29/08/1924: The Enforcement Of Law (Occasional Powers) District Court Rules (No. 1) Order, 1924.

DEPARTMENT OF JUSTICE.

THE ENFORCEMENT OF LAW (OCCASIONAL POWERS) DISTRICT COURT RULES (No. 1) ORDER, 1924.

RULES FOR THE CONDUCT OF PROCEEDINGS IN THE DISTRICT COURT UNDER PART III. OF THE ENFORCEMENT OF LAW (OCCASIONAL POWERS) ACT, 1924 .

WHEREAS by the Enforcement of Law (Occasional Powers) Act, 1924 , section twenty-eight it is enacted that the Minister for Justice may make rules for the conduct of proceedings authorised by the Act to be brought before a District Justice, and may prescribe the forms to be used in such proceedings :

NOW I, CAOIMHGHIN Ó hUIGÍN, Minister for Justice, in pursuance of the powers vested in me by section twenty-eight of the Enforcement of Law (Occasional Powers) Act, 1924 , and of all other powers enabling me in this behalf, do hereby make the Rules and Order hereinafter set forth and do prescribe the Forms set forth in the Schedule to the said Rules and Order for the conduct of proceedings authorised by Part III. of the Enforcement of Law (Occasional Powers) Act, 1924 , to be brought in the District Court.

Given under my hand this 29th day of August, 1924.

C. O h-UIGÍN,

Aire Dlí agus Cirt.

THE ENFORCEMENT OF LAW (OCCASIONAL POWERS) DISTRICT COURT RULES (No. 1) ORDER, 1924.

PART I.

1. The expression " the said Act " in these Rules means the Enforcement of Law (Occasional Powers) Act, 1924 .

2. An application for an examination order under section nineteen of the said Act shall be made by the creditor, by himself or his solicitor, without any notice to the debtor, attending before a Justice of the District Court sitting for the Court Area within the jurisdiction of which the debtor ordinarily resides, and by evidence upon oath, either viva-voce or on affidavit, and by the production of the original or a certified copy of the judgment or order of the competent court upon which he relies, satisfying such Justice that he is entitled to have such examination order made.

3. An affidavit grounding an application for an examination order may be sworn before a Justice of the District Court, a Peace Commissioner, or a Commissioner for Oaths. The original of such affidavit shall be lodged with the District Court Clerk prior to the making of the application and shall be retained by him. No fee shall be payable by the creditor upon such lodgment. The affidavit shall be entitled as in Form One in the Schedule hereto is set forth, and shall contain any averments rendered necessary by section nineteen of the said Act.

4. Upon his being satisfied that a creditor is entitled to have an examination order made, a Justice of the District Court shall, without any notice to the debtor, forthwith make and issue the same order, which shall be in accordance with such modification of Form Two in the Schedule hereto as may be suitable. A Justice of the District Court, in making and issuing such order, shall issue and sign an original order and a copy order.

5. An examination order shall, unless the creditor makes an application to the contrary, command the attendance of the debtor at the next available sitting of the District Court, having regard to the time for service hereinafter provided, for the Court Area in which the debtor ordinarily resides.

6. An examination order shall be served upon the debtor personally fifteen clear days at least before the sitting of the District Court at which the debtor's attendance is required.

7. A copy of the statement of means lodged by a debtor shall, on demand made by him, be furnished to a creditor by the District Court Clerk, and each copy so furnished shall bear the appropriate District Court stamps denoting a fee of one shilling, which shall be payable by a creditor for each copy so obtained by him. Provided that nothing herein contained shall deprive a creditor or his solicitor of his right to attend at the office of a District Court Clerk, and inspect and take copies of the statement of means lodged by a debtor.

8. An order for arrest and imprisonment to be made by a Justice of the District Court under section twenty, sub-section two, of the said Act shall be in accordance with such modification of Form Three in the Schedule hereto, as may be suitable.

9. An order for payment of debt and costs to be made by a Justice of the District Court under section twenty-one of the said Act shall be in accordance with such modification of Form Four in the Schedule hereto, as may be suitable. A Justice of the District Court shall issue and sign an original and a copy of such order. The copy of such order shall, when issued, be forthwith served on the debtor.

10. An application by a creditor under section twenty-two, sub-section one, of the said Act shall be by summons, which shall be in accordance with such modification of Form Five in the Schedule hereto, as may be suitable. Such summons may be issued and signed by a Justice of the District Court, a Peace Commissioner, or a District Court Clerk. An original and a copy of such summons shall be issued, and the copy shall be served upon the debtor four clear days at least before the sitting of the District Court to which the summons is made returnable.

