ON APPEAL FROM THE SUPREME COURT OF THE NORTH- Chattel mortgage-Renewal-Time for filing-Identification of goods -Sufficiency of description-Proof of judgment and execution. The ordinance of the North-West Territories relating to chattel mortgages (Ordinance of 1881, No. 5) provides by section 9 that "every mortgage filed in pursuance of this ordinance shall cease to be valid as against the creditors of the persons making the same after the expiration of one year from the filing thereof, unless a statement, etc., is again filed within thirty days next preceding the expiration of the said term of one year." A chattel mortgage was filed on August 12th, 1886, and registered at 4.10 p.m. of that day. A renewal of said mortgage was registered at 11.49 a.m. on August 12th, 1887. Held, affirming the decision of the court below that the renewal was filed within one year from the date of the filing of the original mortgage as provided by the ordinance. Per Patterson, J.-In computing the time mentioned in this section the day of the original filing should be excluded and the mortgagee would have had the whole of the 12th August, 1887, for filing the renewal. Section 6 of the same ordinance provides that: "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 description in a chattel mortgage was as follows: "All and singular the goods, chattels, stock-in-trade, fixtures and store building of the mortgagors, used in or pertaining to their business as general merchants, said stock-in-trade consisting of a full stock of general mer son *XVIII. Can, S.C.R. 695. **PRESENT:-Strong, Fournier, Taschereau, Gwynne and Patter JJ. chandise now being in the store of said mortgagors on the northhalf of section six, township nineteen, range twenty-eight west of the fourth initial meridian." Held, affirming the decision of the court below (1 Terr. L.R. 159), that the description was sufficient. McCall v. Wolff (13 Can. S.C.R. 130) distinguished. Hovey v. Whiting (14 Can. S.C.R. 515) followed. Per Patterson, J., that although the interpleader issue did not contain an express statement that the judgment and execution on which the goods were seized were against the makers of the chattel mortgage, that fact should be inferred. APPEAL from a decision of the Supreme Court of the North-West Territories (a), Rouleau, J., dissenting, reversing the judgment at the trial in favour of the defendants and directing judgment to be entered for the plaintiff, in the interpleader issue with costs. The facts were shortly as follows. The sheriff under an execution at the suit of Thomson, Codville & Co. against Samuel Kirkpatrick and William E. Holmes, seized certain goods and chattels which were claimed by the plaintiff under a chattel mortgage made to him by said Kirkpatrick and Holmes, dated the 12th August, 1886, and registered on the same day at 10 minutes past four o'clock in the afternoon. A renewal of the chattel mortgage was registered on the 12th August, 1887, at 49 minutes past eleven o'clock in the forenoon. The following was the issue directed to be tried: "Whereas John Quirk affirms, and Thomson, Colville & Co. deny, that at the time of seizure by the sheriff, the good seized, namely, the goods and chattels mentioned in a chattel mortgage made by Samuel Kirkpatrick and William E. Holmes to the claimant herein, dated the 12th day of August, A.D. 1886, were the property of the claimant as against the defendants herein the execution creditors, and it has been ordered by the Honourable Mr. Justice Rouleau that the said question shall be tried in the Supreme Court (a) 1 Terr. L.R. 159. 1889 THOMPSON, CODVILLE & Co. บ. QUIRK. 1889 of the North-West Territories, in which said John Quirk THOMPSON, shall be plaintiff and the said Thomson, Codville & Co. & Co. shall be defendants, therefore let the same be tried accordingly." CODVILLE บ. QUIRK. At the trial the chattel mortgage and renewal were put in and the defendants admitted their execution and filing and called no evidence, but rested their case upon their objections. The material part of the chattel mortgage read as follows: "This Indenture made (in duplicate) the 12th day of August, one thousand eight hundred and eighty-six. "Between William Edward Holmes and Samuel Kirkpatrick of High River in the District of Alberta, general merchants, trading at High River, under the name, style and firm of Holmes and Kirkpatrick, hereinafter called the mortgagors of the first part. "And John Quirk of said High River, rancher, hereinafter called the mortgagee of the second part. "Whereas the mortgagee