The Gazette 1975

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 170

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.