ARGUED 15th March, 1901. 1901. DECIDED: 12th April, 1901. ACTION on lien notes. In January, 1900, Matheson Statement. & Ingram were indebted to the Bank of Hamilton, the plaintiffs, at their Brandon branch to the extent of about $11,000; and, the bank pressing for payment, they agreed to give security on a number of horses they had on a ranch in Montana. The manager of the bank at Brandon at this time was James C. Brown, and the instrument that Matheson & Ingram executed to carry out their agreement to give the bank security on their horses was dated the 31st of January, 1900, and was made between Matheson & Ingram, of the first part, and "James C. Brown, of the said City of Brandon, Bank Manager, of the second part." After reciting that the 66 parties of the first part are indebted to the Bank of Hamilton and have agreed to give these presents by way of additional security to said bank for their indebtedness to the said bank amounting to the sum of $11,000 or thereabouts," the parties of the first part, "in consideration of the premises and for other valuable considerations them thereby moving, bargain, sell, assign and transfer all their rights, both at law and in equity, of, in, to and out of all their horses in the State of Montana, being some 550 or thereabouts." Then the parties of the first part appointed the party of the second part, or his substitute or substitutes, their attorney for the purpose of selling the horses; and, after a covenant that they would execute such further assignments as might be required to fully and completely vest the horses in the said party of the second part, there was the following stipulation: "It is hereby further agreed that these presents are taken only by way of additional security and shall not be deemed an extension of time to the said parties of the first part or any surety or sureties now or hereafter held by the Statement. said Bank of Hamilton," &c. 1901. After this instrument was executed it was arranged between Brown and Ingram that they were to work to gether to dispose of the horses, and Ingram' was to look after the sales and to pay the proceeds of the sales to the bank and to take any securities he took for the price of the horses payable to the bank. Ingram afterwards brought a number of the horses to Brandon and sold some of them by auction and some by private sale through a man named McRae, who had brought the horses in from Montana. The defendant bought three of the horses at the auc tion and nine more from McRae; and for the price of the horses he gave the three instruments which the plaintiffs sued on as promissory notes. He did not take the horses away from where they were when he bought them; but the evidence showed that after he bought them he arranged with McRae that McRae should keep them for a while for him. McRae stated the defendant told him that if he could get pasturage for the horses the defendant would be responsible for the cost and that he would be able to take the horses in a month or six weeks. McRae thereupon arranged for pasturing the horses and put them on it, and the defendant knew where the horses were and saw them in the pasture. McRae went away in September and did not return until November, and having learned that the defendant had not taken away the horses he went to the pasture and found that three of them had died and that the rest were in a very bad condition, and, to save their lives, he took them and put them with the other horses he had. A number of them died, however, after they were taken in, and only three of the twelve that defendant bought remained alive. The plaintiffs sued to recover from the defendant the sum of $407.20, the amount of the three lien notes which he gave, payable to the plaintiffs, for the price of the twelve horses. H. E. Henderson and R. M. Matheson for plaintiffs. A. D. Cameron for defendant. BAIN, J.-It must be held on the evidence, I think, that the contract of sale between the vendors of the horses and the defendant was completed and that the property in the horses passed to him, and that the vendors are in no way responsible for what has happened to the horses since the defendant bought them. The defence that the consideration for the notes the defendant gave has entirely failed cannot, therefore, be supported. The defence that is set up that the horses were never the property of the plaintiffs cannot be a bar to the action. By The Sale of Goods Act, 1896, s. 12, s-s. 1, a condition is implied on the part of a seller in a contract of sale that he has a right to sell the goods; but under section 11, s-s. (c), a breach of this condition, if there were a breach, could be treated only as a breach of warranty and not as a ground for repudiating the contract. The remaining defence set up is that the plaintiffs are not entitled to maintain the action, because the transaction between them and the defendant is contrary to the provision of section 64 of The Bank Act, which prohibits a bank, except as authorized by the Act, from either directly or indirectly dealing in the buying or selling or bartering of goods, wares or merchandise. But the allegation of the defendant that it was the plaintiffs who sold him the horses is not, I think, borne out by the evidence; and the allegation in the eighth paragraph of the statement of claim, "that the defendant, in consideration of the sale to him of certain horses that had been hypothecated to the plaintiffs, agreed in 1901. Statement. 1901. writing with the plaintiffs to pay the plaintiffs the said Judgment. several sums," &c., seems to be essentially true. BAIN, J. It is clear from Ingram's evidence, as well as from exhibit 4 itself, that Matheson & Ingram executed that instrument with the intention and for the purpose of giving the bank security on their horses; and, while the instrument is in form an absolute bill of sale of the horses to Brown, the parties must have supposed that some interest in the horses was remaining in Matheson & Ingram, as it appoints Brown their attorney for the purpose of selling and disposing of the horses. It was Brown and Ingram between them who arranged for the sale of the horses to the defendant, and they certainly had the full right to sell the horses; and, although Brown was the manager of the bank at the time, the bank was not selling by him as their agent, but he was acting directly under the bill of sale. Since the trial the plaintiffs have applied, pursuant to leave reserved, to amend their statement of claim by alleging that the "sale so made by the plaintiffs to the defendant was made with the assent and concurrence of all parties having any interest in said horses; " but I see no necessity for such an amendment, and it is one that. would not, I think, be consistent with the evidence. The defendant's objection that there is no allegation on the part of the plaintiffs that Brown was a party to, or had agreed to, the sale is not material. By section 68 of The Bank Act "the bank may take hold and dispose of mortgages and hypothèques upon personal or moveable property by way of additional security fer debts contracted to the bank in the course of its business;" and if it were necessary I would be strongly inclined to take the view that the bill of sale to Brown might be regarded as such a mortgage or hupothèque to the bank as this provision permits a bank to take. 1901. I enter judgment for the plaintiffs for $414.84, including interest to the date of the trial, the 15th of March, Judgment. 1901, with costs. Judgment for plaintiffs. BAIN, J. REX V. FINLAY. Before DUBUC, BAIN and RICHARDS, JJ. County Courts Act, R. S. M., c. 33, ss. 74, 204—Replevin in County Courts-Jurisdiction-Officer-Resisting officer in execution of his 'duty-Criminal Code, 1892, S. 144. Section 204 of The County Courts Act, R. S. M., c. 33, does not An order of a County Court Judge for the issue of a writ of re- Parsons v. Lloyd, (1773) 2 W. Bl. 845, and Collett v. Foster, (1857) |