ing for any not produced. The plaintiff's attorney was not bound to examine the documents until an affidavit was filed. Mulock, Q.C., for the plaintiff. C. P. Wilson, for the defendant. [DUBUC, J., 20TH JUNE, 1892. HARDY v. DESJARLAIS. Real Property Act-Sale of half-breed lands—Order of Court-Secondary evidence of Substantial compliance with order of Court. Issue under the Real Property Act. Ths lands in question were allotted to the defendant, Napoleon Desjarlais, as his share of the land granted to the children of half-breed heads of families residing in Manitoba at the time of the transfer. The plaintiff claimed that in 1880, under the provisions of an Act respecting infants and their estates, 41 V. c. 7, s. 15, an order of the Court was obtained on the petition of the defendant, then an infant, presented by his father, André Desjarlais, for a sale of the lands, the proceeds to be applied to the maintenance and education of the defendant, the order directing and authorizing the father to execute a conveyance of the lands on conditions therein stated; that under the order the lands were conveyed to the Rev. C. St. Pierre; and that by subsequent conveyances they became vested in the plaintiff. The defendant when he became of age made an application for a certificate of title under the Real Property Act, claiming the lands under his patent from the Crown dated 2nd October, 1882. The plaintiff filed a caveat, and an issue was directed to determine the ownership of the land. To the title set up by the plaintiff, the defendant urged two objections:-1. That the order of the Court authorizing the sale of the lands was not proven to have been made; 2. That, assuming the order to have been made, the conditions on which the lands were, in the order, directed to be conveyed were not performed and he contended that the sale and conveyance were therefore void. : The original order was not produced, but a copy, certified by the registrar to be a true copy. The order directed that the sum of $200 should be accepted for the land; that a sale be made to St. Pierre upon payment into Court of that sum; that, upon such payment into Court for the use, maintenance, and education of the infant, the father be empowered to execute a conveyance of the lands; that the $200 be then paid out to St. Pierre on his executing a bond to the Master of the Court conditioned for the proper expending of the money so entrusted to him. What purported to be a copy of the order was found in a book kept for registering such orders in the office of the registrar of the Court. An office copy was also produced under the seal of the Court with stamps thereon appearing to have been cancelled on 5th August, 1882. Held, that the evidence of loss was sufficient to warrant the admission of the secondary evidence and that such secondary evidence was, as such, as complete as it could be under the circumstances. The order must be held to have been made by the Court. The evidence showed that St. Pierre paid from time to time different sums of money to the father of the infant and that he paid for some provisions and articles required by the father for the maintenance and support of his family. In June, 1881, a considerable portion, if not the whole, of the purchase money had been paid. The formality of paying the money into Court. and out again was gone through on 23rd September, 1881. Held, that the terms of the order having been substantially complied with, the provisions of ss. 1 and 2 of 48 V. c. 30, reproduced in R. S. M. c. 67, ss. 11 and 22, should be considered as fully applying. Verdict entered for the plaintiff. Howell, Q.C., and Mulock, Q.C., for the plaintiff. Ewart, Q.C., and Chaffey, for the defendant. [KILLAM, J., 3RD JUNE, 1892. REGINA v. DAVIDSON. Criminal law-Conviction for gaming-Release of prisoner—Insufficient evidence of "support" by gaming. This was an application for a writ of habeas corpus to bring up a prisoner in custody under conviction and sentence of imprisonment upon a charge of having been, on 11th May, 1892, a person having no peaceable profession or calling to maintain himself by, but who, for the most part, supported himself by gaming, and of then being a loose, idle, and disorderly person, and a vagrant. The most important objection taken was that there was not before the magistrate evidence to warrant the conviction. The charge was laid under R. S. C. c. 157, s. 8, s-s. (k), which provides that all persons who have no peaceable profession or calling to maintain themselves by, but who do, for the most part, support themselves by gaming or crime, or by the avails of prostitution, are loose, idle, or disorderly persons, or vagrants. It was to "gaming" only that there was any pretence that the evidence pointed. Held, that to support the conviction, it was necessary there should be evidence of four distinct propositions : 1. That the accused had no peaceable profession or calling to support himself by. 2. That he practised gaming. 