11. An order for the arrest and imprisonment of a debtor to be made by a Justice of the District Court under section twenty-two, sub-section one, of the said Act shall be in accordance with such modification of Form Six in the Schedule hereto, as may be suitable.

12. Before making an order for the imprisonment of a debtor under section twenty-two, sub-section one, of the said Act a Justice of the District Court shall be satisfied of the due service upon the debtor of any order made against him under section twenty-one of the said Act, of the debtor's failure to comply with such order, and (in the event of the debtor failing to appear) of due service upon the debtor of the summons mentioned in Rule Ten hereof.

13. Where, subsequent to the arrest and imprisonment of a debtor under section twenty-two, sub-section one, of the said Act, the amount of debt and costs specified in the order of arrest and imprisonment is paid to the District Court Clerk, the said Clerk shall deliver a certificate of payment to the person making the payment on behalf of the debtor, and shall forthwith forward by prepaid post a similar certificate of payment to the Governor of the Gaol in which the debtor is imprisoned and to the creditor or his solicitor respectively. Such certificate of payment shall be in accordance with such modification of Form Seven in the Schedule hereto, as may be suitable.

14. An order for arrest and imprisonment of a debtor made by a Justice of the District Court under section twenty of the said Act shall be addressed to the Gárda Síochána or Dublin Metropolitan Police, as the case may be, of the district within which the debtor ordinarily resides, and it shall be the duty of all officers and men of the Gárda Síochána and the Dublin Metropolitan Police, within whose district such debtor may be found, to execute such order against him.

15. An order for the arrest and imprisonment of a debtor made by a Justice of the District Court under section twenty-two of the said Act shall be directed to any Under-Sheriff or other officer within whose bailiwick the debtor is likely to be found, and it shall be the duty of any Under-Sheriff or other officer to whom such order may be directed, to execute the same against the debtor if he be found within his bailiwick. Such order shall be delivered by the creditor or his solicitor to the Under-Sheriff or other officer to whom the same may be directed.

16. If, upon the making of an order for the arrest and imprisonment of a debtor under section twenty-two of the said Act, a creditor so applies and a Justice of the District Court in his discretion thinks fit, it shall be lawful for such Justice to issue and sign several orders in the same words against one debtor directed to different Under-Sheriffs or other officers for execution in different counties, and such orders when issued and signed may be delivered concurrently or from time to time to the different Under-Sheriffs or other officers named therein for execution in the different counties.

17. An order for the arrest and imprisonment of a debtor made by a Justice of the District Court under section twenty or section twenty-two of the said Act shall remain in full force and effect for a period of one year from the date thereof.

18. No Court Fees other than those mentioned in Rule Seven hereof shall be chargeable to or payable by a creditor in respect of any proceedings brought by him in a District Court under Part III. of the said Act, and no order made or summons issued under this Part of these Rules shall require to be stamped with District Court Stamps.

19. All evidence, other than documentary, produced before a Justice of the District Court in the course of proceedings under sections twenty, twenty-one and twenty-two of the said Act shall be given viva-voce and upon oath.

20. Service of any order or summons required by this Part of these Rules to be served upon the debtor shall be effected in manner hereinafter prescribed by a Summons-Server of the District Court or by some person, other than the creditor, who shall be able to read and write, appointed in that behalf, in the case of an order by a Justice of the District Court, and in the case of a summons by the Justice of the District Court, Peace Commissioner or District Court Clerk. Such appointment shall be endorsed on the back of the original of the document to be served and shall be signed by the person making same.

21. Every order and summons by this Part of these Rules required to be served upon a debtor shall be served upon such debtor by delivering to him a copy of such order or summons, or if he cannot be conveniently met with, by leaving such copy for him at his last or most usual place of abode, or at his office, warehouse, counting house, shop, factory or place of business, with some inmate of the house not being under sixteen years of age; and such last-mentioned service shall be deemed sufficient service of such order or summons in every case except where personal service shall be specially required by this Part of these Rules; and in every case the person who shall serve such order or summons shall endorse on the same the time and place where it was served, and shall attend with the same at the hearing of any proceedings to depose, if necessary, to such service.

