Dáil Éireann díospóireacht -
Tuesday, 23 Feb 1926

Vol. 14 No. 10

ENFORCEMENT OF COURT ORDERS BILL, 1926—SECOND STAGE.

MINISTER for JUSTICE (Mr. O'Higgins)

The object of this Bill is to make provision for the execution of the judgments and orders of the courts established under the Courts of Justice Act, 1924. Deputies are aware that up to the present orders of these courts have been executed under the code which applied to the execution of judgments of the courts of the old administration, with certain additional powers which were conferred by the Dáil under temporary legislation. The temporary Act expires on 31st March next, and the provisions of this Bill are proposals for permanent legislation which shall govern the execution of court orders. Broadly speaking, the scope of this Bill is to bring the old code into line with the new conditions. That is something which is necessary, whether the old code was satisfactory or not. In the next place we recognise that the old code was not, in fact, adequate or satisfactory, and we seek not merely to modernise it, but to strengthen it as against, obstinate or fraudulent judgment debtors. Now, a word as to the necessity for bringing the code governing the execution of court orders into line with the developments under the Courts of Justice Act, 1924. The order for the enforcement of a judgment of the High Court of Justice—usually called a writ—was executed in the past by the under-sheriff under a code which was not so much written or statutory as traditional, based on case law. The decrees of the County Court on the other hand were executed by the same official, the under-sheriff, but under an entirely different code which is altogether statutory. The fees which were payable to the under-sheriff in High Court cases were fixed by a different authority and were different to the fees which were received in the County Court cases. To take simply one illustration of the results of this dual system: if the under-sheriff travelled in the past 30 miles to effect a seizure on account of a County Court judgment, and found no chattels to seize but enough of money in possession of the debtor to satisfy the debt ten times over, he could not seize the money. That is in the case of a County Court judgment.

Moreover, if he made a successful seizure of chattels he could not charge for the expenses of the day, such as travelling expenses in respect of himself and the bailiffs. On the other hand, in the case of a decree of the High Court, it would be open to the under-sheriff to seize the money, and it was open to him also to charge any expenses against any seizure that might be made. As regards the other courts, the Petty Sessions Court in the past had practically no civil jurisdiction, and such warrants as were issued from that court were executed by the police. Under the Courts of Justice Act, 1924, we have the High Court, Circuit Court, and District Court. The High Court has unlimited civil jurisdiction. The Circuit Court has a very extensive civil jurisdiction, unlimited when the parties consent, but limited by Statute in the absence of such consent; and the District Court has civil jurisdiction up to the amount of £25, which would mean that the District Court will deal with an enormous volume of business—just that kind of civil business which is most likely to lead to the under-sheriff's office, namely, debts due to shopkeepers and traders in respect of household requirements. The principle which is incorporated in the Bill, and set out in Sections 2 and 3, is that it is immaterial so far as the execution of the court order is concerned whether the order was made in the High Court, the Circuit Court or the District Court. In future it is proposed that every court order in civil cases is to be executed by the under-sheriff, and the powers and authority which the under-sheriff is to have are in all cases like that which he formerly had in the High Court case, reinforced by the special powers which this Bill specifically gives to him. To that general statement there are two exceptions. The first exception is in the case of arrest. Where the order of the court is for arrest it is to be executed by the Gárda Síochána, and not by the under-sheriff. Certain arrests in the past had to be made by the under-sheriff personally, and it was not open to the police or to anyone other than the under-sheriff to execute. That exception will be found in Section 22. The second exception is that orders of the District Court in very small cases will also be executed by the Gárda Síochána as laid down in sub-section (3) of Section 3.

As regards the first exception, arrests by the under-sheriff in the past were in practice very rare, and where they did take place they were troublesome and expensive. One case came under my notice personally where the High Court ordered the arrest of a man who persistently refused to comply with the injunction of the court. If the police could have arrested him on the order his arrest would have been effected within a very short time. He succeeded in evading the under-sheriff for years, and I am not sure that he was in fact ever arrested under the order of the court. There are also some cases under the Enforcement of Law Act where the court is satisfied the debtor can pay, and accordingly issues an order that he can be imprisoned in default of payment. In these cases once a man is taken into custody he almost invariably pays. At present the debtor has to pay the under-sheriff's fees and expenses, and before a sheriff moves to make arrest it has happened that creditors have dropped the matter and waived their claim rather than incur the expenses of paying the under-sheriff, and the debtor in these cases succeeded in defying the order of the court. The second exception which I mentioned is that set out in sub-section (3) of Section 3. There are certain small District Court cases in which the order of the court will continue to be carried out by the police, for the reason that we have found by administrative experience that in these small cases the machinery of the under-sheriff's office is costly, and out of proportion to the sum involved. There is usually a Gárda station within easy reach of the debtor's premises, and as a rule the debtor pays, if he can, on a visit by the Gárda Síochána. No expense is incurred by that, whereas if the under-sheriff were called on there would be fees and travelling expenses possibly amounting to many times more than the sum involved.