8. That from this practice he derived some substantial profits. 4. That these profits constituted the larger portion of his means of support. There was abundant evidence of the first and second proposi tions, but there was no reasonable evidence to warrant a finding of either the third or fourth proposition. The accused might have neither profession nor calling by which to maintain himself. He might be possessed of sufficient means to enable him to live in idleness or he might be supported by others. He might gamble extensively, and, yet, not derive from the practice any means of support. A few instances of winnings by the accused were mentioned in the evidence, but whether on the whole he won or lost there was nothing to show. The conviction was not supported by evidence of all the facts necessary to support it, and the prisoner must be discharged. Hough, for the prosecution. Howell, Q.C., for the prisoner. [BAIN, J., 25TH MAY, 1892. ROFF v. KROCKER. Replevin-Chattel mortgage-Notice of prior mortgage-Registration where goods "situated"-Mortgagee bound by notice to agent. Action of replevin. In the autumn of 1891 the plaintiff recovered a judgment against one Harder, in the County Court of the Division of Manchester, and he directed the bailiff to try to make the money on the judgment and to use his own discretion as to the means he should employ in making it. All Harder's goods were covered by chattel mortgages except a pair of horses, which were exempt from seizure. The bailiff induced Harder to execute a chattel mortgage on these horses to the plaintiff for the amount of the debt and costs. This mortgage was executed 17th October, 1891, and at this time Harder was living and farming in the County Court Division of Manchester; the horses were at his place when the mortgage was executed, and on 20th October the mortgage was filed by the plaintiff in the County Court office for the Manchester Division. No other mortgage was registered in this Division against these horses, but at the time Walton, the bailiff, took this mortgage for the plaintiff, he (Walton) knew that the horses were already included in a mortgage that Harder had previously executed to the defendants, and that the defendants' mortgage was registered in the adjoining County Court Division of Dufferin. Walton did not appear to have told the plaintiff that there was VOL. XII. C.L.T. DD this prior mortgage, but the defendant Krocker stated that he himself told the plaintiff in September, 1891, that the defendants had a mortgage on Harder's team. The plaintiff, however, stated that it was not till after he had taken his mortgage that Krocker told him of the prior one to the defendants. Harder's mortgage to the defendants was dated 9th December, 1890, and was filed on 13th April, 1891. This mortgage was executed by Harder at the defendants' place, where he had driven with the horses in question with a load of wheat, and at the time the mortgage was executed the horses were in the Division of Dufferin. Default having been made by Harder, the defendants took possession of the team and kept them until they were replevied. The direction of the statute was that the mortgage" shall be filed with the clerk of the County Court of the Judicial Division where the said goods and chattels are situated.” Held, that the Division in which the horses were "situated" was that of their owner's residence and domicil at which they were themselves usually kept. For some time before, and at the time the mortgage to the defendants was executed, Harder's home and domicil were in the Division of Manchester, and it was there he kept his horses, using them on and in connection with his farm. At the moment he executed the mortgage the horses happened to be in the Division of Dufferin by accident and for a merely temporary purpose. The defendants' mortgage then was not filed as directed by the Chattel Mortgage Act. But it was certain that Walton, who took the mortage for the plaintiff, and whose action in taking it the plaintiff fully adopted. had notice when he took the mortgage that the defendants had a prior mortgage on the horses, and, whether the plaintiff himself had notice or not, he must be bound by the notice that Walton had. Walton would not have been a purchaser in good faith had he taken the mortgage on the horses for himself, and the plaintiff could not be in any better position than that in which Walton would have been. Verdict entered for the defendants. Tupper, Q.C., and Phippen, for the plaintiff. |