has indorsed four several notes, copies of which are hereto annexed, marked respectively A. B. C. D. for and at the request of the mortgagors, and whereas the said mortgagors have agreed to give these presents to secure the mortgagee against loss or damage on account of such endorsement. Now this indenture witnesseth, that the mortgagors, for and in consideration of the premises and the sum of one dollar of lawful money of Canada, to them in hand well and truly paid by the mortgagee at or before the sealing and delivery of these presents (the receipt whereof is hereby acknowledged) hath granted, bargained, sold, assigned and by these presents doth grant, bargain, sell and assign unto the said mortgagee, his executors, administrators and assigns all and singular the goods, chattels, stock-in-trade, fixtures and store building of the mortgagors used in or pertaining to their business as general merchants, said stock-in-trade consisting of a full stock of general merchandise now being in the store of the said mortgagors on the north half of section six, township nine teen, range twenty-eight, west of the fourth initial meridian. "Also any and all stock purchased by the mortgagors and which may be in their possession upon the said premises during the existence or continuance of this security or any renewal or renewals thereof.' The issue was tried before Rouleau, J., who gave judgment against the plaintiff with costs. On appeal to the full court the judgment at the trial was set aside, Rouleau, J., dissenting, and the defendants thereupon appealed to the Supreme Court of Canada. Christopher Robinson, Q.C., for the appellants. The onus probandi was on the respondent who was plaintiff in the issue. Taylor on Evidence (8 Eng. ed.), secs. 364, 5, 6, 7. Best on Evidence (7 ed.), secs. 265, 266. The onus was on the respondent. The issue, pleadings and case do not disclose or admit in any way that Holmes and Kirkpatrick or the plaintiff or anyone on their behalf or on behalf of either of them were in possession of the goods seized, nor do they disclose that the execution was against the plaintiff's mortgagors. The mere production of the chattel mortgage and the alleged renewal did not prove title to the goods seized by the sheriff: Richards v. Jenkins (b). The question on the facts here proved must be whether the claimant has any interest in the goods. It must be necessary for him to shew that he has some interest, for, if he has none, the evidence must be conclusive in favour of the execution creditor. Grant v. Wilson (c). The appellants were not bound to give any evidence of judgment or execution until the respondent (plaintiff) had made out a case: Holden v. Langley (d); Paterson v. Langley (e); McWhirter v. Learmouth (f); Crapper v. Paterson (g). (b) 18 Q.B.D. 451. (e 11 U.C.C.P. 411. 1889 THOMPSON, CODVILLE & Co. v. QUIRK. 1889 CODVILLE The plaintiff's mortgage was not re-filed in time and THOMPSON, under sec. 9 of Ordinance 5 of 1881, of the North-West Territories, the mortgage ceased to be valid as against execution creditors. & Co. v. QUIRK. The mortgage in question was first filed on the 12th of August, A.D., 1886, at 4.10 p.m., the renewal was not filed until the 12th day of August, A.D., 1887, at 11.49 a.m. The mortgage therefore ceased to be valid after the latest moment of the day of the 11th of August, 1887, that being the expiration of the term of one year. Beatty v. Fowler (h); McMartin v. McDougall (i); Armstrong v. Ausman (j); Stewart v. Brock (k); Barron on Bills of Sale, last edition, 433. Under sec. 6 of the said Ordinance there was not in said mortgage a sufficient and full description of the goods within the meaning of the enactment, and the mortgage was void as against execution creditors. McCall_v.Wolff (l); Nolan v. Donnelly (m). The description of locality of premises is too general to indicate where the said goods are to be found. Wilson v. Kerr (n); Nolan v. Donnelly (nn). Chrysler, for the respondent. The chattel mortgagees at the trial objected and still object that the defendants, Thomson, Codville & Co., under the form of the interpleader issue in this case are obliged to establish that they had recovered a judgment and issued 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 recited in the issue. There is no such recital here. See Chitty, Forms. The plaintiff contends there was a compliance with the requirements of the Ordinance and that the description is (h) 10 U.C.Q.B. 382. (j) 11 U.C.Q.B. 498. (k) 19 Can. Law J. 289. (1) 13 Can. S.C.R. 130. (n) 17 U.C.Q.B. 168. |