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The Gazette of the Incorporated Law Society of Ireland. [DECEMBER, 1910
the suggestions of some and revising the
demands of others, to bring forward a Bill
which your Council think will fairly represent
the wishes of the public and Professions, and
one over which
they can
stand as
a
substantial benefit to the merchants and
traders, as well as to the Professional bodies.
And now this Bill is in print in Parliament,
and may for the present, by the sudden
termination of this Session, fall to the ground.
Still it is there, to be re-introduced at the
earliest opportunity in the new Parliament,
and we do trust that any person who has any
suggestion to give or alteration to make in
it will send them in at once to our Council
and allow them to be considered, so that a
Bill which definitely sets out the amendments
sought to the existing law may be presented
to the Law Officers of this country, and
through them be taken up by the Government
and passed into law as a Government or
uncontested measure ;
for we feel confident
that
the present condition of affairs
in
Parliament will
forbid
any
contentious
matter being carried unless adopted by the
Government of the country.
The particular matters
sought
to be
amended by our Bill are :—The mode of
service of process upon Corporations and
Limited Companies, and
legalising accep
tance of service of Civil Bills by Solicitors
for their clients; enabling a plaintiff to
get a decree for the costs of his proceedings
against a defendant, notwithstanding that
the defendant may have sent him through
post or otherwise the full amount of his
debt after costs have been incurred.
The
attachment of debts within Civil Bill juris
dictions
is
a new
jurisdiction
sought.
There is also an important one :
it is the
question of " speedy interpleader." We all
know the return made by the Sheriffs of
persons other than the defendant claiming
the goods in the defendant's house. The
Sheriff at present has to withdraw, and the
plaintiff is without remedy unless he takes a
very round-about procedure. What we seek
is, that when the Sheriff seizes and a claim
of this class is made, that the Sheriff can
bring the parties, claimant and plaintiff,
before the Judge in a short space of time
and have the ownership of the goods so seized
decided upon by the Judge. Also we seek
that if property under a Bill of Sale or on
hire-purchase with very small
sums
re
maining due to the holder of the Bill of Sale
or person from whom they are hired, is seized
under Civil Bill decree,
the Judge should
have power to ascertain the amount due
upon these instruments, and if the creditor
will pay the amount to the owner or holder
of the Bill of Sale, to direct the Sheriff to
realise the decree and money so paid by
sale of these goods. Another most important
improvement we seek to make is in what is
known as the " Default Process Procedure."
As it exists at present a defendant served
with a default process (which is issued when
plaintiff files the affidavit that a debt is due
to him) can give notice that he intends to
defend (which notice is provided for him at
the end of the process served) by sending
this notice to the Clerk of the Peace, the
affidavit filed thus becomes a dead letter, and
the plaintiff or his witness, no matter where he
may live, must attend before the judge to
prove the debt as in an ordinary process ;
and it
is our experience that in many
instances this notice is served where a defen
dant has no defence whatever, and upon
the chance that the plaintiff will not think
it worth his while to come such a long
distance from his residence, wherever it may
be, to the Court to prove the case, it might
cost
too much
for
time and
travelling
expenses ;
and were he to do so and get a
decree, it may not be capable of being entirely
realised.
Unless the plaintiff does attend
no decree can be made against the defendant,
though he may honestly owe the debt. Our
proposal is that in cases of mercantile debts
up to the extent of
£20,
the affidavit filed in
the first instance will,not fall to the ground
by a notice of defence, but may be permitted
to be used by the Judge as evidence'of the
debt, the defendant will be obliged to state
what his defence is, and if a defence is shown
which requires investigation of the Plaintiff's
claim, the Judge will have full power to
adjourn the case for the attendance of the
plaintiff's witnesses or make such other order
as the Judge may think fair to all parties.
We do not propose that the affidavit should
be conclusive, but that it should be capable
of being used in case no reasonable defence
is suggested to the claim.
We also deal with affidavits connected with
the renewals of decrees, etc., by whom they