Wednesday, 31 January 1923
Dáil Éireann Debate
“(1)—It shall be lawful for any Under-Sheriff who shall, after the passing of this Act, take any goods, animals, or  other chattels in execution under a writ of fieri facias or under a decree of a Civil Bill Court, to sell such goods, animals, or other chattels at any time after he shall have taken the same in execution, and it shall not be necessary for the Under-Sheriff to publish any advertisement or public announcement of any sale of any such goods, animals, or other chattels, or to publish or announce that any such sale is a sale by an Under-Sheriff, or is a sale of goods, animals, or chattels taken in execution.
“(2) So much of Section 28 of the Civil Bill Courts Procedure Amendment Act (Ireland), 1864 (27 and 28 Vict., ch. 99), as prescribes times within which goods or cattle taken in execution under any decree of a Civil Bill Court shall or shall not be sold is hereby repealed.”
Any delay there was in the past, as I stated on the previous reading, was a right of the creditor rather than of the debtor, or was inserted for the advantage of the creditor rather than for that of the debtor, but it did not in the past work out just in that way. In many places the three days' interval simply gave to the debtor and his friends an opportunity for organising to ensure that there would not be many hardy bidders for the goods in question, and generally it proved to be an opportunity for defeating the ends of the law rather than being of any advantage to the creditor. It is considered now that that interval should be abolished and it should be left in the discretion of the under-sheriff to sell at any time that he considers most favourable, and to sell in such a way as to ensure the best price for the seized articles.
Mr. GAVAN DUFFY: I move the first amendment on the Paper as follows:—Before Section 3, to insert as a separate Section:—“It shall be the duty of a bailiff and of any other person employed by an Under-Sheriff pursuant to Section 2 (1) of this Act, immediately upon entry and before seizure, to produce to the defendant (or other person in apparent possession of the lands and premises upon which he or they shall enter) the warrant of his or their authority from the Under-Sheriff, and to deliver a true copy thereof to such defendant or other person.”
 We are now coming to the more important parts of the Bill, and I recommend the amendment to the attention of the Dáil. This amendment is to make the bailiff or the person acting as the bailiff hand to the judgment debtor his authority or a copy of his authority for going into the debtor's house. At present the debtor cannot call upon the bailiff for a copy of his authority and I understand that the bailiff need not even show the original authority. That might be very well when dealing with bailiffs who are certified and of whom there is a list in the courthouse—men of some responsibility and easily identified. But here you are introducing powers to unidentified persons of whom we know nothing to go into the house of a debtor. Supposing three or four of them come in and say that they have come to levy an execution by the order of the Sheriff, as the law stands now and under this Act, as drafted, they cannot be called upon to show any authority whatever for their entrance. In the times in which we are living it is fairly obvious that it would be a safe thing for three or four men to come into a house of any man against whom there is a judgment and pretend on the authority of the Sheriff to collect a debt. In these circumstances it seems to me absolutely essential that the debtor should be in a position to identify the persons who come into the house and to know what their authorisation is. Supposing these gentlemen are guilty of “Black-and-Tanism” when they get into a house, it is right that the debtor should have his right of action against them. At present in the case of every recognised bailiff a list is to be found in the Court house, and where a creditor wants to employ other people as special bailiffs he has to advertise their names in the newspapers. I am not asking that that should be done, but I am asking that you should protect the debtor to this extent, that if these men misbehave, he shall have had put into his hand a document showing there was authority from the sheriff for entry, and their names. If the debtor has not got their names he goes afterwards to the sheriff or the Court and complains, and he will be told that these particular men were unauthorised, that the persons who committed the offence  are persons of whom the sheriff knows nothing. You must give him that natural protection, if he is injured, of knowing who is the person he is to go for. Ordinary bailiffs can be fined £5, I think, for misbehaviour and be punished, but nothing can be done to these gentlemen under the Act. The very least protection you can give the unfortunate judgment debtor is the right to take proceedings against persons who misbehave, and in order that he may have that right you must tell him who the people are. Further, he is clearly entitled, in my view, to see the authority, signed by the sheriff, in order that he may know they are real bailiffs who are coming in. I want this to apply to the general law, apart from this Act, but whether it is applied to this general law or not, there is a double argument where you are dealing with new and unknown men, for inserting some such new method as this. If the Minister chooses to propose another method I do not mind. I want two things secure (1) that the men who go in shall show themselves to be men with necessary authority, (2) if these men misbehave that they shall be identifiable.
Mr. O'HIGGINS: There is a good deal of force in the consideration the Deputy urges, and with modifications, the amendment might be accepted, but as it stands it leaves openings, and the purpose of the Bill is to stop openings and to make a bag of the net by stopping the holes. Now, there is a big hole here, inasmuch as it would be open to any judgment debtor, by the simple process of what has become a familiar process of going “on the run” to entirely defeat the object of this Act. If he were not in possession and available, so that he could be handed this warrant, or that he lived down a lane and cleared over his back ditch on the approach of anyone, until he was quite certain it was not an agent of the sheriff, then I could see him playing in and out with the law, for quite a considerable period. The Deputy in his amendment speaks of land and premises. There are lands without premises; there are out-farms without buildings attached. What is the proposal to meet a situation of that kind. The defendant might not be physically present or available, and there might be no other person in apparent possession of the land and premises. If the Deputy can suggest  means by which these difficulties can be overcome, if he will undertake to remodel his amendment, I will certainly be open to consider it, but I am not prepared to accept it as it stands, as it would simply enable people to drive a coach and four through the Act.
Mr. GAVAN DUFFY: I do not think the amendment as it stands will be quite as bad as the Minister says. It does provide for delivering a copy of the authority to “other the person in possession.” Take the case where there is no one in possession. You can easily insert a word so that a copy can be left on the premises. That, I think, would meet any difficulty there might be. If there is someone on the premises, you can give him a copy of the document. If there is no one on the premises, the document can be stuck on the door.
Mr. GAVAN DUFFY: I would rather not have a demand, because poor people very often do not know their rights. I want to have the thing mandatory on the men going in—their duty and their obligation—because in nine cases out of ten people know nothing about law. If the Minister would allow it to pass as it is, on the next Reading we could add any amendments to make it clearer. I think we are agreed in substance.
Mr. HOGAN: I must say that I do not agree with the Minister or with Deputy Gavan Duffy that having an authority is any safeguard in present circumstances. I do not see that the new bailiffs are going to be any worse or much better than the old bailiffs, and I do not think that we ought to build anything on the assumption that the new bailiffs appointed under this Bill will be very much different from the old bailiffs. Further, giving an authority to a bailiff may really cut the  other way. It is quite easy to forge an authority of any kind, and it really gives the bailiff a little more latitude than he would have under the existing law.
Mr. HOGAN: No; it is much more easy to forge an authority of that sort than to forge a writ. I think the suggestion to give an authority to a bailiff is really defeating the object which he has in view, and I do not think there is any real danger that this will be abused. There is much more danger that people will enter premises not pretending they have the authority of the Sheriff, but rather that they have the authority of the I.R.A., or some other organisation of that sort. I think we are really making a difficulty that does not exist, and so far as the difficulty does exist, this does not meet it. I suggest both to the Minister and Deputy Gavan Duffy that it is not worth while wasting time over this amendment.
Mr. GAVAN DUFFY: I must press this amendment. The Minister who has just spoken overlooks the fact that neither a bailiff nor any other man can go into any premises and seize without written authority from the sheriff or under-sheriff and it is provided for by statute in the case of the bailiff. I am anxious to meet the case raised by the Minister. I will accept any form of words designed to that end, that his legal draftsman may draft. That is really the only point between us. That being so, I suggest the amendment may go through as it stands. One does not want to draft words on the spur of the moment, and to have to change them afterwards. It would be much better to leave it to the official draftsman to put in words to that effect.
Mr. O'HIGGINS: I cannot go further to meet the Deputy than I have done. I would agree to accept his amendments if he would insert after the words “to produce”“produce on demand.” When a person comes to seize goods it does not require a person of secondary or university education to ask the very obvious question, “What right have you to take my goods? Who sent you here?” It is the first question that springs to the lips of any man whose property is laid hands on. “What right have you to  take my property?” The reply will be, “I take it under the instruction of the Under-Sheriff. This is my warrant.” It is, I submit, an ordinary horse-sense solution of the difficulty to insert there “produce on demand” to the defendant (or other the person in apparent possession, etc.).”
