Question—"That Section 25 stand part of the Bill"—put and agreed to.
SECTION 26.
(1) Proceedings by way of interpleader may be instituted by an under-sheriff before a District Justice in any case in which the under-sheriff shall have taken in execution or intended execution any goods, animals, or other chattels under any writ, decree, warrant, or other document, and such goods, animals, or chattels are claimed by some person other than the debtor, and the value or the proceeds of the sale (if any) of such money, goods, and chattels does not exceed twenty-five pounds.
(2) On the hearing by a District Justice of any interpleader proceedings under this section, the District Justice shall have jurisdiction to hear and determine all matters in issue between the parties, including liability for costs, and to make such order thereon as justice shall require.
I beg to move:—
In sub-section (2), line 14, after the word "including" to insert the words "the amount of and."
The sub-section as it stands gives the District Justice jurisdiction on the question of liability of costs; the effect of the amendment is to give him jurisdiction as to the amount of costs.
Amendment put and agreed to.
Question—"That Sections 26, as amended, and 27, 28 and 29 stand part of the Bill"—put and agreed to.
Question—"That the Title stand part of the Bill"—put and agreed to.