22. In determining the costs to be paid by a debtor as and for the costs of the proceedings in the District Court and for the costs of any order of arrest and imprisonment under section twenty-two of the said Act a Justice of the District Court shall have regard, inter alia, to the fees paid by the creditor for the service of any order or summons, the Under-Sheriff's fees for the execution of any order under section twenty-two of the said Act, the expenses incurred by a creditor and by any necessary witnesses on his behalf in attending the proceedings before the Court, and any costs incurred by a creditor by the employment of a solicitor on his behalf.

23. No order or proceeding under or by virtue of this part of these Rules shall be treated or considered as invalid on account of any verbal or technical error in the same ; and it shall be lawful for every Justice of the District Court to decide and determine what is a verbal or technical error or mistake in any order or proceeding, but all errors or mistakes which have not a tendency to mislead a debtor shall in all cases be deemed merely verbal or technical.

PART II.—APPEALS.

24. Where an application by a creditor for an examination order under section nineteen of the said Act has been refused by a Justice of the District Court, an application for a similar purpose may, upon his obtaining a certificate of refusal from the District Court Clerk, be made by such creditor by way of appeal to the next sitting of the Circuit Court for the District Court Area in which the debtor ordinarily resides. Such certificate of refusal shall be in accordance with such modification of Form Eight in the Schedule hereto, as may be suitable, and shall be furnished on demand by a District Court Clerk to a creditor or his solicitor. Immediately upon his furnishing a certificate of refusal to a creditor or his solicitor the District Court Clerk shall lodge a duplicate of such certificate, together with all documents lodged with him in connection with the application, with the Clerk of the Peace for the county in which the debtor ordinarily resides.

25. Every appeal, other than that mentioned in the preceding Rule hereof, by a creditor or a debtor to a Circuit Court from any Order made by a Justice of the District Court under Part III. of the said Act shall be made to the next available Circuit Court, having regard to the times for lodging appeals hereinafter provided, for the District Court Area in which such order was made, and shall be by notice signed by the party appealing, or his solicitor, in accordance with such modification of Form Nine in the Schedule hereto, as may be suitable. Such notice shall be lodged with the District Court Clerk and shall be served within four clear days from the day upon which the order appealed from shall have been pronounced. Service of such notice shall be effected on the opposing party or his solicitor personally or by leaving same at their or either of their residences, with a clerk, servant, wife or child, or other person therein over the age of sixteen years; and proof of such service shall be by affidavit made before any Justice of the District Court, Peace Commissioner, or Commissioner for Oaths, which he is hereby empowered to take. On such proof being given the District Court Clerk shall forthwith prepare and sign a certificate of the order appealed from, which certificate shall be in accordance with such modification of Form Ten in the Schedule hereto, as may be suitable, and shall, in the case of an appeal by a creditor, forthwith lodge such notice of appeal, affidavit of service, and certificate of order together with all other documents lodged with him in connection with the case, with the Clerk of the Peace for entry for hearing by the Circuit Court Judge.

26. A debtor, in addition to lodging and serving such notice of appeal as aforesaid shall within three clear days from such lodgment or service, whichever may be last, enter into a recognizance with two sufficient sureties, in such sum as the Justice of the District Court may determine conditioned to reside at such place as was his ordinary place of residence at the time of the service of the examination order upon him, or at some other place within the county where such ordinary place of residence is situate, pending the determination of such appeal, and to attend in person at the Circuit Court and prosecute said appeal. Such recognizance shall be in accordance with such modification of Form Eleven in the Schedule hereto, as may be suitable, and may be taken by a Justice of the District Court or a Peace Commissioner. The reception of such recognizance by the District Court Clerk shall be conclusive evidence that the several provisions herein contained in reference thereto have been complied with. In the event of the debtor failing to enter into such recognizance within the time aforesaid he shall be deemed to have abandoned his right to appeal, and the District Court Clerk shall not take any steps to have the notice of appeal lodged by such debtor brought before the Circuit Court Judge. Upon the reception by him of such recognizance the District Court, Clerk shall forthwith lodge the notice of appeal, recognizance, certificate of order, and affidavit of service together with all other documents lodged with him in connection with the case with the Clerk of the Peace for entry for hearing by the Circuit Court.

27. No Court Fees shall be chargeable to or payable by any creditor or debtor in connection with the procedure for appeal to the Circuit Court, save that a debtor shall pay a fee of two shillings upon any recognizance entered into by him in accordance with the provisions of the preceding Rule hereof, the payment of which fee shall be denoted by the affixing of the appropriate District Court Stamps to such recognizance.

28. These Rules and Orders may be cited as " The Enforcement of Law (Occasional Powers) District Court Rules (No. 1) Order, 1924."