Mr. GAVAN DUFFY: I beg to move: Before Section 3 to insert as a separate Section:—“It shall be the duty of every Under-Sheriff under whose authority execution shall be levied upon goods, animals, or other chattels, to cause an itemised inventory of the chattels seized to be made out, and within 24 hours of seizure and before any removal to cause to be furnished to the defendant (or other the person in apparent possession of such chattels) a duplicate of such inventory, signed by the Under-Sheriff or by a person acting on his behalf.” This amendment I think I need say nothing about in view of the Minister's statement the other day. He accepted the principle of it. It is designed to compel the Sheriff's man to give an inventory of any chattels that he seizes. I do not know if there is any criticism of the wording or any change to be suggested in it. I take it the principle is agreed. It is obviously a very vital matter to the debtor that he should have a detailed list signed by way of receipt by the bailiff before the bailiff leaves the premises.
Mr. O'HIGGINS: I would like to make terms with regard to that amendment. I propose to amend the amendment as follows:—To change twentyfour to forty-eight and to leave out the words “before any removal.”
Mr. O'HIGGINS: I will be quite frank with the Deputy, as usual. It is simply this. In the vast majority of seizures it is live stock that is seized. I visualise a situation like this—an out-farm in the country belonging to some person who  lives in the town, a station 3 miles away, a train going at such a time, a van ordered for that train awaiting the result of the seizure. It would not be practicable and it would not be advisable to give an undertaking that in every case before any removal an itemised inventory will be handed to the judgment debtor. He may be absent either deliberately or otherwise, and it is a reasonable thing that within 48 hours of the seizure he should be handed an itemised inventory. I would be prepared to consider the matter if the Deputy would change “removal” to “sale.”
Mr. GAVAN DUFFY: My object is to prevent an unsatisfactory bailiff or a substitute-bailiff pocketing a whole lot of things. That is why I want the inventory made before removal. The Minister is thinking of another class of chattels that may be seized. I see the force of his remarks, but his amendment takes away the protection a debtor is entitled to, namely, that before the bailiff goes out of the house he supplies a list of the things he is taking away. That I think, the Minister will see is reasonable. I suggest that if before the words “before any removal” there were inserted “and if practicable” it might meet the case.
AN CEANN COMHAIRLE: With the two amendments, the new subsection would read: “It shall be the duty of every Under-Sheriff under whose authority execution shall be levied upon goods, animals, or other chattels, to cause an itemised inventory of the chattels seized to be made out, and within 48 hours of the seizure, and, if practicable, before any removal, to cause to be furnished to the defendant,” etc.
“Before Section 3 to insert as a separate section—(1) ‘From and after the passing of this Act no judgment, order,  or decree made in respect of a cause of action arising before the first day of January, 1923, shall be enforced by a Sheriff or Under-Sheriff, unless the leave of the Court shall first have been obtained upon application made in such manner and pursuant to such regulations as shall be prescribed by the Minister, and if, on any such application, the Court is of opinion that time should be given to the defendant, the Court may in its discretion, after considering all the circumstances of the case and the position of the parties, by order withhold, postpone, or subject to such conditions as the Court shall think fit, grant such leave.’”
This amendment raises a matter of very considerable importance. It is an attempt to revive a power which the Court had during the Great War to protect people who were unable to pay their debts on account of circumstances for which they were not responsible. The Dáil will remember that for quite a number of years it was not open to a creditor who had obtained a judgment to enforce any kind of execution without going to the Court and asking leave. This provision was very wisely made in England during the Great War in order to prevent the serious hardship that might occur through the enforcing of decrees at a time like that. The provision was found so useful that it continued in force until last August, and it only ceased to be in force in this country because it happened to be of no further use in England. But England had not a civil war raging, and in my view the clause was more than ever necessary in this country at the very moment that it happened to cease to operate. People will differ as to the extent of distress in this country, but I think everybody will agree that there are very many cases in which people are not able to pay their debts from day to day through no real fault of their own. People ordering goods last June or July or August could not foresee the course of events we have seen since then. Very few of them, I venture to say, supposed that the present civil war would be raging in February, 1923. Consequently people entered into engagements which were reasonable enough for ordinarily prudent men to enter into on the assumption that the country would return to a normal condition before long. I have suggested in this amendment that, in  respect of debts incurred before the first day of this year, a special clause should operate making it the duty of the creditor to get leave of the Court before putting decrees into execution. I take that date—I am not particular about it, but I take it because it seems to me that it is near enough to the passing of this Act to be a fair date. By that time everybody could see that the struggle was going to be more protracted than they expected it would be originally. People who, with their eyes open, enter into obligations now are not entitled to the protection they would be entitled to, on entering into such obligations some months ago. You have, first, the Great War, the disturbances of last year, the present Civil War—one after another—to say nothing of the Black-and-Tan period, making the position of people up and down the country extremely difficult. The Ministers who spoke on this Bill the other day recognised, I think, that a distinction must be made between the honest debtor and the dishonest debtor. The question is how are we going to make that distinction? There is no difficulty in getting leave to put decrees into execution in a proper case. The President, I remember, so well recognised the necessity for discrimination between the rogue and the honest debtor that he said, the other day, that the Sheriff will have to use his discretion as to executing and as to how far he would execute. We cannot exactly give a Sheriff discretion. After all he is an officer of the Court. He has got to do his duty when put in motion by the creditor just as he has to go out of the debtor's house when the creditor orders him. We cannot give an option to the Sheriff. You can give an option to the Court, and that is what I am asking the Dáil to do, to see that in any case where it is unfair to make a man pay up at once and sell him up if he does not pay, that in no such case as that will you allow this Act to operate against him.
Mr. O'HIGGINS: It seems to me that it is not a very scientific classification of debtors to say that the honest debtor is he who has incurred his debts within the last month, and that the dishonest debtor, the rogue, is he who had the misfortune to incur his debts before January, 1923.
Mr. O'HIGGINS: Oh, yes, it is rather the other way about—that is, that it is the dishonest debtor who has incurred his debts within the past month, and that it was those back before that period that the Deputy, with other people, is so anxious to protect. This amendment contains a very serious proposal. I acquit the Deputy of being temperamentally an anarchist. But his proposal is fundamentally anarchic. It is to deprive a great many people in the country of legal rights. For no very definite reason all the creditors who have been owed money for more than a month are to be deprived of their legal remedies subject to their going through a certain procedure which, no doubt, would involve delay and which also, if lawyers know their business, will involve expense. It is not a sound proposal. A decree of the Courts, I understand, lives for a year and may be renewed for a period of six months. I could not undertake to accept or even seriously to consider the amendment which would deprive people of legal remedies and of legal rights and which would practically set at naught decrees of the Courts given throughout last year and only validate decrees given within the last month. The proposal is unsound and fundamentally anarchic.
Mr. GAVAN DUFFY: And the Minister's reply is more unsound and, if possible, more fundamentally anarchic, because the Minister completely overlooks the fact that this amendment upon which he has spent so much eloquence simply reinforces a law which was in force in this country for six years up to August last. This is a very serious matter and the Minister would be perfectly within his rights in objecting to the amendment if he had an alternative. But he and his colleagues have admitted that this Bill is intended to hit the rogue only.
Mr. O'HIGGINS: On a point of explanation the Deputy is harping on this so often that I think it calls for comment. I do not pretend to be able to discriminate without personal contact, to discriminate regardless of physical considerations of place and so on between  the rogue and the honest man in Kerry or Cork. I never stated that this Bill was going to hit and hit only a certain class of people whom we were to brand as rogues and that it was going to pass by another class of people whom we were going to compliment as being beyond all question honest men. The Bill has been introduced to ensure that the writs, the writs of the Court, of the Courts of the people will run. All this talk about the rogue and the honest man is scarcely in accordance with facts. It is simply a human nature tendency to evade payment as long as it seems reasonably possible, and a great many people have given into that human nature tendency. They are not of necessity rogues any more than people who pay their debts are of necessity or ipso facto honest people. There are a great many dishonest people who pay their debts.