Section 4 may be considered a concession to sentiment. It will please Deputy Davin to know that we propose to get rid of the title of "bailiff" and to create a corps of persons to be called court messengers for the assistance of under-sheriffs.

Mr. JOHNSON

Will they be confined to delivering messages?

Mr. O'HIGGINS

They will be executing the orders of the court. The creditor's hope of getting his money from an obstinate debtor will, in many cases, depend upon the character and energy of these men, and it will be my aim, in so far as I can secure the concurrence of the Minister for Finance, to fix a scale of remuneration which will attract a sufficiently good type of man and provide an incentive to him to do his work honestly.

In Part I. of the Bill, Deputies will find that Sections 8, 9, 10, 11, 12 and 13 are practically incorporated as they stand from the temporary Act which is in force and which will continue in force up to the 31st of next month. These sections have been before the Dáil before and they have been discussed and considered by the Dáil. They have been in operation for some years now. When the last renewal of the temporary Act was before the Dáil, I indicated pretty clearly to the Deputies that the permanent proposals which we would make, governing the execution of Court Orders, would not differ widely or essentially from the main provisions of the temporary legislation.

Part II. of the Bill—the portion dealing with the examination of debtors—is also a retention of the provisions which exist in the present legislation. That is a portion of the Act which has given considerable satisfaction to the country. Practising solicitors in the country assure me that by means of the powers set out in that portion of the Act debts are recoverable which were not recoverable in the past at all. Before these provisions were adopted it was often a matter of very considerable difficulty to recover a debt, even after the Court had given its decree. It was very difficult to recover from a man who had a source of income but no property capable of seizure by the under-sheriff. A man could live in a hotel and contract debts, have decrees given against him by the Court, and successfully evade the payment of his judgment debt in the absence of the special powers set out in Part II of the Bill. Under that portion of the Bill the debtor may be summoned to attend in Court for examination as to his means, and there can proceed there before the Judge or Justice a detailed cross-examination of the debtor as to his ability to pay. If, as a result of his examination, the Court is satisfied that the judgment debtor is in a position to pay, and is fraudulently evading payment of his lawful debts, it is open to the Court to make an order that he shall pay either by way of lump sum or by way of instalments, and that he shall proceed to clear off his liability.

In Section 18 Deputies will note that:—

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 Justice may, on the application of the creditor order the arrest and imprisonment of the debtor for any period not exceeding three months, and thereupon the debtor shall be arrested and imprisoned accordingly.

Imprisonment in that case is not imprisonment for debt. It is imprisonment for contumacy, for failure to obey the order of the Court, after the Court has satisfied itself by examination, and on the evidence placed before it, that the debtor is, in fact, in a position to pay.

The other section to which I would like to direct the attention of the Deputies, because it is new, is Section 24. In the past cases have come under notice, where, under the judgment of the Courts, clear possession of a house has been given by the under-sheriff to the owner. Very often that process of placing a man who has got his judgment from the Court in possession is one involving a certain amount of trouble and expense. What has happened is that the owner who has secured possession in that way locks the door and goes away, and the tenant who has been ejected comes back and retakes possession. If in the course of retaking possession he uses violence in re-entering, that would be an indictable offence. But if he happens to have a duplicate key of the house and secures entrance I am advised, as the law stands, he commits no offence if no violence is used, and the legal owner has to commence once more to set the machinery of the law in motion to secure his ejection. I simply put it to Deputies that that is reducing the process of the court to ridicule. It is not a right or proper thing that, after the owner has secured possession of his house under the judgment of the Court, he should be placed in the position, simply because the other party secures peaceful re-entry, that his judgment is so much waste paper, and that he has to proceed once more to seek redress from the courts. Section 24 therefore is designed to cover that position, and I am trusting that the Deputies will agree with me that the owner, having secured possession of his house, ought not be put in the position where he would be compelled to stand day and night over the premises which he had just recovered possession of, possibly at considerable expense.

The portions of the temporary legislation which disappear in this Bill are: (1) the provision for appointing under-sheriffs (it is considered that it is not necessary to retain that power); (2) the imposition of a special levy of one shilling in the £ against defaulting debtors; (3) the protection of the under-sheriff against action in cases where he makes an unnecessarily large levy.

Certain provisions of the temporary legislation which were designed in favour of the bona fide debtor are incorporated in the present Bill. Section 7, for instance, retains the increase to £15 in the value of household goods which must be left with the debtor. The figure in the past was £5, and, on representations from Deputies when the temporary Bill was going through, that amount was raised to £15. It is considered advisable to retain that sum.

Section 20 of the present Bill gives the Court power to stay execution and to order payment by instalments. That is an extensive and useful power. If a judgment debtor comes in good faith and puts his circumstances honestly before the court, there is no reason under that section why he should ever be ordered to pay anything which he is not in fact in a position to pay. If he puts his circumstances before the Court and manifests a genuine desire and intention to pay over a period according to his financial position, it is open to the Court while granting a decree to make an order staying execution and making provision for payment by instalments.