SCHEDULE.

Form I. (Title of Affidavit grounding application for Examination Order.)

SAORSTÁT EIREANN.

District Court of                County of

In the Matter of an intended application

Between

                      Creditor and Plaintiff.

and

Debtor and Defendant.

And in the Matter of the Enforcement of Law (Occasional Powers) Act, 1924 .

Form II. (Examination Order).

SAORSTÁT EIREANN.

The Enforcement of Law (Occasional Powers) Act, 1924 .

District Court of           County of

            Plaintiff.

              Defendant.

Upon application made to the Court this day, and upon reading the affidavit lodged on behalf of the Plaintiff (or upon hearing the oral evidence offered on behalf of the plaintiff), and being satisfied that a sum of £      is now due by the Defendant to the Plaintiff for debt and costs under a judgement of a competent court, namely (set out date of judgement and name of court by which given) . . . and that the Defendant ordinarily resides at     , which is situate within this Court Area and County, and that the Defendant has no goods which could be taken in execution under any process of the Court by which the said judgement was given.

Now I,         , being the Justice of the District Court sitting for this Court Area, do hereby order the Defendant,      of

in the County of          to attend before me or such other Justice of the District Court as may be sitting at the District Court to be held at       in the County of       on the     day of   192  , at  o'clock in the      noon to be examined as to his means. And I do further order that not less than one week before the sitting of the said Court, the Defendant do lodge with the Clerk of the said District Court at the Court House at      a full statement in writing, to be signed by said Defendant, setting forth (1) his assets and liabilities, (2) his income from all sources, (3) the means by which such income is earned or the source from which it is derived, and (4) the persons for whose support he is legally or morally liable.

Dated this    day of       192  .

Justice of the District Court.

To

        of

(the above-named Defendant).

(Note.—A debtor failing to lodge a statement of means in compliance with this Order, or failing to attend at the District Court named and submit himself for cross-examination as to his means, incurs the risk of having an Order made against him for payment in one sum of the full amount due by him and imprisonment consequent upon failure to comply with such Order. A Defendant lodging a statement of means, which to his knowledge is false, may be imprisoned with hard labour for a period not exceeding three months.)

Form III. (Order for Arrest and Imprisonment under Section 20 of said Act.)

(Same Title as in Form II.)

The Defendant having been duly served with an examination order dated the  day of

192  , and having in compliance with said Order lodged with the Clerk of this District Court a statement of his means.

And I being satisfied upon evidence produced before me this day that the said statement of means so lodged is false to the knowledge of the Defendant in certain particulars, namely as to the amount of his income (or as the case may be) have ordered that the said Defendant of in the County of

be arrested and imprisoned in the Prison at

       for a period of

This is to command you to whom this warrant is addressed to arrest the said Defendant and lodge him in the Prison at

        there to be imprisoned for a period of      .

And for this the present warrant shall be a suficient authority to all whom it may concern.

Dated this     day of    192  .

Justice of the District Court.

To

The       of the

Gárda Síochána or Dublin Metropolitan Police.

at      and his assistants.

Form IV. (Order for payment of debts and costs by Instalments or otherwise).

(Same Title as in Form II.)

Upon hearing what was offered this day on behalf of the Plaintiff, and the Defendant having failed to appear, and proof having been given of the due service upon the Defendant of the

Examination Order herein dated the      day of

192    , (or upon hearing what was

offered this day on behalf of the Plaintiff and the Defendant respectively).

It is ordered that the above-named Defendant

of      in the County of     do pay to

the Plaintiff the sum of £        together with interest

thereon at the rate of £4 per centum per annum from the     day of

19   , the date of the judgement (or the sum of £      , being the amount of the debt and costs set forth in the Civil Bill Decree dated the

       day of    19 ) together with

the sum of £    , being the costs of these proceedings, in manner following, namely:—(set out mode in which payment is to be made).

Dated this     day of     192  .

Justice of the District Court.

To

      of

                the above-named Defendant.

Form V. (Summons by Creditor for committal in default of payment).

(Title as in Form II.)

The Defendant is hereby required to attend at the District Court to be held at   in the County of     on the   day of    192  , at  o'clock in the

 noon upon the hearing of an application on behalf of the Plaintiff for an Order that the Defendant be committed to prison for his failure to comply with an Order for Payment made against him on the    day of

     , 192  , or for such other relief as to the Court in the circumstances may seem meet, and for the cost of the application.