Mr. JOHNSON: I want to support the position taken up by the Minister. I think this Bill is so bad because of the fact that it does not discriminate, that you cannot make it discriminate by an amendment of this kind. You are dealing with the machinery for the enforcement of the law, and you want to tack on to that a proposal to instruct the Courts that they must make some discrimination, and that the particular machine that is now being brought into operation must not apply to a particular class of case. I do not think it is possible to make this Bill anything but a bad Bill. The justification for the introduction of the Bill, and the only justification, was that there existed in the country a large number of people who were hiding behind the present disturbances and armed rebellion to avoid payment of just debts. That was the only justification. The Minister confesses that the same bad machinery is going to be made operative in all cases of debts which are owed and cannot be paid because of circumstances which cannot be controlled by the debtor. It is simply because it cannot be amended in the direction that the Deputy wishes that I have opposed the Bill, and will hope to be recorded against every section of it. To ask the Courts to discriminate without passing a special Act of Parliament to deal with a particular class of case is, I think, quite unwise and undesirable. You are dealing with the  machinery for the enforcement of decrees in this Bill, and, I think, it is perfectly right for the Minister to say that we cannot tack on to this Bill such a proposal. The opposition which I have given to the Bill has been misunderstood. It is suggested that we want to protect the fraudulent debtor or the debtor who refuses to pay his just debts though he can, and is, hiding behind the present state of the country. That is very far from the truth. We object to this Bill, and we support the Minister in his view of this particular amendment simply because you are altering the law regarding the enforcement of debts in such a way as could only be justified if it could be confined to such cases as were quoted by the Minister in introducing the Bill. As you cannot confine it to such cases it must inevitably apply to decrees given against innocent debtors, and, therefore, it is a bad Bill.
Mr. O'HIGGINS: Support either for the whole Bill or for parts of the Bill is welcome even from unexpected quarters, but Deputy Johnson, speaking just now and speaking previously on this Bill, has taken an extraordinary line. He has taken the line of thinking, or pretending to think, that the Bill is some revolutionary measure; that hitherto there existed in this country a statute or a convention that people shall not pay their debts; and that we had come along blundering, like young bulls in a china shop, with this startling proposal that people shall pay their debts, and that altogether we look like bringing down the orderly house. You would think that such a thing as a seizure by an Under-Sheriff was unknown in this country before I had an evil brain-wave and framed this Bill. That is not the position. One would think, too, that it was well understood in law and in practice that people should only pay their debts where it was perfectly convenient for them so to do; that they should receive from an honest man or a dishonest man across a counter certain goods, undertaking to pay for them, and that subsequently they should not pay for them, or should pay only in their own good time. Of course, all that is very incorrect, thoroughly fallacious. The existing law in this country, as in most other civilised countries, provides that people should pay their debts, and that in the event of their failure to do so  the creditor may come to the Courts and obtain a decree against them, and that in execution of that decree the Under-Sheriff shall seize so much of their property as he thinks will produce the amount of the debt and something over by way of fees for himself and his agents. That was a well-recognised practice in this country, and, just in the conditions that exist at the moment and have existed for some months back, certain minor provisions of the existing law need strengthening. I pointed out how on an historic occasion the pound failed in Ballinasloe. I said, of course, that that position could not be allowed to extend. I pointed out that the local auction, in the conditions of intimidation that existed to some extent in the country, was not likely to be a highly successful affair, and consequently some amendments were needed in respect of that. The only change that this Bill makes for practical purposes is that it enables the Under-Sheriff to bring out of his bailiwick the seized chattels or livestock and to sell them elsewhere——
Mr. O'HIGGINS: The three days' notice which was given heretofore, when local auctions were the rule, is proposed to be done away with. It is not a startling, new, or revolutionary principle to put forward, that people shall pay what they owe. I make absolutely no apology for it. I consider it rather the primary duty of a Minister for Home Affairs to ensure that the writ of the Courts in the country shall run. They have not been running very well lately. They have been running with a limp, and this Bill is put forward to enable them to run much more smoothly. When people continue to suggest that this is some strange procedure not intended to apply to a class of people who for the time being will be complimented by being called honest people, and that it will not apply to rogues, I know no such principle that only a rogue shall pay his debts and that an honest man shall not.
AN CEANN COMHAIRLE: The discussion on the Committee stage of this Bill will have to be confined to each  clause. We cannot again have a discussion on the principle of the Bill. Discussions will have to be relevant to the particular amendments on the paper.
The PRESIDENT: The matter mentioned by Deputy Duffy is possibly open to misinterpretation. It is possible, on the other hand that I have misinterpreted it. I understood the Deputy to say that for the last six years other courts have been functioning in this country, or that some extraordinary revolution had taken place during six years in connection with the courts, whose decrees we are now seeking to have collected.
Mr. GAVAN DUFFY: The President completely misunderstood what I said. I was referring to the amendment which I was proposing, and what I said was that the substance of this amendment, which the Minister described as revolutionary, has been the law in this country for six years up to last August. By virtue of the Courts Emergency Legislation in England, it has been impossible to put in executions without special leave of the Court.
Mr. GAVAN DUFFY: No doubt there are limits as to debts. It reproduces substantially what those statutes prescribed. For large sums you may make separate legislation if you like. For most purposes the present law is quite good enough, and the Minister when introducing the Bill, and his colleagues when they spoke on the introduction of the Bill justified a Bill so rigourous as this by reference to the thieves who are hiding behind the present disturbances to avoid payment of debts, and they could not justify extreme measures such as are contemplated here except by references to men of that kind. I regret the Minister has not seen his way to accept that amendment, or make some other provision for making a distinction between persons whom it is right to take action against and persons whom it is wrong to take action against. I must say that the Minister's own statement has justified the attitude taken up by Labour on this  Bill from the beginning. I thought an amendment would be accepted which would take the bad parts of the Bill out and which would confine the Bill, so far as it is repressive, to persons who deserve that type of repression. The Minister says he cannot do it, and says one of the primary duties of the Home Affairs Office is to see that people pay their debts. Surely it is also the duty of the same Minister to see that people who cannot pay their debts owing to the state of the country, for which they are not responsible, shall not be sold out of house and home unfairly and unjustly. You must make this distinction, and the Minister's refusal to make this distinction will make it impossible for some of us to support clauses in this Bill which we might otherwise have supported, because it leaves these clauses open to use against honest men. There are other ways of doing the same thing. I say that distinction must be made and I am certain if the Bill gets through here as it stands the Minister will find very considerable difficulty in getting it through the Seanad, unless he recognises, as he recognised when he introduced the Bill, that it is one thing to deal with a thief and another thing to deal with a man who cannot help himself in such circumstances.
The PRESIDENT: I understand the Bill to which the Deputy refers deals with debts incurred previous to August, 1914. The Deputy himself is therefore under a misapprehension if he thinks it ran against every debt accrued since the Great War. It did not. Therefore this particular section which is proposed is extra; it is over and above, and outside of, a similar regulation, if he meant a parallel regulation to the one which deals with debts incurred before 1914. His case would be very good regarding penalisation if it could be supported by facts or evidence. As I understand the case, something like 100 and, in some cases 200, decrees are still unlevied in certain counties. The Deputy did not say whether, it was a fact that, the whole of the 100 or 200 persons concerned would have been put out of business in the event of these decrees being levied. If he were Minister for Finance, he would come to the conclusion, being, I expect, an honest  man like myself, that everyone in the country was on the verge of bankruptey, believing every statement that came before him; but, on review, he would have come to the conclusion that the cases must have been exaggerated. For something like six months I have been dealing with practically every business in the country requiring a subsidy. I suppose all the debtors, against whom decrees have been secured, require subsidies to enable them to carry on. Where they are to be got, I do not know. Perhaps the Deputy will tell us; it would be of great assistance to us if he told us where they are to be found.
Mr. HOGAN: The discussion on this Bill, and on this particular amendment up to this, reveals, to my mind, a most extraordinary point of view. We are here in Parliament passing laws, making and discussing laws, and defining things. It seems to be the idea that we are merely making them for the purpose of hearing ourselves talk; that we are here spending three or four hours per diem discussing principles of Constitutional law and all sorts of abstract matters; but that once we have the law passed we are not going to enforce it. The conception of the Parliament seems to be some place where Deputies can show their mental agility, their knowledge of Constitutional law, their ability to split hairs, and so on; but, my idea of Parliament, and my idea of law-making is, the making of regulations for the running of the country. It seems to me, it may be an extraordinary doctrine, that it is absolutely useless to make laws unless you enforce them. We are not going to alter the law of contract, and we are not likely to alter the law of tort. It has not been suggested here that the laws of contract——
Mr. HOGAN: I am addressing my remarks to sub-section 3, which amounts to a notice to every debtor under contract, or any other way, that he need not pay his debts unless the creditor goes to court again. That is what I am addressing my remarks to. I am suggesting that the existing laws of contract, under which these decrees were  got, are quite good. If they are wrong, or unsound in any way, the Deputy can show us where. If decrees have been obtained by creditors under the existing laws of contract, or tort, they are entitled to be enforced; but this amendment is simply a note to creditors who have been waiting, perhaps a year or more, for their money, that they must go to court again, employ barristers and solicitors, and go through what they must have come to regard as the farce of getting another decree. That is really what the amendment amounts to. All these decrees could be executed; at least they could if there is sufficient power under the existing law. But the suggestion of the Deputy is that we should take away rights under this Bill which are merely for the purpose, as Deputy Johnson pointed out in his speech, of strengthening the hands of the Sheriff and of toning up the machinery of the law. The suggestion is that we should take away rights which creditors have already enjoyed. I ask the Dáil under no circumstances to accept the amendment, which would, to my mind, render the Bill quite useless.
