IMAGE EVALUATION TEST TARGET (MT-3) -^ 1.0 £fi^l^ ■» M 123 1.1 l.-^'" I 1^ Ui «" PhotQgraiiiic Sdmces Coiporalion <^ •♦ <«^.*<. >^^^\ ^ ^.V ;\ 33 trmr MAM STISr i>elhnits. AND J(*HN QUIRK (Plaintiff) Ueniiomhut RESPONDENTS FACTUM. LONGIlEEDvfe McCAIiTUY, ISolicilors for Appellantif. McINTYRE, LEWIS ct CODE, Ottawa Agent a. SMITH & WEST, 8ulicUors for liespoiuleri!. STEWART & CIIUYSLER, Ottawa Ayentn. OTTAWA : Printed by A. 8. Woodbuhn, DO El({iii Street 188S In the Supreme Court of Canada. Hotween THOMSON, CODVILLE A CO., ( Defend antb) Appellants. AND JOHN QUIRK (Plaintiff) Respondent. RESPONDENT'S FACTUM. This is an appeal from tho Supreme Court of the North West Territories. The action was commenced in the Northern Alberta Judicial District by an order of Mr. Justice Rouleau directing m issue to be tried in the Supreme Court 10 of the North West Territories in which Joiin Quirk should be plaintiff and Tiiomson, Codville & Co., the now Appellants, defendants. The question to be tried was whether at the time of seizure by the Sheriff tho goods seized which are mentioned and described in a chattel mortgage made by Samuel Kirkpatrick and William E. Holmes to the claimant John Quirk were the property of the said Quirk as against Thomson, Codville & Co. the Claimants The issue was tried at Calgary before Rouleau. J. At the trial the chattel mortgage was produced. The execution and the iiling and renewal of the chattel mortgage were admitted. No other evidence was given. 20 Two objections were taken to the right of the chattel mortgagee to recover. (1) Improper description of the goods. (2) That tlie chattel niortgage was not reliled. 199439 Tlic pluiiititfa CuuiiBcl, wliilu iiiHisting upon tliu validity of tlio chuttol mort- gage, uoiitetidud that tiie dcfcndnnts were not in a position to take advantage of tliese objections iHicause the OiaiinantH hud not proved u judgniunt or execution uguinHt IIohncH and Kirkpatrick the mortgagors, and had therefore not shown thuniselves tu 1)6 entitled to rely upon tiie provisions of tiie ordinance respecting ciiattel mortgages. Judgment was given with costs u^;ainst tiie pluintiti Quirk on the Otli day of September, 1888. Quirk thereupon appealed to tlie Supreme Court of the North West Territo- ries iipon grounds which are disclosed in the notice of motion at page 5 of the 10 ciise. Judgment was delivered on the 7th December ,1888, in favor of Quirk. The present appeal is from that judgment and is brought on behalf of Thomson, Codville & Co. who are now appellants. The judgment is printed at page (i of the case. * The chattel mortgagee at the trial objected and still objects that the defen- dants Thomson, Codville & Co. under the form of the interpleader issue in this ease are obliged to establish that they had recovered a judgment and iB8i:ed execution thereon, and that the cases relied upon by the appellants refer to a form of interpleader issue in which the judgment and execution of the creditor is 20 recited in the issue. There is no such recital here. See Chitty Forma. The defendants rely upon the two objections to the sufficiency of the chattel mortgage taken at the trial. (1) The first is founded upon section 6 of Ordinance number 5 of 1881 which is in these words " All the instruments mentioned in this ordinance whether for '' the mortgage or sale of goods and chattels shall contain such sufficient and full " description thereof that the same may be readily and easily known and " distinguished." The plaintiff contends that the description is abundantly clear and that the goods described in it may by such description be easily known and distinguished. 30 The description is printed at page 4 of the Case. See McVall v. Wolf 13 S. C. R. p. 130. Ilarria v. Commercial Bank, 16 U. a. li. 437-444. Whiting v. Il&vey 14 S. C. R. 515. (2) The second objection to the validity of the chattel mortgage is that the refiling was not a compliance with section 9 of Ordinance 5 of 1881. " Every mortgage tiled in pursuance of this Ordinance shall cease to bo VR»id " as against the creditors of the persons making the same Ojfter the expiration of " one year from the Jiling thereof unless a statement, &c. is again filed within " thirty days next preceding the expiration of the said term of one year." The first answer to this objection is that the date of seizure is not stated in the issue nor anywhere in the case and it does not appear whether the goods were >'M7.qA before or after the expiration of one year from the filing of the original mortgage. The second answer is that if renewal were necessary this chattel mortgage is proved to have been renewed within one year and the requirements of the section 10 were complied with. The r; ition is in the same terms as the Ontario Act, Revised Statutes of Ontario chap. 125 sec. 11, and two Ontario Cases were cited and relied on. Armstrong v. Axiaman 1 1 U. C. It. 498. Stewart v. Brook J 9 C. L. J. 899. In Armstrong v. Aiisman the objection to the renewal was a different one and the point now in question did not really present itself for decision. Stewart v. Brock was a judgment of a County Court Judge who followed out of deference the dictum expressed in Armstrong v. Ausraan. Except these two cases the point is free from authority and the question is the general one 88 20 to the construction of a written document in regard to the computation of time The words are very clear and precis' — " after the expiration of one year frrim the tiling thereof " — The chattel mortage in question was filed on the 12th of August 1886 at ten minutes past four o'clock in the afternoon. The renewal was filed on the same day of the following year, the 12th of August, 1887, at forty nine minutes past eleven in the forenoon. If the day of tiling is excluded as it seems to be by the plain language of the section the mortgagee would have the whole of the same day in the follow- ing year to tile the renewal. If portions of a day are to be taken intb account the year, from the hour and 30 minute of tiling, would not expire until ten minutes past four on the 12th of August, 1887. In either case the renewal was tiled in time and the chattel mortgage retained its validity. Respondent relies upon the judgment of the Court appealed from at page 6, and the authorities there referred to. See also Lister v. Garland 16 Vetey 248. Bawling v. Foxall 1 Ball <& B. 193. 196. In compnting time under the 15 <& 1(> Vic. cap. 5. sec. 2., avoiding letters patent upon failure in payment of stamp duties it was held that the day of the date should be excluded. Williams v. Jfiaah 5 Jur. N. 5, 696. 28 Z. J. Chy. 88G. 28 Beaven 93. Under the statute authorizing goods distrained to be replevied within five days next after the taking, the day of taking was held to be excluded. 10 Robinson v. Waddington 13 A. tfe E. 753. Sutherland v. Buchanan 9 Gr. 135. " There is abundance uf authority that the day is to be construed exclusively wherever anything is to be done in a certain time after a given event or date.'' Per Osier J. iu Hanna v. Johnston 3 O. R. 105. The point there decided was that where a statute enacts that an action shall be commenced within six months after the fact was committed, in computing the time within which the action must be brought the day on which the fact was committed must be excluded so that an action commencd on the 5th June, for an act committed on 5th December, was in time. 20 Hanna v. Johnaton 3, O. R. 100. Earlier cases are referred to in that case and in Edgar v. Magee, 1 0. R- 295 per Hagarty, C. J. The identity of the goods seized with those described in the chattel mortgage h stated as part of the question on the face of the issue. Whether rightly or wrongly the Sheriff did seize the goods described in the chattel mortgage and those goods are the goods in question. The Plaintiff submits that his title to the goods has been clearly established, that the defendants have shown no right to dispute it, and that the judgment appealed from is right and should be affirmed. 30 F. H. CHRYSLER, ' , Counsel for Respondent.