The Gazette 1975

The Sheriff's Part in Debt Collection

By T. G. CROTTY, County Registrar, Kilkenny

The office of "shire-reeve" dates back to Norman times. He was chief officer of the Crown in each county. Incidentally, as such, he still takes precedence over every other person in the county, and in cities takes second place only to the Mayor. On formal occasions, his proper dress is "court dress". Interestingly, like his colleague in the American West, the Sheriff has the right—which may amount to a duty—to call out the posse—(posse comitatus = the power of the county). Originally this was a power to summon all good men and true to horse, to ride out and assist the sheriff in the execution of his duty. To- day, the power of the county lies in the police force. When the sheriff nowadays requires a protection escort the requisition he sends to the Garda Superintendent is still known as a "Posse Notice." The execution of the orders of the King's Courts was always one of the primary functions of the sheriff. Originally this covered criminal as well as civil orders —f or example the pursuit of outlaws, the execution of sentence of death, etc. However, these powers were gradually eroded following on the establishment of regular police forces, culminating in the abolition of the powers of arrest, attachment and committal by the Enforcement of Court Orders Act, 1926 and the vesting of these and all other executive powers of a criminal nature in the Garda Siochana. All that is now left is the enforcement of civil orders, i.e. money judgment, orders for possession and the like. Another effect of the Court Officers Acts was to abolish the former distinction between high sheriffs, and under-sheriffs, and apart from the special cases of Dublin and Cork, to transfer the duties, obligations, rights and privileges of the former sheriffs, as they died off or retired, to the County Registrars. They are whole-time court officers, primarily responsible to the Courts they serve as registrars, but carried on the staff of the Department of Justice for purposes of pay and establishment. Presumably it was felt that in Dublin and Cork the combined work-load would be too much for one man, so separate sheriffs have been retained there; these are part-time officers with a small retaining salary, who derive their income mainly from the poundage and fees they charge on the execution of court orders. U p to about 10 or 12 years ago, the County Registrar was separately remunerated for his sheriff duties by an allowance which was apart from his general salary; these allowances averaged about 10% of his salary and county registrars naturally inclined to treat their sheriff responsibilities in a like proportion—i.e. as calling for not more than 10% of their time and energies! Although these allowances have since been consolidated and the amounts were not increased, consequently. The attitude tends to persist. Let us suppose you, as solioitor, have obtained judgment on behalf of a client for the payment of a debt, and there is no stay of execution or provision for

payment by instalments. You then take out a decree (District Court) or an Execution Order (Circuit Court) or a Writ of Fieri Faccas, commonly called Fi. Fa. (High Court) and lodge it in the Sheriff's Office for the county where the Defendant resides or carries on Business. Each County Registrar still maintains a separate branch, usually with its own staff and quarters, which is still known as the Sheriff's Office. On lodging you are charged a nominal fee, depending on the amount of the judgment—the maximum is 35p. A note of the orders is then entered in the sheriff's "Execution Book" and takes priority according to the order of entry. An alphabetical index to this book is kept in the order of debtors' surnames. Let us refer to all such court orders by the general term of "Decree". It directs the Sheriff to levy the amount due for debt and costs by seizure and sale of the debtor's goods. On the face of it, it contemplates no other intermediate steps and in theory the sheriff ould be justified to seeking out his Court Messenger (formerly known as bailiff) forthwith, with a van or truck and order him to take possession of enough of the debtors goods to satisfy the decree. In practice, of course, this does not happen. Times have changed and the present day sheriffs are not the domineering minions of the Crown and the Landlord class that they were in the past. In any event social thinking today would not tolerate such brute force being exercised without good warning. So the the Sheriff sends out formal notice that the decree has been lodged and demanding payment, threatening seizure in default. Several such notices may be sent out, and if there is no response the Court Messenger will usually be directed to make a warning call, trying at the same time to find out why the debtor is not paying, and whether he can afford to, and also trying to ascertain what goods he has that could be seized. In my experience, this process succeeds in extracting pay- ment in well over 50% in all cases without need for any more drastic action. Sometimes, of course, the debtor asks for time to pay or makes an offer of weekly or monthly instal- ment, or disputes the liability altogether. Here is where the Sheriff's local knowledge and that of his Court Messenger come into play—they must judge whether or not to take such approaches at their face value or not. If the sheriff thinks they are genuine, he will tele- phone or write to the solicitor who lodged the Decree, informing him of the debtor's attitude and usually adding his own comments as to whether or not he thinks an offer should be accepted or a disputed liability is genuine—and he will then await the creditor's instructions before taking any further action. Sometimes, if the delay is not unreasonable, or the instalments offered are big enough to clear off the debt in a fairly short time, the Sheriff, realising that easiest ways are best, will accept the offer off his own bat without seeking instructions. Normally, however, 169