Mr. GAVAN DUFFY: I beg to move the following amendment:—“Before Section 3 to insert as a separate section: ‘From and after the passing of this Act, the wearing apparel and bedding of a person against whom an execution shall be levied, and the wearing apparel and bedding of his family, and the tools and implements of his trade, not exceeding in the whole the value of £15, shall be exempt from liability to seizure.’” I take it this amendment will be agreed to. It simply reproduces the law for protecting the wearing apparel and necessary implements of trade of the debtor, and the wearing apparel of his family. It proposes, however, to change the law in one respect. At present the debtor can keep £5 worth of stuff. I am proposing to make the amount £15, for two reasons. The present law goes back to the forties or earlier. At that time £5 would represent in value £10 or £15 to-day. Therefore I think £5 is too little. That will be obvious to the Dáil. Take clothes, for instance. £5 pre-war would cover a different quantity from what you could purchase for the same amount to-day. Therefore £5 is not enough for protection  for the different things the debtor would require. The other reason is that up to now, under the old law, the debtor could attend the auction, and always had an opportunity of buying in the things he really cared about. It was very proper he should have that opportunity. Now, what will happen if this Bill goes through? You may very well lose things of which the money value to other people may not be great, but of which the value to the owner may be very great. It will be some compensation to him if the implements and apparel and bedding which you allow him to keep are not confined to what is now the nominal figure of £5. But if you increase that sum, as I suggest, to £15, it will allow him to keep something in the house which is worth while.
Mr. GERALD FITZGIBBON: This amendment is substantially the same as one I have lower down in the list, and they might as well be dealt with together, I think. The amendment I have put down was taken word for word from the Recovery of Small Debts Act, which was passed, as Deputy Gavan Duffy told us, some time in the forties, and £5 was not very much to leave a man who has been stripped of everything he possessed by the Sheriff's bailiffs to cover his back, and to cover the family, and to go out in the streets to earn his bread with such tools as he possesses. It would be a small concession to increase the figure that was given even by the hard-hearted legislators of the forties, to the sum of £15 now, having regard to the increased cost of everything. The Government do not always realise that this statute will not deal solely with men who are going out to collect debts that are due to the State or the debts due to the municipalities and local authorities. I have no doubt whatever that that is what is mainly in their minds, and, of course, it is because it is vital that those debts should be got in that I made no addition to the discussion on the Second Reading of this Bill, because I tried to look at it from as many sides as I could, and tried to see it from the side of the Government, and I found no difficulty in seeing that they must take drastic measures to collect the debts that are due to the State, and they must empower the local authorities to take drastic measures to recover the debts  due to them. I also tried to look at the state of the unfortunate judgment debtor. In this city there is as much money levied by the Sheriff on the decrees granted in Green Street by the Recorder of Dublin for small shop debts as you will find in the whole of Ireland for municipal or State debts recovered by the authorities. The Sheriff's bailiff goes into the poor man's house to levy on a £5 or a £10 debt. Bound by the law to take the goods that he finds, it was to protect the poor man from being stripped and being left naked in his house and left without the means of going out, and trying to earn his living again, that they decided in 1840, that he should be left, at least, with clothes to cover his back and with a blanket to cover his bed. It would be not only ferocious, but barbarous, to leave that in the power of the Sheriff. If he is sent to a man's house to levy a debt it is his duty to levy to the utmost extent of that debt unless so far as the judgment debtor was protected by law, and it was for that reason that the law protected him by leaving him the tools of his trade and the clothes on his back. I do hope that the Ministers will see their way to accept this amendment making the amount £15 instead of £5, and also giving the family of the judgment debtor their wearing apparel as well. If they think it necessary to put in the word I have put in—“necessary” wearing apparel—then that would make it perfectly clear that such wearing apparel as was luxurious or superfluous over the sum of £15 was included. I have tried hard to see all the good that can be seen in the Government, but I am afraid a cloud will come over my vision unless they see their way to accept what seems to me to be not only a reasonable but a just amendment. Unless this be done the position of the judgment debtor would deprive him of the means of earning a living and would put him on the rates. Surely the £15 you leave him to enable him to earn his living is better than to make him a pauper in the County Home.
Mr. O'HIGGINS: We must at all costs preserve Deputy Fitzgibbon's illusions. I had intended, even without the impassioned eloquence we have listened to from Deputy Gavan Duffy and from himself to accept an amendment  along these lines. On the one hand you have Deputy Fitzgibbon's amendment of £5 mentioned and you have Deputy Gavan Duffy's amendment with £15, and my idea was that, as a blundering layman I might come in between these two eminent lawyers and do what a man does at a fair—ask them to “split the differ.” I am now in the position that I must ask them to “split the differ” with me, as between the £5 which the existing law provides and the proposed £15, to agree to a sum of £10, in which event I will accept the amendment.
Mr. FITZGIBBON: There is a difference between the two which I think the Minister has not followed, “The necessary wearing apparel of his family” is contained in Deputy Duffy's amendment. I did not use the words “of his family.” I had not that in my mind. I think the Minister has been so gracious in his concession of £5 that he might accept Deputy Duffy's amendment with the £10 substituted.
Mr. GAVAN DUFFY: I want to put it to the Minister that he is cutting down quite unnecessarily what he is giving, for, first of all, you have the limit of £10; within that limit, on the proposal of the Minister, you would have to get the wearing apparel and bedding of the debtor, the wearing apparel and bedding of his family, and the tools and implements of his trade. I think that  word “necessary” is unnecessary. All this is covered in the £10, including the family. I think the Minister could have agreed to the £15. However, it is no use in dividing the Dáil on a question like that. If the Minister will not agree to the £15, let him at least not pare down the £10.
AN CEANN COMHAIRLE: Before Section 3 to insert as a separate Section:—“From and after the passing of this Act, the necessary wearing apparel and bedding of a person against whom an execution shall be levied, and the necessary wearing apparel and bedding of his family, and the tools and implements of his trade, not exceeding in the whole the value of £10, shall be exempt from liability to seizure.”