Dated this     day of     192  .

To

      of

               Signed.

the above-named Defendant.

Justice of the District Court, Peace Commissioner

or District Court Clerk.

Form VI. (Order for Arrest and Imprisonment under Section 22 of said Act).

(Same Title as in Form II.)

Upon application made this day by the Plaintiff, and proof having been given to my satisfaction of the due service upon the Defendant of the Order for Payment made herein on the

        day of      192   , and of the Defendant's failure to comply with said Order, and having heard what was offered on behalf of the Defendant (or proof having also been given to my satisfaction of due service upon the Defendant of the summons herein dated the       day of      192 ).

It is ordered that the above-named Defendant

of      in the County of     be, for default in payment of £  , being the amount of the first instalment (or as the case may be) of the judgement debt of £  and costs directed to be paid pursuant to the Order made herein and dated the  day of

     , 192  , committed to the Prison at

to be imprisoned there for the period of

unless he or some one on his behalf shall sooner pay to the

Clerk of the District Court at       the sum of £    , being the full amount directed to be paid by said Order of the    day of   192 , together with the sum of £    , being the costs of and incidental to this application, and a further sum of £    , being the fees payable to the Under Sheriff in connection with the execution of this Order.

And it is further ordered that the Under Sheriff of     take the said Defendant for the purpose aforesaid if he be found in his bailiwick.

Dated this     day of     192  .

Justice of the District Court.

Form VII. (Certificate of Payment).

(Same Title as in Form II.)

I hereby certify      that now imprisoned in the Prison at   upon an Order dated the  day of     ,192   , of    ,

Justice of the District Court, at the suit of     , for non-payment of an instalment (or as the case may be) of £        , has satisfied the full amount of the said debt, costs and Sheriff's fees mentioned in the said Order.

Dated this      day of     192 .

District Court Clerk.

Form VIII. (Certificate of Refusal).

(Same Title as in Form I.)

I hereby certify that upon the hearing of an application on the day of   , 192 , by of        , in the County of

for an Order that an Examination Order might issue directed to   of     in the County of        , the Justice of the District Court refused said application.

Dated this     day of   192 .

District Court Clerk.

Form IX. (Notice of Appeal).

(Same Title as in Form II.).

Take notice that I hereby appeal from the Order made by the Justice of the District Court herein on the

day of     192 , to the next Circuit Court for the above-mentioned District Court Area and County.

Dated this     day of       192 .

Signed,

To the District Court Clerk, the Plaintiff or Defendant (as the case may be), or the Solicitor for the Plaintiff or Defendant (as the case may be).

Form X. (Certificate of Order).

(Same Title as in Form II.)

I hereby certify that

(set out shortly nature of proceeding in which Order made).

An Order was made by the District Justice on the

day of       , 192  , to the following effect:—

Dated this     day of      192  .

District Court Clerk.

Form XI. (Recognisance).

(Same Title as in Form II.)

Be it remembered that on the     day of     ,

in the year of Our Lord       , A.B. of

(description) the above-named Defendant, C.D. of

(description) and E.F. of         (description) personally

came before me, a Justice of the District Court in Saorstát Eireann (or a Peace Commissioner for the County of

      ) and severally acknowledged themselves to owe to Saorstát Eireann the several sums following: that is to say, the said A.B, the sum of £   , and the said C.D. and E.F. the sum of £     each, to be made and levied off their several goods and chattels, lands, and tenements respectively to the use of the Minister for Finance of Saorstát Eireann, if he the said A.B. fail in the condition endorsed.

Taken and acknowledged the day and year first abovementioned at

before me

Justice of the District Court or

Peace Commissioner.

The condition of the within-written recognisance is such, in that whereas the said A.B. has appealed to the next sitting of the Circuit Court for the District Court Area and County abovementioned from an Order made against him on the

day of        , 192 , by the Justice of the District

Court under Part III. of the Enforcement of Law (Occasional Powers) Act, 1924 ; if, therefore, the said A.B. will personally appear at the next sitting of the Circuit Court to which such appeal has been taken, and at such sitting or sittings of the said Circuit Court to which the hearing of the said appeal may be adjourned, and prosecute said appeal, and will pending the determination of said appeal reside at such place as was his ordinary place of residence at the time of the service of the Examination Order under Part III. of the Enforcement of Law (Occasional Powers) Act, 1924 , upon him, or at some other place within the County where such ordinary place of residence is situate, then the said recognisance to be void, or else to stand in full force and virtue.