There is, perhaps, one section of the Bill on which I should comment. It is Section 13:—

No action shall lie against any under-sheriff for or on account of his having taken in execution under any execution order, any goods, animals, or other chattels found in the house or other place of residence or on the lands of the debtor and claimed or alleged (whether such claim or allegation does or does not prove to 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.

There has been comment on the proposal to incorporate that section in the permanent legislation, and I should like to say just a few words in its defence. For one thing, it has been operative law now for three years, and while I receive a great many complaints from a great many people about hardships arising, or alleged to arise under administration, I have never received a single complaint arising under that section of the existing Act—not one. While I do not want to urge it unduly, I suggest to Deputies that if, in fact, there has been hardship—if, in fact, there have been any good grounds of complaint—complaint would reach us, because complaint reaches us even when the grounds are not particularly good. But no single case has been brought to my notice where the discretion of the under-sheriff under the provisions of the existing legislation has led to hardship.

When the temporary Act was passed a special circular was issued to the under-sheriffs as to the spirit in which that particular section should be used and administered. They were told that the section does not mean that they were empowered to seize, or that they ought to seize, the goods of any person other than the judgment debtor's; that the spirit of the section was that, where they were satisfied, where they themselves were convinced that the third-party claim advanced in a particular case was a bogus claim, they should feel free to go ahead.

Deputies really ought to consider very carefully whether this is not eminently a matter which can only be satisfactorily dealt with by leaving it to the discretion of the under-sheriff to make his own decision in a particular case. The alternative to that is that, after your court machinery has worked, after your judge has given his time and thought to the hearing of a particular case, the machinery of your courts can simply be reduced to impotence and ridicule by the bogus third-party claim. "Do not touch that, that belongs to herself; such a thing belongs to my eldest son; that was given to my daughter by an uncle.""Then what property in the house is yours?""Nothing; I own nothing in this house; everything in the house belongs to some one or other member of my family." You cannot meet that claim; you cannot rebut it. It is impossible to prove the ownership of a particular chattel in the house of a judgment debtor; it is impossible to disprove the assertion that a particular piece of property in the house belongs to someone other than the judgment debtor. That is the position that you are faced with: choosing between leaving it open to the decrees of your court to be defied and set at naught by the simple expedient of advancing a third-party claim to the property that the under-sheriff casts his eye on, or leaving a certain administrative discretion to the under-sheriff, so that he will feel free to proceed in any case where he is satisfied that the third-party claim is simply bogus and designed to evade and defy the orders of the court.

When the temporary legislation was before the Dáil we had very considerable discussion on that section, and the Deputies opposing the granting of such a power and discretion as that to the under-sheriff drew a very gloomy picture indeed of the consequences that would follow if the law stood as it was proposed to have it. We were told that under-sheriffs would run amok, would seize property belonging to anyone and everyone except the judgment debtor. We were told that the power would be abused. The reply to the suggestion that the bogus third-party claim simply enabled the courts to be successfully defied and reduced to impotence was, that bad as that state of affairs was, the granting of this power and this discretion to the under-sheriff would be infinitely worse.

Now what is the position? For three years the under-sheriff has been vested with this discretion, and in no single case has a complaint reached me, or any official of my Department, of abuse or excess by under-sheriffs in the exercise of that power. Therefore, after mature reflection, I decided, when this permanent Bill was being drafted for the consideration of Deputies, to include this section. I believe that it should be included, and I believe that the alternative to its inclusion is simply to re-open the possibility of wholesale defiance and evasion of the orders of your courts. Under the Temporary Acts, considerable progress has been made in bringing the number of unexecuted decrees in the country down to something approaching a reasonable figure. On the 31st March, 1924, there were, in the hands of the under-sheriffs, unexecuted judgments to the number of 7,022, representing a money value of £157,043. On the 31st January of this year the position was that there were 3,434 unexecuted judgments in the offices of the under-sheriffs, representing a sum of £69,910. That, of course, is not quite a normal position, but it represents a very considerable reduction on the state of affairs that existed two years ago. The number of unexecuted judgments in the hands of the under-sheriffs at the moment is not quite current work; there is still there a certain proportion of arrears, but we are almost down to current work because decrees come into the hands of the under-sheriffs at the rate of about two thousand per month, and the figure of 3,434 unexecuted decrees on hands is not very alarming.

If the court orders are to be executed automatically as they should be, and if the judgment creditor is to get the benefit of the decision of the courts, then I feel it is necessary to provide that that decision cannot be set aside simply by the advancement of the third-party claim—the third-party claim which no under-sheriff could hope to disprove. The mere assertion of it stays his hand. You cannot expect to be able to get officials who will be capable of disproving a claim of that kind. He has an order of the court that he is to seize for a debt to the amount of X pounds. He goes to the house of the judgment debtor and, surveying the property, decides: "Well, I will take this article." He is met with the answer: "Oh, but that is not mine, that belongs to my wife. It is her separate property." Well, then he says: "I will take this." He is told that is somebody else's, and so on. No under-sheriff could disprove that claim. He must simply stay his hand automatically once the claim is made. He could not enter into a discussion there and sift the genuineness or the validity of the claim. By what process could he hope to arrive at any result?