Mr. FITZGIBBON: I propose, in Sub-Section 1, line 40, to insert after the word “time” the words “after the expiration of a period of twenty-four hours.” The Ministry have already accepted an amendment making it the duty of the Under-Sheriff to make out an inventory within a period of forty-eight hours. I think that probably it might be found that my amendment ought to read “forty-eight” instead of “twenty-four” hours, but I move it as printed. The object of this amendment is this: an Under-Sheriff goes in to seize, and under the Section as it stands he can make his seizure at any time. He can go in and make his seizure at 12 o'clock at night, and at five minutes after twelve he may sell on the doorstep for £5, or whatever may cover the amount of the claim, or whatever value the Sub-Sheriff chooses to put on the goods, and he may transfer the property there and then. One of the fearful dangers that is necessarily involved in this Bill is the possibility of a man's goods being seized for a debt that is not his, because hitherto the sale was postponed for a period quite sufficient to enable an innocent third party —not the judgment debtor—whose goods had been taken in honest mistake or otherwise by the Sheriff, to put in his claim and recover his goods by the process known as inter-pleader, or in some other way. Now, under this Act where  a Sheriff may seize at any time, and he may sell within five minutes, there is no objection whatever left for the man who did not know that a judgment had been recovered and whose goods happened to be in the house, or upon the land on which the Under-Sheriff went to levy a distress and that man's goods without his knowledge and without any complicity on his part, and without any liability to pay, may be swept off and sold to somebody else, and unless he can prove gross negligence or fraud on the part of the Sheriff, which would be difficult, he is left without any remedy at all. Now my amendment seeks to give at least twenty-four hours, and I think it ought to be forty-eight hours, to the innocent third party to put in a claim for his goods while they are still in possession of the Sheriff and before they are sold to somebody else. I think the Government have looked too acutely at that branch of the law of debtors and executions that most vitally concern Government and Ministerial authorities and they have not thought of the small judgment debtor in the cities and the towns against whom the Sheriffs' distresses are mostly levied and that they have not visualised the danger of a gross injustice that may arise through this necessary act to people who are in no default of any kind. It is bad enough for a lodger when his property is seized for the landlord's rent. That is in accordance with law which at any rate favours—I do not say unduly favours— landlords and because it may fairly be said that the lodgers are in the house and they are the belongings of the lodgers they are under the protection of that house, and it must be remembered that, up to now, before the Sheriff could take the landlord's goods in distress, he had to present a judgment and give the lodger an opportunity of paying it in order to save his goods from being distrained for his landlord's debts. That is done away with now because the third party who knows nothing of the judgment may not have the money to pay the debt, and the Sheriff seizes and sells at once before the poor man has even time to go to a bank or a friend to raise the money to save his goods from being taken and sold to someone else. Now, I do think that there ought to be some suspension of this right of immediate sale,  not for the sake of the defaulting debtor. It is his business to pay his debts. If he has money, why should he not pay his debts? The man I am trying to protect is not the defaulting debtor at all, but the man whose goods, through no fault or complicity of his own, happen to be on the premises and are seized and sold without his being given an opportunity of recovering them. Indeed, it does not seem to me a postponement of 24 or 48 hours can do very much harm in the way of crabbing the subsequent sale. They will be able to get just as good a sale after 48 hours as in the middle of the night. Where they are empowered to deport the goods to wherever they would be able to get a good market for them, they will be able to get a real price for the goods because they have power to sell them and put them up for sale without stigmatising them as Sheriff's seizure; and it seems to me, whatever the goods may be—whether furniture, stock in trade, cattle or anything else—where you are allowed to send them away and nobody knows they are a seizure, you will get a good price for them. Therefore, there is no harm in imposing a delay of 48 hours, because it gives time for the unfortunate owner to come forward and put in a claim, and say those goods should not be sold for another man's debt.
Mr. GAVAN DUFFY: I beg to move as an amendment: “After the word ‘execution,’ line 41, to add the words ‘but so that it shall not allow any unreasonable delay to occur.’” I think this Section 3 is exceedingly bad, because it goes further than it needs, and I have not attempted more than to touch one or two of what I regarded as the worst features in it. In line 41 the addition of words prohibiting unreasonable delay in sale by the Sheriff would have this effect, that whereas under the Bill the Sheriff can take things away to London or Paris or Australia, and can store them for weeks and months, and then saddle the unfortunate debtor with all the costs, if you put in these words there will be some chance of having a whack at the Sheriff. I do  not know how any human being outside an asylum could confer upon a Sheriff absolutely unlimited powers to hold up a sale as long as he likes. Supposing he seizes a vast quantity of furniture for a substantial debt. If he is an honest man he will do his duty and sell as soon as he can to the best advantage. If, for some motive he takes these things across the Channel and stores them for months, the charges are mounting up all the time and the debtor has to pay. I do not find anywhere in the Bill any clause which will protect the debtor against that kind of hardship. My attempt is a feeble one, but at least, if we have these words against unreasonable delay, a Sheriff will not be in this matter immune from an action for damages if he does not do his duty.
Mr. O'HIGGINS: I accept this feeble attempt on the part of Deputy Gavan Duffy to rectify this rotten measure. This deals only with the words that we shall not allow any unreasonable time to occur. I would like to hear his case for the second part of the amendment.
Mr. O'HIGGINS: Well, with regard to this unreasonable delay, if it is considered so, and if it is thought that these words are necessary I am prepared to accept them. But the duty of the Sheriff is to seize and to sell, and I think that no man outside a lunatic asylum, with the exception of the Deputy himself, would consider that the Sheriff would interpret this as meaning that he is to seize and keep, and would, in fact, keep for a long period as the Deputy has suggested.
Professor WILLIAM MAGENNIS: On the Second Reading I drew attention to what was involved in Sub-section 2 of 4, which has a most important bearing upon the present amendment. You add to the injury of the seizure of property  the further injury of charging the debtor with the storage or cost of impounding. I drew attention to the possibility of what would be, in effect, a conspiracy to ruin an unfortunate debtor. I am not out of order in referring, I submit, to Sub-section 2, because the meaning of the amendment can only be properly appreciated by reference to the subsequent portion of the Bill.
AN CEANN COMHAIRLE: The amendment is divided into two parts. The Minister accepts the first part of the amendment which is, after the word “execution” in line 41, to add the words “but so that he shall not allow any unreasonable delay to occur.”
Mr. GAVAN DUFFY: I beg now to move after the word “publish” in the next line to add the words “in his bailiwick.” The clause authorises the Sheriff to sell without advertising the sale, or rather it deals with one aspect of that permission to the Sheriff. I am prepared to agree that the Sheriff need not say that it is a Sheriff's sale. I am also prepared to agree that, provided the goods are advertised for sale, they need not of necessity be advertised in the Sheriff's own district but I entirely dissent from the view that the Sheriff is to be allowed to sell these goods without making public the fact that there is going to be a sale and auction. That, however, raises a question that comes up on a later amendment. Here I propose to insert the words dispensing the Sheriff from publishing within his own bailiwick and thereby implying that he must publish somewhere, leaving it to him whether it be within or without his own district. I think it is exceedingly dangerous and objectionable to say, as the Bill does, as at present drafted, that it shall not be necessary for the Under-Sheriff to publish any advertisement, or public announcement, of any sale. That arises in the next amendment, which deals with the question of private treaty, and I will leave over what I want to say about that until we come to that amendment,  but if this power of the Sheriff be qualified by giving him power that may be necessary, and which I gather was really in the Minister's mind, of abstaining from advertising in his particular district, as I here suggest, then I think the main part of the objection would disappear. But I do most strongly object to the Bill as drawn, which would allow the Sheriff not to publish the sale at all, but to sell in secret.
Mr. FITZGIBBON: I support this amendment, though it does not seem to me to be as vital as one or two others that I have proposed, but I think at the same time it is an eminently desirable amendment. The whole object of abolishing the necessity for advertising is to prevent ill-disposed people in the vicinity of the seizure from boycotting the sale, and thereby preventing the judgment from being realised. But the power, as I said, to transport the goods to an undisturbed locality will, to my mind, get away from any difficulty of that kind, and surely it should not be forgotten that there are many places —and in the city—in which the Sheriffs are proceeding about their business in the ordinary way, and that is going on day by day. It is undesirable to withdraw that from those people who have at present some protection in law, and to disturb all that in places where it is not necessary, and where it is not in the public interest to have it withdrawn. Therefore I think when you exclude the Sheriff from the necessity of publicly advertising on the spot, and make it entirely unnecessary for him to publish, in any way, that the sale is a Sheriff's sale, you get all the protection for the sale that can reasonably be required, and you leave some protection to the person who is the person that will suffer if they do not realise the ordinary amount, owing to a bad sale, that they expected to realise.
Mr. O'HIGGINS: I do not think it is advisable to accept this particular amendment. When we come to the amendment dealing with private treaty I hope to prove that the abolition of this notice is not done with a view to enabling the Under-Sheriff or his agents to sell in a furtive way, or in a way that  would injure both the debtor and the creditor. The alternative proposed in this amendment is that there be the fullest notice that the chattels or live stock are chattels or live stock seized on foot of a decree by the Under-Sheriff. That is objectionable and renders the buyer open to a form of intimidation which could not, in reason or fairness, be practised against him if there was no such publication or advertisement. As a matter of fact it is in the interests, I submit, both of the creditor and the debtor that there should not be notice. Everyone knows that people flocking to a Sheriff's sale expect to buy at two-thirds, or possibly even half the value. If there is no notice and cattle or goods are put up in the ordinary way then prospective buyers will realise that there is no feature in the case that would justify them in thinking that they were going to get a bargain. I submit it is in the interest both of the judgment, debtor and creditor that this notice should be done away with. On the private treaty amendment I am prepared to meet the points made by Deputies.
