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he will not accept payment by a lengthy series of small
instalments. His book-keeping system is not geared to
this and instead he will invite the solicitor to take up
the Decree and accept payment direct, subject to the
provision that the Decree can always be re-lodged if
default is made in paying the instalments.
Apart from outright defiance, one meets the
most extraordinary attitude from debtors.
In a proportion of cases the sheriff will be all
too well aware from past experience that the debtor
is a complete "dead beat" with no goods or tangible
assets which could be seized. You can't squeeze blood
from a turnip or water from a stone. In such cases,
after one formal notice, he will usually return "Nulla
Bona" without further ado.
But sheriffs, can err. If you, as a practitioner
got back a return of "Nulla Bona" and you suspect
that the Sheriff was mistaken or misled, or the
circumstances of the debtor have changed for the better
you can always query this return. You will not be
popular for doing so but it is your right and if you
can indicate where goods of the debtor are to be found,
so much the better. You can even sue the Sheriff for
a false return—but I do not recommend this.
There will always be the small proportion of
cases where the debtor could but won't pay and the
full register of the law has to be invoked. But the
sheriff law is highly technical and involved. Let me
indicate just a few of the complications. In the first
place, only goods can be seized—though this term does
extend to the debtor's interest in a lease or tenancy,
if it has any saleable value. Freeholds are not seizable,
nor is an equity of redemption. Neither is money, so the
Sheriff cannot catch a debtor by the heels and shake
him and then pick up whatever coins or notes that fall
out. Nor can money on deposit in a bank be seized by
a sheriff, nor a policy of insurance.
Necessary
wearing
apparel,
bedding and
the
tools of the debtor's trade to a value of £15 are exempt
from seizure. Nowadays, this tends to be given a fairly
liberal interpretation and the sheriff's estimate of value
is never questioned. For one thing, such articles have a
very dubious saleable value, and for another, public
opinion would be very opposed to depriving an average
citizen of his purely personal belongings, or leaving
him and his family in utter hardship.
The aspect of saleability is one which the sheriff
must take into account. There is no point whatever,
especially in these days of high transport costs, in
seizing articles of little value which would not even real-
ise the expenses of seizure, transport, advertising and
sale, not to mention sheriff's fees. T o do so would merely
be punitive to the debtor while yielding no advantage
whatever to the creditor. The law on sheriffs sales
is delightfully vague, and he is forbidden to sell at a
gross undervalue, but in between these extremes there
is a very grey area in which he can duly use his own
discretion and commonsense.
The transport of seized goods and their safe
keeping until sale raises yet another problem. The
sheriff is obliged to hold the goods for at least 48
hours before putting them up for sale, in order,
presumably, to give the debtor the opportunity of
redeeming them by paying up the full amount due.
They are at his risk for this time and until sold. Both
transport and storage present difficulties. The average
haulier does not relish working for the sheriff, as it
seems to carry some sort of stigma. Therefore, in most
instances, he has to rely on C.I.E.
Again, very often, secure and suitable pounds are not
available, due to the apparent unenforceability of the
statutory obligations on local authorities to provide
them. Dry goods, drapery etc. can sometimes be held
in the Courthouse, but this is not legally a pound and
has certain disadvantages e.g. in regard to insurance,
forcible rescue of seized goods etc.
The sheriff also has to ensure, as best he can, that any
goods he does seize are in fact the property of the debtor.
If he is a householder and farmer, then goods found at
his home are prima facie likely to be his. But very
often in this era of hire purchase, the more valuable
items of consumer durables may not be his property
at all. If on H.P., as 75% of cars, trucks and the larger
household appliances are said to be, then, as you know,
the property in them does not rest in the hirers until
the last instalment has been paid—until then they
belong to the finance house concerned. Many other
items in the apparent possession of the debtor may not
be his property for other reasons—'his T.V. is probably
rented, his car may in fact be the property of his firm,
his livestock may be the subject of a floating chattel
mortgage to the A.C.C. All these factors inhibit seizure.
The goods may even genuinely be the property of
another private individual, on loan to the debtor, and
woe betide the sheriff if he wrongfully seizes goods
the property of a third party, because he is personally
liable in damages.
Claims to ownership by a parent, child or spouse
of the debtor, however, are unavailing against seizure
provided they are found on property of which the
debtor is the occupier. This is some help, especially
as it is not known to the lay public—or even to some
solicitors, I have several times been threatened by
solicitors, or faced with very professionally drawn
assignments of chattels or affidavits as to ownership
when a husband sought to evade seizure by alleging
the goods were his wife's property. The citation of
Section 13 of the Enforcement of Court Orders Act,
1926, quickly disposes of this.
In the case of seemingly genuine claims and
counter claims to ownership of goods taken into
seizure, the Sheriff has some protection. He can use
the procedure known as Interpleader and, disclaiming
any personal interest in the goods, leave it to the rival
claimants to fight out the dispute in Court. However,
this is rather technical, and, as the sheriff continues to
hold the goods as a stakeholder, it is not very satis-
factory if they consist of livestock or are of a wasting
nature.
Apart altogether from questions of value, the
actual saleability of the goods can often be an issue
to which thought has to be given. In the anonymity of
a large city, with a profusion of sales rooms and
auctioneers, the disposal of furniture and dry goods
generally is no great problem. But it is often otherwise
in the country, where everyone knows every one else's
business and bad news spreads like wildfire. Usually,
the provincial sheriff has to act as his own auctioneer
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