In the past, where the bogus third-party claim was an effective bar to the action of the under-sheriff, a great many of the decrees of the courts were so much waste paper. Deputies have to decide whether that is a desirable state of affairs or not, and whether it is not better to do as I propose to them to do, to vest an official of your courts —the under-sheriff—with discretion so that in a case where he believes the third-party claim is an utterly bogus claim, he will be free to proceed without the threat, which was the position in the past, of an action—a personal liability—if by any chance he should make a mistake. No under-sheriff will proceed to make a seizure of property with that prospect hanging over him: that if, by any chance the judgment debtor, or any other person, is able to establish that the particular property which he seized was not the personal property of the judgment debtor he would be liable for an action. An official ought not to be liable personally for an action in the bona fide discharge of his duty. The situation which obtained in the past simply brought about the position that once a third-party claim was brought forward the under-sheriff went away and returned to the judgment creditor nulla bona— that there were no goods there that he could seize, and why? Because every article of property in the house was claimed by some member of the family other than the judgment debtor. That is the reply to the criticisms of this section. The alternative to its incorporation in the Bill is simply to leave it open to every fraudulent judgment debtor in the country to arrange with the members of his family that each of them will claim as his or her personal property every article in the house which the under-sheriff sets his eye on. Deputies must take their choice, and if Deputies strike out that section from the Bill then there must be no complaint in the future from any quarter that the execution of the orders of the courts is not proceeding as efficiently or as satisfactorily as it ought to proceed. I warn Deputies solemnly that if that section is deleted from the Bill many and many a decree of the courts will go into the wastepaper basket, and many and many a judgment creditor, after he has gone through all the legal processes and paid his lawyer's fees, will find that he has in his hands a worthless scrap of paper. I put it to the good sense of Deputies, to the responsibility of Deputies, that that is not a desirable position. It is not going to make for the credit of the country generally, or for that better commercial atmosphere which we all hope to secure. If the writ of the court does not run freely throughout the area of the State, then you will have an unfavourable commercial and economic condition. For one thing, people will not lend, people will not give credit if they do not feel that the means of redress are there for them: if they do not feel that when and if they have to have recourse to the courts, the judgment of the Courts is going to be worth something to them.

On examining the merits of the case, I had no hesitation whatever in deciding to ask Deputies to accept this section as part and parcel of the permanent law of the State. The alternative is not one that is attractive. It is simply putting a premium on dishonesty, a premium on fraudulent bogus third-party claims, to say that wherever any such claim is advanced the under-sheriff must stay his hand or go ahead at the risk of an action where he himself would be personally liable for damages. I do not think that there is any other section of the Bill I want to comment particularly on. I move the Second Reading.

Mr. JOHNSON

The objection I have to the Bill before us is similar to the objection I had to the previous Bill, that is to say, it approaches the whole question from the point of view of the trader who aims at getting trade by giving credit. It is a drive at the system of cash trading, that is—it encourages the "tick" trader and the travelling bagman to persuade people to buy in the belief that they will not have to pay all at once, that they can pay in instalments. He is quite prepared to persuade and almost to force a purchaser, because he knows that there is going to be a greatly enhanced chance of getting payment for goods which, even originally, have been grossly overcharged. That is relieving the trader of the responsibility that devolves on him of seeing that the person to whom he gives credit is a person of some character. I think the whole conception behind the Bill is that of the small shopkeeper who is anxious to extend trade and is prepared to give out credit illimitably for the purpose of getting that trade, to get people into his books. Having got them into his books, he thinks he can charge anything he likes. It is because I think the Bill is catering unduly for that element in the community that I think it is bad in several of its clauses and should not be passed in its present form.

The Minister has argued in favour of Section 13 and lays stress on the fact that he has had no complaint. Well, he may think that an important justification for including this provision in permanent legislation, but he explains that he circularised all the under-sheriffs, pointing out to them how this section was to be administered. If he had not circularised them to that effect would there have been any complaint? If the under-sheriffs took the law as it stands and took advantage of the position laid down in the legislation without any direction from the Minister for Justice, I wonder would he have many complaints? What is the likelihood in the future, regarding the administration of this law as permanent legislation? Bear in mind it is to be part of the permanent legislation, and under-sheriffs ought not to be liable to be directed by the Minister for Justice as to how they should carry out the decrees of the Court. The effect in the future may be very different from the practice under the temporary legislation which is conditioned by the Minister's definite instruction. I cannot see the justice of making the wife, the husband, the son or the daughter responsible for the debts of the father, the mother, the son or the daughter, as the case may be, simply because they happen to live in the same house.