Mr. JOHNSON: I want you to take me as recording, without recourse to a division, that there is an objection to the passing of this clause. I suggested in the Committee on Procedure this morning that we do not want to act merely as obstructionists and to be regarded as  wasting time, but we do want to be regarded as voting against this section by section and that some means should be taken for noting the fact that there was a distinct opposition. I suggest that you should ask those who are against the motion to rise in their places.
CATHAL O'SHANNON: It is rather unfortunate that owing to the action taken on the Ministerial benches those opposing this motion would have to challenge a division. I think there are twelve clauses to come before the Dáil, so that we would have very little time left.
AN CEANN COMHAIRLE: If the suggested procedure is not agreed to, a division must be taken, because the only method would be to propose an amendment to Standing Orders and have a discussion regularly on it, but if that agreement is not given now a division would be necessary. In any event I think Deputy Gavan Duffy called for a division already.
|Liam T. Mac Cosgair.
Donchadh Ó Guaire.
Uáitéar Mac Cumhaill.
Seán Ó Maolruaidh.
Seán Ó Duinnín.
Mícheál Ó hAonghusa.
Domhnall Ó Mocháin.
Pádraig Mag Ualghairg.
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Seán Ó Ruanaidh.
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Mícheál de Stáineas.
Maolmhuire Mac Eochadha.
Gearóid Mac Giobúin.
Eoin Mac Neill.
Pádraig Ó hÓgáin
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Criostóir Ó Broin.
Risteárd Mac Liam.
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Séamus Ó Dóláin.
Próinsias Mag Aonghusa.
Éamon Ó Dúgáin.
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Liam Mac Sioghaird.
Earnán de Blaghd.
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Domhnall Ó Broin.
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Mícheál Ó Dubhghaill.
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Liam Ó Briain.
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Aodh Ó Cúlacháin.
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Domhnall Ó Muirgheasa.
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Domhnall Ó Ceallacháin.
(1) Notwithstanding any statute, rule of law or order to the contrary any Under-Sheriff who shall have taken goods, animals or other chattels in execution under any writ of fieri facias or under any decree of a Civil Bill Court may sell such goods, animals and chattels by public auction or private treaty 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,
(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 will not pretend to any optimism and will not say as is sometimes said when introducing such motions that I am sure it will be accepted unanimously. I am sure it will not, but it is a necessary provision, and it is one of the main proposals of the Bill. It is to give the Under-Sheriff power to sell outside his bailiwick, to remove chattels or live stock he may seize and sell elsewhere. The local auction in existing conditions in the country is not likely to prove a success and would not be in the truest interests of either the judgment debtor or the creditor. It is therefore proposed at the discretion of the Under-Sheriff to abolish it whenever he may think fit to do so, and that he shall have power to remove seized chattels or live stock outside the bailiwick. It provides that they may be impounded outside the bailiwick and if necessary outside the territorial boundaries of Saorstát Eireann.
This is not a penal provision. It is not penal in its intent and it will not prove penal in practice. Instead of the local auction, which resulted either in a defeat of the law by a cheap purchase by a judgment debtor or his kinsman or kinswoman, there will be a genuine sale, and  it will not be a sale the public will go to believing that it is one where the man who is selling has no particular personal interest in getting the best price or where people will go expecting to get goods at half or one-third of the value. It means that the goods or live stock may be removed outside of the bailiwick, outside the tone of possible intimidation and certain local odium, and sold for their real value in an ther place. I submit the result to the creditor and to the debtor will be beneficial. It will be beneficial to the debtor as the real value of his property seized and sold will be secured, and of course, over and above the amount of his debts, and the amount of charges and fees, the proceeds of such sale will be handed back to him. In the past he was liable to have a beast worth £14 or £15 seized and sold for £7 or £8 as a bargain, because it was known it was a sheriff's sale, and the under-sheriff had no particular interest in the matter, beyond clearing the amount of his debt, plus some fees. Now, under this Bill the position will be, that the live stock will be removed outside the zone of intimidation and odium, and will be sold at their real value. It is not a hardship in these circumstances to say that the cost of their removal will be on the judgment debtor, in view of the fact that the whole thing is calculated to produce a much better price, and consequently to redound to his own interest.
Mr. GAVAN DUFFY: I move that amendment in Sub-section (1) to delete the words “or private treaty,” line 55. If it were desirable to open, wide the doors of corruption, certainly the words in the Bill are admirably adapted for the purpose. I desire to call attention to the curious effect of the acceptance of that amendment, withdrawing the powers from the Sheriff to sell by private treaty, and the refusal to accept the amendment to the last clause in connection with the publication of advertisements. To my mind, a public auction without an advertisement is a contradiction of terms. Assuming you could hold a public auction  without advertising, the “publicity” would be no good, and I really would press the Minister, between now and the next Reading, to reconsider the effect of his refusal to amend the previous section, inasmuch as he now accepts withdrawal of the words “private treaty. In the previous section, which is connected with this one, the Sheriff is expressly told it is not necessary for him to advertise. I suggested that we should modify that, and say he need not advertise in his bailiwick. If the Minister does that, then the previous clause will tally with this one, in which you are now going to tell the Sheriff he must sell by public auction. As the matter now stands, I submit Clauses 3 and 4 are contradictions, inasmuch as Clause 3 says you need not advertise this sale at all, and Clause 4 says he must sell by public auction.
Mr. DARRELL FIGGIS: There seems to have been some misunderstanding about this amendment. Line 56 says: “At such place or places, whether within or outside his bailiwick.” What I had intended to move was in line 57, to delete the words “whether within or outside the territorial boundaries of Saorstát Eireann,” which practically is more or less the amendment which I have down subsequently, and which Deputy Gavan Duffy has down as Amendment 9. I think possibly the best thing would be for me to withdraw Amendment 8, and give way to Deputy Gavan Duffy for Amendment 9. I will support his amendment when he moves it.
AN CEANN COMHAIRLE: Amendments 8 and 10 appear on the paper precisely as handed in. I had difficulty in understanding Amendment 8, but I think if Amendment 9 were moved by Deputy  Gavan Duffy, it would, perhaps, dispose of the matter.
Mr. GAVAN DUFFY: I move Amendment 9:—“In Sub-section (1) and (2) to delete the words and whether within or outside the territorial boundaries of Saorstát Eireann.' Lines 57 and 58, and lines 1, 2 and 3, page 5.”
I am not at all sure that this amendment goes far enough, because under this wide Bill it may be that the Sheriff can sell in Great Britain, even if we take these words out. That is a matter for consideration on the next Reading. For the present I am anxious to get out in the two places where they occur the words giving express permission to the Sheriff to sell abroad. There may be reasons that can be advanced for giving him this permission. I absolutely fail to discover them. The Minister when introducing this section said, if I recollect, that the Sheriff could sell abroad if necessary, but this section does not limit him in any way. It gives him absolute discretion. The Deputies will see that you pile up the cost of execution enormously, if you are going to transport goods to England, France or Germany. I have the strongest objection to this section, because I fail to see any need for it, because it is contrary to the principle on which executions have always been carried out, because you are introducing a revolutionary suggestion, that creditors cannot get a fair deal in Ireland, and I suggest that the matter is completely met, if you remove the goods in the case of absolute necessity out of the particular district where there may be strong local feeling. I do most strenuously urge that these words, authorising the Sheriff to sell in England or elsewhere abroad, should be struck out.
Mr. O'HIGGINS: May I first correct a misapprehension? The acceptance of the elimination of the words “or private treaty” does not conflict with the failure to accept the amendment referring to the publication and advertisement. There is something which the law books, as well as I remember, call market overt, and a public auction specifically announced as a Sheriff's auction is not the only alternative to a private treaty sale.
