HL Deb 04 July 1881 vol 262 cc1915-9

wished to ask the Lord Privy Seal, Whether his attention has been called to the fact that personal service of processes for recovery of possession of land or for debt is systematically evaded in many parts of Ireland, and that the practice followed in most counties of permitting other modes of service to be substituted is not adopted in the counties of Leitrim and Cavan; and whether, with the view of a uniformity of practice and a due execution of the law being insured, he will call the attention of the Lord Chancellor of Ireland to the subject? In expla- nation of his Question, he begged to read the following extracts from two letters he had received on the subject:— Our chairman at the late Quarter Sessions at Ballinamore declared in open Court that his sympathies were entirely on the side of the tenant in ejectment cases which he was then trying, and it was only where the law compelled him he would give a decree. I was present. He struck out several cases on the service of ejectments which has hitherto been ruled and accepted as good service by his predecessors—namely, when a bailiff went on three several days to the defendant's house and finding it closed he posted ejectments on the door of the dwelling and a like copy in the next market town. He gave decrees only when he could not avoid doing so, and then made them comparatively useless by putting long stays on them. In one case, particularly, he showed his feelings. A man who purchased at a sheriff's sale a tenant's interest, sold under a Superior Court writ, brought an ejectment in the usual way on the sheriff's deed, and obtained a decree after a great squabble between the attorneys. But he put a stay of five months on it, and on Mr. M'Keon, the attorney for the purchaser, reasoning with him on the hardship of staying the decree, after giving his money for it, and paying the landlord two years' rent due thereon, he got out of temper and added another month to the stay. I, the other day, at Ballinamore, took down in writing expressions made use of by Mr. Waters, the present County Court Judge. The Judge would not on any consideration allow that posting was sufficient service, even where four attempts had been made at service, and the door found shut. In giving his decision, he said, 'That he wished that he could give dismisses in every case of ejectment brought by landlords, as if he was able to go by his own wishes he would never be instrumental in putting a tenant out of his holding.' In every possible way he decided against landlords, and on every application made for a stay on a decree, he granted to October or November. You may make any use of this letter you wish, and also of my name.


, in reply, said, that the noble Lord had given no Notice by his Question that he had any intention of referring to the conduct or language of any County Court Judge in Ireland. He (Lord Carlingford) imagined the noble Lord's Question would be a pure question of law, and as such he was prepared to answer it. The question of substituted service was purely one of administration, and turned on the interpretation of the statutes from which County Court Judges derived their powers. It was true that there were exceptions to the practice of allowing other modes of serving process to be substituted for personal service in those cases in which parties could not be found at their dwellings. He had received a letter from the County Court Judge referred to, explaining that his hesitation to allow substituted service was caused by the view which he took of his statutory powers. The diversity in the views of County Court Judges on the question of their right to permit substituted service was, no doubt, inconvenient and unfortunate. The Executive Government had no control over County Court Judges either in Ireland or England; but they had communicated with the Lord Chancellor of Ireland with the hope that uniformity of practice might be obtained in the matter to which the attention of their Lordships had been called.


said, the question was a very difficult one, and he was very glad that the noble Lord opposite (Lord Harlech) had brought it forward. There could be no doubt that the personal service of writs was open to very serious objection, for it was fraught with much danger and often marked by bloodshed. He said this not at all in the interest of the landlords. What happened was this—In a disturbed district a number of writs were issued, and probably only a very small portion of them led to any result or eviction. When the writ could not be served application had to be made to a Superior Court for substituted service; but when such application was made the parties were put to considerable expense, and also to considerable delay. Even then they were met with the further difficulty that the Judges might hold very different opinions as to the circumstances under which they were justified in allowing substituted services to take place. He had the strongest possible sympathy with what was recently said by a County Court Judge—namely, that while the law remained as it was he did not feel justified—except on the strongest possible evidence—to allow substituted service. It seemed to him that there was a great deal to be said in favour of the view that, under particular circumstances, the Court before which the case was first heard might be allowed on its responsibility to allow service by posting the notice in some public place or sending it through the post. If that were permitted there could be no doubt whatever that the service would take place in an effectual manner, and he believed that a considerable amount of bad feel- ing and personal risk would in many cases be avoided.


said, that the tendency of modern legislation had been to enable the Courts to order substituted service through the Post Office, and when it was done in that way much trouble was saved and no disturbance whatever took place. If the County Court Judges had that power it was a pity they should not exorcise it; but if they had not the power the law should be amended to give it to them.


said, he did not think that his noble Friend behind him (the Marquess of Lansdowne) was quite correct in his observations. Unless he (Lord Carlingford) was quite mistaken the jurisdiction in cases where the proceedings originated in the County Court itself lay with the County Court Judge, and not with the Superior Court, unless there had been an appeal. It so happened that on the point mentioned in the Question of the noble Lord there had never yet been an appeal; and, therefore, the Superior Courts had not had the means of guiding the Courts below them.


said, there was very good reason in Ireland for permitting substituted service. The rule requiring the personal service of writs bore very hardly on many persons who were anxious to recover the rents due to them. The noble Lord had, he thought, passed rather lightly over the difficulty of personal service, the ringing bells, the beating drums, the lighting fires on hills, and the other means of collecting a mob to prevent the process-server doing his duty. He was of opinion that the personal service of process was more frequently prevented by violent interference than by the absence of the debtors. He was in favour of permitting service through the post. Process might, in the absence of the debtor, be served by affixing the writ to a door; but even in such cases ingenious attempts were made to defeat the law by removing the door.


explained that in his statement he purposely omitted cases of intimidation, for the County Judge informed him that in those cases his powers were such that he had no difficulty in giving directions for the service of the process to be made otherwise than personally.


said, that some alteration in the system of process-serving was urgently needed in the County of Cavan. It was his misfortune to possess a considerable estate in that county, and he could inform their Lordships that in point of fact there was no law whatever in that county, owing to the action of the County Court Judge in question. His tenants had declared last November that they would not pay their rents, and they had stuck to their resolution ever since. Whenever a process-server appeared among them the people were at once called together by the sound of the drum and by other loud noises. On one occasion 2,000 men had been so assembled, and, armed with guns and pitchforks, they had proceeded to his hunting lodge, which they had threatened to burn down. He had recently heard from his surveyor that a tenant who had been dispossessed of a small farm by the sheriff had openly driven his stock back upon the holding, of which he was now in possession, boasting that there was no one who could turn him out. That was the law in Cavan as administered by Mr. Waters.


said, he hoped the Lord Privy Seal would turn his attention to the law regulating the recovery of land in Ireland, for it required amendment. On his (the Earl of Sandwich's) estate in Limerick County he had to take a tenant before a Court of Law in Dublin, in order to evict him, because he would not pay his rent. He had been successful in the action; but, notwithstanding this, the tenant still remained in his holding and defied the law. Another tenant of his had had his goods seized on civil process by a moneylender, who turned him and his family, neck and crop, into the roadway, entered into possession of the unfortunate man's holding, and so instituted himself one of his (the Earl of Sandwich's) tenants without asking his leave. There he remained, and he was unable to eject him. It was very Irish law that was in force in Ireland at the present time.