I do not know, by the way, whether the word "child" in this section refers only to minors and will not have effect in respect of adults who happen to be sons or daughters of the debtor. That is a matter, I daresay, that will have to be considered on the Committee Stage. But surely we ought to assume that the creditor who gives credit has had regard to the risks being run, the character of the debtor and the general likelihood of his or her paying the debt. If we say, that because Peter Murphy has gone into debt, Margaret Murphy must be responsible for paying it, that seems to me to cut against all reasonable property rights and to say that the son or the father must be liable for the father's or the son's debts, is again a further drive at what hitherto were conceived to be the rights of the father or the son as individuals. I think that the legislation should assume that the creditor, in giving credit—and I am dealing now with the small purchaser; in the great majority of cases this particular provision applies rather to the small purchaser and the small trader, household goods and not merchant goods—has taken into consideration all the chances of the debt being paid, and should not be encouraged to give credit by the thought that there is, in the statute, a provision which secures him by saying: "If I cannot get the debtor's goods, I can get his wife's, his daughter's, or his son's." I think the House would be well advised in refusing to pass this section.

Then the Minister has taken credit for having retained the £15 limit, but again I say that that is still too low. The section refers to wearing apparel, the bedding of a person against whom an execution shall be levied, the necessary wearing apparel of a family, which presumably includes grown-up sons and daughters who may be in the house, and the tools, the implements of his trade. These may include a sewing machine or joiner's tools and may be the necessary means by which the person would be able eventually to pay the debt. Yet exemption is granted only for such articles or chattels to a total value of £15. I think the limit is entirely too small.

But taking the Bill as a whole, the whole conception of it with respect to these provisions regarding the collection of debts is for the protection of the creditor and the minimising of his risks, and in so far as this has effect upon the shopkeeper, or trader, or "tick" draper, as he is called, or the moneylender, I think it is simply an encouragement to that kind of trade. We have far too much of it, and it would be very much better rather to create greater risks for the trader who gives credit under these conditions than to reduce these risks. I do not know whether it is possible, but it would be very interesting to have from the Minister some return showing the number of these judgment debts which have been granted to the moneylender, the credit draper and the man who lives by giving out goods on the instalment plan. There has been an immense increase in recent years in that particular class of trade. It is an unhealthy trade; it induces people to get into debt for goods which are really not necessary, and very often beyond their competence, but they get into that way of purchasing, they get into the toils of these particular traders, and this Bill is designed, as the last Bill was, in effect, to assist that particular class of trader in this country. I think that that is unhealthy, and therefore the Bill to that extent should not be encouraged.

Mr. GOOD

The Minister's statement that debtors in the Free State will in future have to make a better attempt to discharge their liabilities than they have done in the past will be welcome news to the commercial community, because one is sorry to have to say that the view seems to have got abroad amongst creditors to-day that there is very little use in following debtors, owing to the many loopholes that they seem to have for evading their liabilities. That is a condition of affairs that should be put an end to at the earliest possible moment.

Mr. O'HIGGINS

It does not exist.

Mr. GOOD

I am only stating the view held by the commercial community, in view of the importance of credit to trade. I cannot agree at all with what Deputy Johnson has said as to the importance of limiting credit. The whole foundation of business and of trade is credit as we know it to-day, and the more we attempt to limit credit the greater will be the limitation of trade. The Minister apparently disagrees with the view of the commercial community that there is no use in throwing good money after bad in following many debtors in the Free State to-day. Might I remind him of the figures he has given us? He has told us that there are at the moment unexecuted judgments to the number of 3,434, representing a sum of £69,910. That appears to me to be a very alarming figure, and if I might put an ordinary interpretation on it, it bears out to the full the view that is held by the commercial community with regard to the difficulty of recovering from, and indeed of following, many debtors.

Mr. O'HIGGINS

It represents current debts.

Mr. GOOD

With regard to the proposals put forward for the purpose of making the decrees more effective, particularly the proposal put forward in Section 13, Deputy Johnson objects to our taking from the debtor's family goods that may, rightly or wrongly, belong to them. I do not know whether the Deputy is aware of the extent to which this family interest appears to enter into goods obtained by a debtor. In a great many cases at present as soon as the sheriff's officers go in to perform their duty they are told: "Oh, that belongs to my wife." By the time they have gone through the property that belongs to the different members of the family they find that the debtor is possessed of practically no property at all.

One rather serious case of that kind came under our notice a very short time ago where a considerable quantity of goods had been obtained on credit. Payment was not forthcoming and when the debtor went to see how far the property had been disposed of he found that practically none of it was available at all. Between the different members of the family and their friends the whole property had disappeared and there was practically nothing left to recover on. That is a very serious state of affairs and by no means an uncommon one in the Free State, and steps ought to be taken, in the general interest of the commerce of the State, to see that such a condition of things should not be allowed to prevail any further—I was almost going to say "than was necessary" but certainly any further than was possible, because it must be within the knowledge of Deputies who travel outside the country that the credit of this State is not good. We find in a great many cases, owing to bad credit, from causes of the kind I have mentioned, that traders have to pay with the order for a great proportion of their goods, and generally that the credit of the State is not at all so good. I agree with the Minister, and I was glad to hear from him that that is not a desirable state of affairs from any point of view and that in the interests of the State the many loopholes that debtors have been taking advantage of should be closed at the earliest possible moment.