Mr. O'HIGGINS: You asked that I should adhere to the public advertisement. I think the objections to this Section that have been voiced so far are insular. Circumstances might very well arise in which it would be easier to convey cattle to an open market in England than to bring them, say, to a Dublin market. Cattle are shipped from various ports around the coast, from Waterford, Wexford, Drogheda, Derry, and so on, and in these days, when certain enlightened people are destroying railways through the country, it is very often easier and cheaper to convey cattle out of the country than to bring them to the big market in the capital of the country for sale. It is not to be supposed that the Under-Sheriff, or anyone else, will bring cattle to England if they can more easily and more cheaply convey them to a convenient market within the confines of the country. This provision was simply put into be used in case of necessity, in case of emergency, and to prevent a situation arising in which we would have to come back to this Dáil, and say such and such a railway bridge was blown up last night, and in view of that it becomes impossible to transport cattle from that particular area to the Dublin market, and we would ask you to amend the Enforcement of Law Act to permit of cattle being conveyed out of the country. The provision enabling cattle to be conveyed out of the country will only be availed of when cattle can be more conveniently and more cheaply brought out of the country than brought to the capital for sale in the Dublin market or elsewhere. I was more sympathetically inclined to consider the amendment to that provision before the Deputy had spoken than afterwards, because I found that the objection to it, was simply based on insularity——
Mr. O'HIGGINS: I will deal with expense presently—based on that kind of objection that even if it is cheaper to convey cattle to a place outside the country than to a favourable place for sale within the country, based on a kind of ignoring of commercial facts and the  ignoring of the fact that commerce is international, and that people anxious to sell a commodity at the best price are entitled to go where the best price can be got, having due regard to transit costs and to other relevant considerations. I cannot accept the amendment which proposes to shackle the Under-Sheriff in a way that having regard to the campaign that is being made against railways and so on might prove seriously embarrassing at a later stage.
Mr. DARRELL FIGGIS: Of all the sections of this Bill, with the general intention of which I have been in agreement, I think Section 4, to which attention was drawn by Deputy Magennis when he described the Bill as “ferocious,” does unquestionably in its present form deserve that description. The worst feature of Section 4 it is the intention of this amendment to remove. I am impressed to some extent with the argument put forward by the Minister in his rejection of this amendment that it might be cheaper and that it might be more convenient to remove goods from certain parts of Ireland to England than to remove them to other parts of Ireland. As to his objection to the insularity of motive, that is another question altogether. If to be Irish is to be insular, then one can bear that charge with one's customary fortitude. But that is not the construction that will generally be put on these words. The construction that will be put on them when goods are taken out of this country is this, that the Government of Ireland has failed to find some place within the territory of its jurisdiction where it can ensure the safety of such a sale. It is in order to protect the Government and in order to protect the Legislature against that aspersion that I would still urge that these words be deleted, and that even if there be extra cost, that the sale of goods be limited to the jurisdiction of the State which appoints the Sub-Sheriffs or Deputy-Sheriffs as the case may be.
Professor MAGENNIS: A Chinn Chomhairle, I think it is only right to oppose this amendment. Clause 4 of the Bill is exceptionally villainous in its extremity, and the Minister in supporting it practically admitted the consciousness of its iniquity. He did not expect support for it with any enthusiasm. No  doubt he knew that, unless the subsequent sections are very radically altered, he was, as I described it before, outlawing, or possibly providing you with what is in effect outlawry of, innocent debtors. It is better therefore, in my opinion, that the Bill should go through this Dáil with all its vices thick upon it, for the amendment will be defeated in any case, and it is better that the public should understand that when we come to make emergency legislation we are so impressed with the fact that it is emergency legislation that we become panicky and introduce measures, such as are indicated in Clause 4, that admit of no reasonable defence. I have already pointed to the possibility there is in this of leaving room for collusive fraud. The Minister spoke exclusively of cattle. It is very hard to remove a herd of cattle and deal with it without some measure of publicity; but there are other types of chattels dealt with in this Bill that are much more easily removed. What this Bill proposes to do is to empower an Under-Sheriff to deal with valuables in the possession of a judgment debtor according as the Minister calls it to “his discretion,” but which I prefer to call his indiscretion. Under the later clause which the Minister read with a certain amount of unction, Sub-section 4, the Under-Sheriff shall be the sole judge of 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. He asked himself the question—“to the best advantage of whom,” and he answered with a certain amount of hesitation, “to the best advantage of the judgment debtor or the creditor.” But what about the information of the Under-Sheriff? We know with regard to auctions that a celebrated Lord Chief Justice in England spent months trying to devise a formula to circumvent the process that is technically known as the “knock-out.” We know perfectly well how works of art sent across to Christies' for sale are “crabbed” by a combination of dealers who have got a hint of what to do. An Under-Sheriff would think that in dealing with works of art that one was sending them to the best market in sending them across to Christies', and that he would  get the highest amount, but he would be ignorant of the circumstances that are peculiar to these markets. “Notwithstanding any rule of law or any statute:” we are sweeping away that protection of the law that hitherto existed, and we are putting it in the power of a comparatively ignorant Under-Sheriff, or a man whose qualification for appointment was his civic and moral courage under circumstances of danger, not his knowledge of life, or the conditions of life, or his acquaintance with law or equity, or any of these things—we are putting it absolutely in his power to deal as he pleases with his seizures, and to remove them out of the territory of Saorstát Eireann. I say that it is better to let that stand in all is hideousness than for us to try to amend it.
Mr. O'HIGGINS: I can only advise that Deputy Magennis would recommend any of his friends or acquaintances with valuable works of art, and with decrees against them for debts, that they themselves sell their works of art, and pay their debts.
Professor MAGENNIS: That is quite right, A Chinn Chomhairle, provided they are debtors and ought to be made to pay. I have not at any time spoken against putting into operation drastic powers— I do not care how drastic or how fierce they are—for the recovery of certain debts. But the net has been cast so wide by this Bill that other cases may be included, and my friend Deputy Fitzgibbon has drawn attention to it in another context. A man may be made the victim of a gross seizure, and his property may be dealt with in the way I have indicated, and he has no remedy in law left to him. Every remedy is taken from him that hitherto existed. I have no objection to the Minister's attempt to repel injustice, but some Clauses of this Bill must be radically amended, so as to make it possible for a County Court Judge to give a certificate that though this debt was due, it was not possible under prevailing conditions for him to meet the claim to exempt him from the operations of this Clause. That is not in the Bill, and I have to speak of the Bill as it now comes before us unamended.
Professor MAGENNIS: On a point of order, will you allow insolence of that sort to pass unreproved? To say that I am talking nonsense and know that I am talking nonsense is a suggestion that I am abusing the forms of this Dáil and wasting the time of my colleagues. I have great regard for the Minister who has spoken this, and I fain would think he intended to be facetious. If he will assure me that that is so, I will let the matter pass.
Mr. HOGAN: I said exactly what I think. I do think that Deputy Magennis is wasting the time of the Dáil when he describes this Bill as villainous, with its vices thick upon it, outlawry, hideousness, collusive fraud. I suggest that is nonsense, and that it is a misuse of language, and I have too much respect for the intelligence of the Deputy to think that he does not know it.
Mr. HOGAN: That is the only point that the Deputy made. We are in Committee and we are passing this Bill section by section, and if there is something else wrong with the Section, why not put it? The only point that has been made against this Section is that it empowers the Sheriff to take the goods outside his bailiwick, and for giving powers of that sort to the Sheriff the Section is described as hideous, outlawry, villainous, and so on. I must say, and I think the Dáil will agree, that that is simply a misuse of language. It is not business, and we will keep to business as far as possible. There is no alternative at present except to give the Sheriff a discretion in cases to sell outside his bailiwick. The Sheriff has discretion to sell inside his bailiwick if he wishes, but no one who  knows the conditions at present can deny that a case might arise in which the Sheriff would find it necessary to go outside his bailiwick. That is all the Clause proposes to do. Will the Deputy suggest some other way of doing that if he agrees that it will be necessary in some cases to give the Sheriff such a power? That would be more like business. I agree with the Minister that it is both in the interest of the debtor and the creditor in certain cases that the goods should be taken outside the Sheriff's bailiwick. There would be many cases in which it would be impossible to sell inside. A better price is likely to be got outside, and I think this is one of the most useful and necessary Clauses in the Bill, and I would be very sorry to see it removed; I think it would take away entirely from the virtues of the Bill, and I think the Bill has a great many virtues.
Professor MAGENNIS: May I point out that the Minister forgot that I spoke against the amendment. Consequently, approaching it from that angle, I was entitled to use the entire Clause, and I used the entire Clause. It was not merely because goods seized might be taken outside the territory of Saorstát Eireann that I spoke of this thing in strong terms of condemnation. That is one of the vices that are thick upon it. But I described the Clause as a whole as the most iniquitous part of the measure. The Minister invited me to say how else the purpose which the Bill exists to promote could be secured. I have already pointed out that as it stands there are certain latent elements in it which in my conception of it are not susceptible of being made acceptable to anyone who is interested in Justice, but that a later Clause could be so amended as to secure that this Clause should have application only to those who are, in effect, as much disturbers of the social order as the destroyers of railway lines and other malefactors who are engaged in anti-social activities at the present time. I have no objection to the Bill's intention. If I had I should be guilty of gross inconsistency in voting as I have done for two Clauses already and in voting for the Second Reading of the Bill. It is against this panic which the Minister himself, after I used the phrase “panic haste,” has himself given manifestation of that I protest. Not once or twice the Ministry have asked “What  are we to do?” This is a loose paraphrase of the language that they have used: “What are we to do? Can any critic of the measure suggest something better. We must get these debts paid.” They are ready to sweep away every legal protection that now exists for debtors, so eager are they to find “something” that may be done. I do not approve of that. I do not approve of this first Legislature under our newly acquired freedom showing so little regard——
Professor MAGENNIS: If the Chairman decides that I am not in order I bow to his decision. I respectfully submit to him that I am speaking on the Clause. I have more particularly in mind not this amendment omitting one or two words, but the whole Clause.
Professor MAGENNIS: The wide sweep which this Clause takes, by which it empowers the same treatment to be dealt out without remedy or protection to the innocent as to the debtor who refuses to pay, and who would make use of the dislocation of the law and of disorder in the country to save himself from the payment of debts which he lawfully owes, is what makes this thing so objectionable. Again I repeat what I have already said on the Second Reading. The principle of the Bill, the purpose for which it is brought in, is commendable. But, as I was about to say when the Minister interrupted me, why are we to indulge once again, as we have been doing recently, in the setting up of evil precedents merely because we want to do something right? To do something right we are to  do a great wrong, or, at any rate, leave the potentialities of doing a great wrong open. I beg to assure the Minister who has just spoken that if I am talking nonsense it is absolutely without being aware of it. I never was more sincere in my life; I never was more anxious to help to make a bad Bill good than when I speak upon this measure. To speak of my having more intelligence than to hold the views that I hold is, no doubt, courteous, but it does not remove at all the essential part of the allegation that I treated the Dáil to a speech merely for the sake of hearing my voice, and to a discussion of a matter in which I had no serious interest. I do hope the Ministry are not going to proceed, as of late they have been showing the intention to do, by imputing motives and making suggestions of ulterior purpose, instead of meeting criticisms, and criticisms which are sincerely put forward.
Mr. GOREY: I take it that this is simply a precaution to forge an instrument that may or may not be used. I am not a lawyer, and I do not understand the niceties of legal phrases and language, but I do know a little about the realities of life, and I can understand the position that might easily be created by an organisation or a conspiracy where a sale could be easily prevented. It is all right to say that the Sheriff must make a sale. To make a sale you must have somebody to buy, but in this country it is very easy to prevent the ordinary individual in the country from being a buyer. We can understand such a position, and I take it that this instrument may or may not be used. It is not an instrument of general application at all, but an instrument to be used in cases of this description with discretion. My interpretation of it may be wrong or right. But that is the view I take of it.
Mr. FITZGIBBON: I do not think there is much fear that Sub-Sheriffs will transport goods that have been seized for sale to Germany or any other part of the world out of Saorstát Eireann. But there is one aspect of this particular Clause, and it rather impresses me, and I wondered that it had not been relied upon by the Minister at first. Unfortunately we may suffer from insularity, but still more unfortunately we have not  got a complete island. It seems to me that the Sub-Sheriff of the constituency that is so well represented here by Deputy McGoldrick would find this Clause rather convenient for him, and for the benefit of those judgment debtors against whom a distress was levied in Donegal. Because it would be very difficult, indeed, for him to find a market outside his own bailiwick, without taking the seized goods out of the territory of what is at present Saorstát Eireann It may be, in happier days, counties now bordering on Donegal will be included in the Irish Free State. But unless and until they are, some market immediately outside the County Donegal, and yet not within the Free State, would be the proper place for a Sub-Sheriff to realise cattle or goods of any kind that would be seized anywhere along that border, and without some such powers as this they would have to be transported through alien territory down to some place nearer to the place we are now. For that reason it seems to me this Clause, or some form of it, will be really necessary. I do not fear the enormous exportation of goods seized by Sheriffs at enormous expense, to a great distance to be sold at a gross under value. I think there are very much more dangerous provisions in this Bill than this particular Clause, and, therefore I would not be prepared to oppose the Clause as a whole, and I cannot but think, in some form, it is necessary.
PADRAIG MAG UALGHAIRG: Níl mórán agam le rádh ar an leas-rún so. Molaim an méid a dubhairt Teachta Mac Giobúin ó chianaibh, i dtaoibh Thíre Conaill, ach níor gádh dúinn a leithéidh sin 'nár g-ceanntar. Is féidir linn dul ar aghaidh le n-ár gnó féin annsoin.
I wish to say that I thoroughly appreciate the remarks made by Deputy Fitzgibbon on this amendment. I have to say that we, fortunately, do not want it in Donegal. We do not require it. We have no need for it, and it is never done there, but that does not apply generally, I am sure. We can get on with our own business there. We have no need for transporting anything. Our people will pay their way when called on to pay, and when the Courts function in the way they should function  all through the whole country, there will be none of these agencies at all that will apply themselves towards preventing the possibility of honesty prevailing all over the whole country. That is the character I have to give of the constituency that I have the honour to represent here. As to the general principle of the amendment, I believe it is a wise principle. I do not see, if there is a conspiracy or difficulty about getting a just price for an article that the Sheriff is called on to seize, that the Sheriff should not have recourse to the best market he can find. I think he is only serving the interests of the State for which he is acting, as well as the interests of the parties themselves. It is the interest of those who make the laws here to give him that opportunity, and they would be doing wrong if they did not give him that opportunity by passing the legislation that they are now passing, and which enables him to do so. It is an honest transaction, and I do not see why gentlemen should labour the question so fully and so vehemently, and pursue words and phrases to such a nice distinction to put into them interpretations which do not belong to them. I do not attach so much importance to words and phrases. We, down in Donegal, call a spade. We don't go round to find nice subtleties and distinctions about words and phrases. I don't think they apply very much to the general position of affairs in this country, because this country at the present time has not time to wait for fine words and phrases and subtleties. It has got to go on and get its work done, and get it done directly. I do not see why we should apply ourselves or continue to keep a body like this concerned with the niceties and the fine distinctions about niceties that should prevail if everything was in perfect order in the country, and if everything went on in the way in which everybody would wish it to go on. The Dáil divided: Tá, 39; Níl, 14.
|Liam T. Mac Cosgair.
Donchadh Ó Guaire.
Uáitéar Mac Cumhaill.
Seán Ó Maolruaidh.
Seán Ó Duinnín.
Mícheál Ó hAonghusa.
Domhnall Ó Mocháin.
Pádraig Mag Ualghairg.
Deasmhumhain Mac Gearailt.
Seán Ó Ruanaidh.
Mícheál de Duram.
Ailfrid Ó Broin.
Risteárd Ó Maolchatha.
Mícheál de Stáineas.
Domhnall Mac Cárthaigh.
Maolmhuire Mac Eochadha.
Sir Séamus Craig.
Gearoid Mac Giobúin.
|Eoin Mac Neill.
Pádraig Ó hÓgáin.
Seosamh Ó Faoileacháin.
Fionán Ó Loingsigh.
Criostóir Ó Broin.
Ristéard Mac Liam.
Caoimhghin Ó hUigín.
Séamus Ó Dóláin.
Proinsias Mag Aonghusa.
Éamon Ó Dúgáin.
Peadar Ó hAodha.
Séamus Ó Murchadha.
Liam Mac Sioghaird
Earnán de Blaghd.
Uinseann de Faoite.
Domhnall Ó Broin.
Séamus de Burca.
Mícheál Ó Dubhghaill.
|Tomás de Nógla.
Tomás Mac Eoin.
Seoirse Ghabháin Uí Dubhthaigh.
Liam Ó Briain.
Liam Mag Aonghusa.
Aodh Ó Cúlacháin.
|Liam Ó Daimhín.
Seán Ó Laidhin.
Cathal Ó Seanáin.
Nioclás Ó Faoláin.
Domhnall Ó Muirgheasa.
Risteard Mac Fheorais.
Domhnall Ó Ceallacháin.
Motion declared carried.
At this stage An Ceann Comhairle resumed the Chair.
The PRESIDENT: I move to report progress.
Mr. BLYTHE: I beg to second that motion.
Motion put, and agreed to.
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