There are a great many points in connection with the Bill that I would like to deal with, but before expressing an opinion on many of the proposals I would like to consult those who are more intimately concerned. I suggest that, in view of the importance of the Bill and of the necessity for consulting many interests in connection with these different proposals, as much time as possible should be given before taking up the Committee Stage, so that the different proposals might be carefully examined, and if it should be necessary to suggest amendments, that sufficient time might be permitted in order that these amendments might be considered and put forward.

Mr. DAVIN

I think that Deputy Good has rather exaggerated the position which the Minister has tried to convey with regard to the figures of unexecuted judgments. He says that there are 3,434, representing a figure of £69,910. I would like to know, if the Minister has the figures available, or if he could give them at a later stage, if he regards these figures as normal——

Mr. O'HIGGINS

Not quite.

Mr. DAVIN

——or if he could give us some figures of unexecuted decrees previous to the coming into existence of the Free State, say for 1914, 1915, 1916, or up to 1921, so that Deputy Good might have some idea of the position prevailing previous to the Treaty as well as the position at present.

Mr. HEWAT

Would you make it pre-war?

Mr. O'HIGGINS

Yes.

Mr. DAVIN

If you like. Whatever we may think of the system under which people live in the country, where they have been or will be compelled for some time to come to get credit from the local shopkeeper, we have to realise, and I can say so from experience, that it is only in exceptional cases that people go in and incur debts having made up their mind that they have no intention of paying for the goods they take from the shop. There is the fact that, as a result of the disturbance in the country and the subsequent demoralisation, there may be a greater number of people so disposed to-day than there used to be in previous times but, as far as I can see, the position is improving and has improved from that point of view. It is for that reason, in spite of what anyone else will say, that I welcome a tightening up of the existing law whether it will be to the advantage of the creditor or of the debtor. I should like to know, from the Minister, although I do not want to put him to too much trouble with regard to figures, at a later stage, what amount of the £69,910 represents shop debts, what amount represents rates and income tax, and how, generally speaking, the figure is made up.

The Minister has dealt, to a great extent, with Section 13. I should like to put this before him. I have heard of cases where farmers and others were decreed for debts. When the sheriff went to execute the decree the farmer concerned had his land let for grazing to some person other than a member of the family. I am surprised to learn from the Minister that he has not had any complaints of that kind, where the cattle of people other than the family of the farmer, have been seized as satisfaction for the court judgment.

Mr. O'HIGGINS

For rates, yes.

Mr. DAVIN

For anything at all.

Mr. O'HIGGINS

No, for rates.

Mr. DAVIN

Will he point out how he will deal with a case of that kind? Does he propose to continue the existing law whereby an under-sheriff or, as he is now styled, a court messenger, will be held responsible for taking the property of people other than those against whom the decree is given? In such a case I think it would be easy to disprove the claim, because the farmer who owns the land, but who does not own the cattle on the land, should be in a position to produce a receipt from the person who has the grazing rights whatever the charge for the grazing rights would be. I know of cases— this is partly why I welcome a tightening up of those laws—where people in my own county discouraged the payment of rates and these were people who could well afford to pay and do not. Deputy Gorey knows all about them.

Mr. GOREY

I know nothing of what the Deputy is referring to. I disclaim all knowledge.

Mr. DAVIN

I was assuming he remembered previous discussions that took place in this House in connection with Bills of this kind.

Mr. GOREY

I should be sorry to associate myself with anything of the kind.

Mr. DAVIN

I should like to ask the Minister with regard to the position of court messengers what type of people he has in his mind as being suitable for such positions, whether it is people who are already in receipt of a pension, such as ex-R.I.C. men or men of that type, or ex-National Army men, or will the people appointed to this position have a pensionable office. I think the Minister is to be congratulated upon Section 20. I think it is fair to assume that scarcely any persons of good standing in the country or with any self-respect will go to the court to defend a claim for debts they owe unless they are unable to pay these debts. I think it is a very fair way of meeting the case of people who are in a bankrupt position, to enable them to put the case before the courts and to try to justify a claim for payment of whatever they owe on the instalment system, no matter how we may have to regret such a system. There are, unfortunately, hundreds of people of the small farming type in the country not able to pay what they owe. That may be due to extravagant living during the years 1919 to 1921 or to other reasons, but it is the fact, and I think the inclusion of such a Section as 20 is a fair way of meeting a case of that kind at the present time.

Mr. WILSON

It has been asserted by people who are friendly to the State that sometimes the sheriff or the under-sheriff who was called upon to execute an order of the courts from peculiar reasons has let the people on whom he is going to make a seizure know of the fact. When the sheriff goes there there is nothing to seize and the result is the writ is marked nulla bona. There are no results from the court proceedings. I should like to understand how and by what means dereliction of duty on the part of under-sheriffs could be checked or what machinery exists in the Department for cases of the type I mention.

I am not making a definite statement. The information has been given me in connection with certain outstanding arrears of rates, and I would like to know whether there could be a remedy for that defect in the administration. I agree with the general principle of the Bill. We all must admit that debts incurred should be paid and that the law should be carried out, so that all recoverable debts shall be recovered. Perhaps the Minister would be able to state how many writs in the past six months have been returned marked nulla bona. He said that there were 3,434 writs, amounting to £69,000, still outstanding. Perhaps the Minister would supplement that information by giving us the number of writs that have only served as so much waste paper. I understand that the number of nulla bona decrees is very considerable, and would indicate that Section 13 is very necessary if the State is to carry on.

Mr. O'HIGGINS

Deputy Johnson confined his criticism of the Bill almost entirely to suggesting that a Bill of this kind, designed to secure the more sure and effective execution of court decrees, is in itself evil, inasmuch as it tends to buttress up and perpetuate the system of credit in the country.

Mr. JOHNSON

Credit to consumers —small traders' credit.

Mr. O'HIGGINS

When one has decided that it is necessary to oppose a particular Bill, one can go a long way in search of a reason. Deputy Johnson went a long way in search of his reason for opposing this particular Bill. The decrees of the courts ought not, it is urged, to be executed, because if they are, traders will be encouraged to give credit, having more or less effective means of redress at their disposal if they are disappointed in their estimate of the character of the debtor or if they are disappointed in their estimate of his financial prospects. I think that is an unsound reason. I think it is a very short-sighted reason. I think that no worse state of affairs could arise in this State, or in any other State, than that in which the writ of your courts would be ineffective. Credit is not simply a question of the small trader and the small purchaser. The Deputy knows that it is part and parcel of our whole commercial civilization—that there are people who receive their income in instalments throughout the year, whether weekly or quarterly or half-yearly instalments, and who live in the period in between on credit in varying degrees. Their word, their personal security, their integrity is accepted by the trader, who believes in their intention and ability to pay. I submit that facilities of that kind are necessary for large numbers in the community and that they will not be forthcoming if you have not a situation in which there is redress for the trader who, for one reason or another, is disappointed in his estimate of the man whom he allows to contract debts.

Mr. JOHNSON

Does the Minister suggest that these facilities were not forthcoming in the days before the first Bill of this kind was passed?

Mr. O'HIGGINS

They have been forthcoming, but if the Deputy is referring me back to the years 1922 and 1923, I should say that there was a very considerable tendency to curtail them.

Mr. JOHNSON

I am referring the Minister back to pre-war days or, if he chooses, to any time at which history ran normally.

Mr. O'HIGGINS

If the Deputy is asking me to agree with him that there may be too much credit in the country and that it can become an evil and an incubus in certain circumstances, I will agree; but the remedy does not lie in the direction of allowing an atmosphere of insecurity and uncertainty to grow up about the question of whether or not your court decrees are going to be executed.

Mr. JOHNSON

Would the Minister make the case that the situation pre-war was such that there was necessity for this kind of legislation? In the case of the original Bills, it was stated that this kind of legislation was demanded because of the prevailing circumstances. Does the Minister now allege that circumstances pre-war were such as required this kind of legislation?

Mr. O'HIGGINS

I really think they were. I have spoken to solicitors of very long experience and of considerable standing in their profession, and they have informed me that the writ of the County Court pre-war—as far back as the Deputy wishes to go, 1908, 1909 or 1910—was to a very large extent ineffective.

Mr. JOHNSON

Does the Minister suggest that there was not sufficient credit given to consumers against their monthly instalments in those days?

Mr. O'HIGGINS

There was, but we are not going into that. The Deputy knows as well as I do that times have changed, that the whole financial and economic position, not merely of this country but of a great many other countries, is very different now from what it was pre-war. If I am put the question, whether or not the execution of court decrees pre-war was satisfactory, the only possible answer is that it was not satisfactory, that it was eminently unsatisfactory, that I have been assured by men of standing and experience in their profession that the writ of the County Court at the best of times was a very limping, ineffective writ and ran badly. However, I would like to say to Deputy Good—because I think that statements of the kind ought not in the general interests to be allowed to pass unchallenged—that the execution of court orders to-day is far and away above the execution of court orders in any year pre-war he likes to take—1912, 1913 or 1914. It is not the testimony of one solicitor, but the testimony of a score of solicitors, that there was not in those days anything like the certainty, anything like the effectiveness in the execution of the writs of the courts as prevails to-day. The Deputy can, between this and Committee Stage, consult any solicitor friends of his on that matter and find whether or not I am wrong in that statement.

I gave the Deputy some figures. Any figures that run to thousands, when read out, sound big. I gave him the figure of 3,434 for unexecuted judgments in the hands of the under-sheriffs of the State. When you remember that there are about 30 under-sheriffs in the State, the number is not surprisingly large. The money value represented is £69,910. I refer him back to the position on the 31st March, 1924. There were then 7,022 unexecuted judgments in the hands of under-sheriffs, representing a sum of £157,043, so that we have made considerable progress since then. That figure of 3,434 represents little more than normal, current work.

On inquiry, I think the Deputy will find that judgments come into the hands of the under-sheriffs at the rate of about two thousand per month. It will vary, perhaps, here and there, according to when the courts are sitting, and so on, but they would come in on an average at the rate of two thousand per month. That being so, the figure in hand at the end of a particular month, say, January—3,434—is not an alarming figure, which was the word, I think, that the Deputy made use of. It represents something a shade over the actual normal current business for these officials. It is not in any captious way that I take the Deputy up on the general point, but because if it were allowed to go out that there is considerable difficulty, or any degree of uncertainty, in securing that the judgments of our courts are executed, it would have reactions of a kind which the Deputy would be the first to deplore.

I think Deputy Davin's point arises indirectly from Section 13, where the owner of land is a judgment debtor, and cattle grazing on that land are seized in respect of the debt. If the Deputy will make inquiries I think he will find that that position is confined to the question of rates. In the case of rates on land, it seems that live stock grazing on that land can be seized regardless of whether or not they are the actual property of the debtor—the defaulting ratepayer. It is a peculiar position, a special Local-Government-law position, and I suppose it is justifiable only on the basis that, in the absence of such a provision, it would be possible for a man to successfully evade payment of his rates, and there would be the difficulty of proving or ascertaining whether, in fact, a particular horse, cow, or bullock grazing on the land was really his property or not.

The statute simply provides that the land upon which the rates are due, if it is used to graze livestock, is "dangerous land" and the stock upon it can be seized in respect of the unpaid rates. I know that it works out in cases of hardship, but I expect the legislators who inserted that particular provision in the law decided that the greater evil was in allowing a position in which a man could evade payment of his rates, proceed to let his land on the eleven months' system, and derive profit and benefit from it, while escaping payment of his public liabilities in respect of rates. If "A" puts his cattle on "B's" land by the eleven months or otherwise, and if "B" is a defaulting ratepayer, "A's" cattle are in danger. Sometimes people, unaware that there are rates due on land, suffer loss by having their cattle seized in respect of the defaulter's debt. In that case I should imagine there is a remedy against the defaulter. They have a right against the defaulter if they proceed in the courts to recover what they have lost.

Mr. DAVIN

Does the Minister give that assurance, or is he in doubt?

Mr. O'HIGGINS

I am not speaking of this present Bill. I am speaking of a matter arising under Local Government Law under which Deputy Wilson's cattle can be seized on Deputy Gorey's land if Deputy Gorey does not pay his rates.

Mr. DAVIN

What I ask for in that case is protection for Deputy Wilson against Deputy Gorey.

Mr. O'HIGGINS

The point can be looked into. My own recollection of the matter is that a man whose cattle are seized in respect of rates left unpaid by another man can recover against the rate defaulter.

Mr. HEWAT

Would the Minister not take steps to make it publicly known that people who put cattle on a defaulting ratepayer's land are liable to have them seized?

Mr. O'HIGGINS

I think it is generally known. The trouble arises from the fact that a man can offer to take stock on his land under the eleven months' system and not disclose that rates are due on the land, and that stock coming in will be in danger.

Deputy Wilson asked me if there is a high proportion of nulla bona returns. It varies a good deal. In some counties the proportion is low and in others it is high, but, wherever a nulla bona return is made to a judgment creditor, he receives a notice drawing his attention to that portion of the Act which enables a judgment debtor to be examined before the court. Together with the nulla bona return, there is sent to him, or to his solicitor, a special memorandum drawing attention to the extra remedies that are available to him under the Act for the collection of his debt. Having failed to secure seizure of property, he can proceed, if he or his solicitor thinks fit, to avail of the portion of the Act entitled the "Examination of Debtors." There is rather widespread satisfaction with that provision, and my information is that very many debts that would otherwise prove irrecoverable are found to be recoverable by the intelligent use of Part II. of the Bill, which is identical with what prevails in the existing Act.

Mr. DAVIN

Has the Minister any information which would go to show how the sum of £69,910 is made up?

Mr. O'HIGGINS

Perhaps it is as well that the Deputy raised the point. All I can tell the Deputy is that of the 3,400 decrees on hands approximately 1,000 represent decrees for Land Commission annuities. I do not know how the remaining 2,000 would be divided.

Mr. DAVIN

With regard to the position of court messenger, can the Minister say if it is pensionable or not?

Mr. O'HIGGINS

I think that is a Committee point; we need not go into that now.

Question—"That the Bill be read a second time"—put and agreed to.

Bill read a Second Time.

Ordered: That the Third Stage be taken on Tuesday, 9th March.

The Dáil went into Committee on Finance.